[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1996 Edition]
[From the U.S. Government Publishing Office]


F8091

I95 

I0140 

I02Protection of Environment 

ï¿½iï¿½I03PARTS 1 TO 51 

I04Revised as of July 1, 199ï¿½MDSUï¿½6ï¿½MDNMï¿½

I10CONTAINING 

I10A CODIFICATION OF DOCUMENTS 

I10OF GENERAL APPLICABILITY 

I10AND FUTURE EFFECT

Q06 

I10AS OF JULY 1, 199ï¿½MDSUï¿½6ï¿½MDNMï¿½

Q06 

I11T3With Ancillaries 

I20Published by 

I20the Office of the Federal Register 

I20National Archives and Records 

I20Administration

Q06 

I20as a Special Edition of 

I20the Federal Register 

F80927
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ï¿½iiï¿½I25Q99Q99Q99Q30I25U.S. GOVERNMENT PRINTING OFFICE I25WASHINGTON : 199ï¿½MDSUï¿½6ï¿½MDNMï¿½ I96 I26For sale by U.S. Government Printing OfficeI26Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402ï¿½099328

F80928ï¿½iiiï¿½I01Table of Contents I05T3Page I40Explanation I41v I42Title 40: I43Chapter I_Environmental Protection Agency I413I42Finding Aids: I43Material Approved for Incorporation by Reference I411069I43Table of CFR Titles and Chapters I411071I43Alphabetical List of Agencies Appearing in the CFR I411087I43Redesignation Table I411097I43List of CFR Sections Affected I411101

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I22rn,s,n
I22DT3Cite this Code:T1CFR
I11
I22DT3To cite the regulations in this volume use title, part and section number. Thus, T140 CFR 1.1 T3refers to title 40, part 1, section 1.
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F80088
ï¿½vï¿½I06G4T1Explanation

S8092

I11The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas. 
I11Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: 
Q02
I37Title 1 through Title 16 Las of January 1 

I37Title 17 through Title 27 Las of April 1 

I37Title 28 through Title 41 Las of July 1 

I37Title 42 through Title 50 Las of October 1 

I11The appropriate revision date is printed on the cover of each volume. 
Q02

I10LEGAL STATUS 
Q02

I11The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). 

Q02

S8092


I10HOW TO USE THE CODE OF FEDERAL REGULATIONS 
Q02

I11The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. 

I11To determine whether a Code volume has been amended since its revision date (in this case, July 1, 1996), consult the ``List of CFR Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative List of Parts Affected,'' which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. 
Q02

I10EFFECTIVE AND EXPIRATION DATES 
Q02

I11Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text.
Q02

I10OMB CONTROL NUMBERS
Q02

I11The Paperwork Reduction Act of 1980 (Pub. L. 96ï¿½09511) requires Federal agencies to display an OMB control number with their information collection request. ï¿½viï¿½Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. 
Q02

I10OBSOLETE PROVISIONS 
Q02

I11Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 1986, consult either the List of CFR Sections Affected, 1949ï¿½091963, 1964ï¿½091972, or 1973ï¿½091985, published in seven separate volumes. For the period beginning January 1, 1986, a ``List of CFR Sections Affected'' is published at the end of each CFR volume. 
Q02

I10INCORPORATION BY REFERENCE 
Q02

I11T3What is incorporation by reference? T1Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law. 

I11T3What is a proper incorporation by reference? T1The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are: 

I11(a) The incorporation will substantially reduce the volume of material published in the Federal Register. 

I11(b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process. 

I11(c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51. 

I11Properly approved incorporations by reference in this volume are listed in the Finding Aids at the end of this volume. 

I11T3What if the material incorporated by reference cannot be found? T1If you have any problem locating or obtaining a copy of material listed in the Finding Aids of this volume as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, Washington DC 20408, or call (202) 523ï¿½094534. 
Q02

I10CFR INDEXES AND TABULAR GUIDES 
Q02

I11A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR T4Index and Finding Aids. T1This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I), and Acts Requiring Publication in the Federal Register (Table II). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume. 

I11An index to the text of ``Title 3_The President'' is carried within that volume.

I11The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ``Contents'' entries in the daily Federal Register. 

ï¿½viiï¿½I11A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. 
Q02

I10REPUBLICATION OF MATERIAL
Q02

I11There are no restrictions on the republication of material appearing in the Code of Federal Regulations.
Q02

I10INQUIRIES  
Q02

I11For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency's name appears at the top of oddï¿½09numbered pages.

I11For inquiries concerning CFR reference assistance, call 202ï¿½09523ï¿½095227 or write to the Director, Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408.

I10SALES
Q02

I11The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call 202ï¿½09512ï¿½091800, Mï¿½09F, 8 a.m. to 4 p.m. e.s.t. or fax your order to 202ï¿½09512ï¿½092233, 24 hours a day. For payment by check, write to the Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250ï¿½097954. For GPO Customer Service call 202ï¿½09512ï¿½091803. 


I16T4Richard L. Claypoole, 

I17T3Director, 

I18Office of the Federal Register. 

I19July 1, 1996.


ï¿½MDNMï¿½

F80928ï¿½ixï¿½I02THIS TITLEI11Title 40_T4Protection of EnvironmentT1 is composed of eighteen volumes. The parts in these volumes are arranged in the following order: parts 1ï¿½0951, part 52, parts 53ï¿½0959, part 60, parts 61ï¿½0971, parts 72ï¿½0980, parts 81ï¿½0985, part 86, parts 87ï¿½09135, parts 136ï¿½09149, parts 150ï¿½09189, parts 190ï¿½09259, parts 260ï¿½09299, parts 300ï¿½09399, parts 400ï¿½09424, parts 425ï¿½09699, parts 700ï¿½09789 and part 790 to end. The contents of these volumes represent all current regulations codified under this title of the CFR as of July 1, 1996.Q06I11Chapter I_Environmental Protection Agency appears in all eighteen volumes. A Pesticide Tolerance Commodity/Chemical Index appears in parts 150ï¿½09189. A Toxic Substances Chemical_CAS Number Index appears in parts 700ï¿½09789 and part 790 to end. Redesignation Tables appear in the volumes containing parts 1ï¿½0951, parts 150ï¿½09189, and parts 700ï¿½09789. Regulations issued by the Council on Environmental Quality appear in the volume containing part 790 to end. Q06I11The OMB control numbers for title 40 appear in ï¿½1A9.1 of this chapter. For the convenience of the user, ï¿½1A9.1 appears in the Finding Aids section of the volumes containing parts 52 to the end. Q06I11For this volume,ï¿½MDSUï¿½ Ann Elise Masoï¿½MDNMï¿½ was Chief Editor. The Code of Federal Regulations publication program is under the direction of Frances D. McDonald, assisted by Alomha S. Morris. 





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[[Page 1]]

                                                                     




                   TITLE 40--PROTECTION OF ENVIRONMENT




                   (This book contains parts 1 to 51)

  --------------------------------------------------------------------
                                                                    Part
chapter i--Environmental Protection Agency..................           1

[[Page 3]]





               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY




  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1               Statement of organization and general 
                    information.............................           5
2               Public information..........................          23
3               Employee responsibilities and conduct.......          72
4               Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............          95
5               Tuition fees for direct training............          95
6               Procedures for implementing the requirements 
                    of the Council on Environmental Quality 
                    on the National Environmental Policy Act          97
7               Nondiscrimination in programs receiving 
                    Federal assistance from the 
                    Environmental Protection Agency.........         137
9               OMB approvals under the Paperwork Reduction 
                    Act.....................................         149
10              Administrative claims under Federal Tort 
                    Claims Act..............................         168
11              Security classification regulations pursuant 
                    to Executive Order 11652................         171
12              Nondiscrimination on the basis of handicap 
                    in programs or activities conducted by 
                    the Environmental Protection Agency.....         175
13              Claims collection standards.................         181
14              Employee personal property claims...........         198
16              Implementation of Privacy Act of 1974.......         201
17              Implementation of the Equal Access to 
                    Justice Act in EPA administrative 
                    proceedings.............................         213
20              Certification of facilities.................         218
21              Small business..............................         226
22              Consolidated rules of practice governing the 
                    administrative assessment of civil 
                    penalties and the revocation or 
                    suspension of permits...................         235
23              Judicial review under EPA--Administered 
                    statutes................................         258

[[Page 4]]

24              Rules governing issuance of and 
                    administrative hearings on interim 
                    status corrective action orders.........         260
25              Public participation in programs under the 
                    Resource Conservation and Recovery Act, 
                    the Safe Drinking Water Act, and the 
                    Clean Water Act.........................         267
26              Protection of Human Subjects................         277
27              Program fraud civil remedies................         288
29              Intergovernmental review of Environmental 
                    Protection Agency programs and 
                    activities..............................         304
            SUBCHAPTER B--GRANTS AND OTHER FEDERAL ASSISTANCE
30              Grants and agreements with institutions of 
                    higher education, hospitals, and other 
                    non-profit organizations................         309
31              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         335
32              Governmentwide debarment and suspension 
                    (nonprocurement) and governmentwide 
                    requirements for drug-free workplace 
                    (grants); Clean Air Act and Clean Water 
                    Act ineligibility of facilities in 
                    performance of Federal contracts, grants 
                    and loans...............................         371
34              New restrictions on lobbying................         391
35              State and local assistance..................         403
39              Loan guarantees for construction of 
                    treatment works.........................         628
40              Research and demonstration grants...........         632
45              Training assistance.........................         642
46              Fellowships.................................         644
47              National Environmental Education Act Grants.         647
                       SUBCHAPTER C--AIR PROGRAMS
50              National primary and secondary ambient air 
                    quality standards.......................         650
51              Requirements for preparation, adoption, and 
                    submittal of implementation plans.......         730

  Editorial Note: Subchapter C--Air Programs is continued in the volumes 
containing 40 CFR part 52, parts 53-60, parts 61-80, and parts 81-99.

[[Page 5]]





                          SUBCHAPTER A--GENERAL





PART 1--STATEMENT OF ORGANIZATION AND GENERAL INFORMATION--Table of Contents




                         Subpart A--Introduction

Sec.
1.1  Creation and authority.
1.3  Purpose and functions.
1.5  Organization and general information.
1.7  Location of principal offices.

                         Subpart B--Headquarters

1.21  General.
1.23  Office of the Administrator.
1.25  Staff Offices.
1.27  Offices of the Associate Administrators.
1.29  Office of Inspector General.
1.31  Office of General Counsel.
1.33  Office of Administration and Resources Management.
1.35  Office of Enforcement and Compliance Monitoring.
1.37  Office of External Affairs.
1.39  Office of Policy, Planning and Evaluation.
1.41  Office of Air and Radiation.
1.43  Office of Prevention, Pesticides and Toxic Substances.
1.45  Office of Research and Development.
1.47  Office of Solid Waste and Emergency Response.
1.49  Office of Water.

                     Subpart C--Field Installations

1.61  Regional Offices.

    Authority: 5 U.S.C. 552.

    Source: 50 FR 26721, June 28, 1985, unless otherwise noted.



                         Subpart A--Introduction



Sec. 1.1  Creation and authority.

    Reorganization Plan 3 of 1970, established the U.S. Environmental 
Protection Agency (EPA) in the Executive branch as an independent 
Agency, effective December 2, 1970.



Sec. 1.3  Purpose and functions.

    The U.S. Environmental Protection Agency permits coordinated and 
effective governmental action to assure the protection of the 
environment by abating and controlling pollution on a systematic basis. 
Reorganization Plan 3 of 1970 transferred to EPA a variety of research, 
monitoring, standard setting, and enforcement activities related to 
pollution abatement and control to provide for the treatment of the 
environment as a single interrelated system. Complementary to these 
activities are the Agency's coordination and support of research and 
antipollution activities carried out by State and local governments, 
private and public groups, individuals, and educational institutions. 
EPA reinforces efforts among other Federal agencies with respect to the 
impact of their operations on the environment.



Sec. 1.5  Organization and general information.

    (a) The U.S. Environmental Protection Agency's basic organization 
consists of Headquarters and 10 Regional Offices. EPA Headquarters in 
Washington, DC maintains overall planning, coordination and control of 
EPA programs. Regional Administrators head the Regional Offices and are 
responsible directly to the Administrator for the execution of the 
Agency's programs within the boundaries of their Regions.
    (b) EPA's Directives System contains definitive statements of EPA's 
organization, policies, procedures, assignments of responsibility, and 
delegations of authority. Copies are available for public inspection and 
copying at the Management and Organization Division, 401 M Street SW., 
Washington, DC 20460. Information can be obtained from the Office of 
Public Affairs at all Regional Offices.
    (c) EPA conducts procurement pursuant to the Federal Property and 
Administrative Services Act, the Federal Procurement Regulations, and 
implementing EPA regulations.



Sec. 1.7  Location of principal offices.

    (a) The EPA Headquarters is in Washington, DC. The mailing address 
is 401 M Street SW., Washington, DC 20460.
    (b) The addresss of (and States served by) the EPA Regional Offices 
(see Sec. 1.61) are:

[[Page 6]]

    (1) Region I, U.S. Environmental Protection Agency, room 2203, John 
F. Kennedy Federal Building, Boston, MA 02203. (Connecticut, Maine, 
Massachusetts, New Hampshire, Rhode Island, and Vermont.)
    (2) Region II, U.S. Environmental Protection Agency, Room 900, 26 
Federal Plaza, New York, NY 10278. (New Jersey, New York, Puerto Rico, 
and the Virgin Islands.)
    (3) Region III, U.S. Environmental Protection Agency, 841 Chestnut 
Street, Philadelphia, PA 19107. (Delaware, Maryland, Pennsylvania, 
Virginia, West Virginia, and the District of Columbia.)
    (4) Region IV, U.S. Environmental Protection Agency, 345 Courtland 
Street NE., Atlanta, GA 30365. (Alabama, Florida, Georgia, Kentucky, 
Mississippi, North Carolina, South Carolina, and Tennessee.)
    (5) Region V, U.S. Environmental Protection Agency, 230 South 
Dearborn Street, Chicago, IL 60604. (Illinois, Indiana, Michigan, 
Minnesota, Ohio and Wisconsin.)
    (6) Region VI, U.S. Environmental Protection Agency, 1201 Elm 
Street, Dallas, TX 75270. (Arkansas, Louisiana, New Mexico, Oklahoma, 
and Texas.)
    (7) Region VII, U.S. Environmental Protection Agency, 726 Minnesota 
Avenue, Kansas City, KS 66101. (Iowa, Kansas, Missouri, and Nebraska.)
    (8) Region VIII, U.S. Environmental Protection Agency, 999 18th 
street, One Denver Place, Denver, CO 80202. (Colorado, Montana, North 
Dakota, South Dakota, Utah, and Wyoming.)
    (9) Region IX, U.S. Environmental Protection Agency, 215 Fremont 
Street, San Francisco, CA 94105. (Arizona, California, Hawaii, Nevada, 
American Samoa, Trust Territories of the Pacific Islands, Guam, Wake 
Islands, and the Northern Marianas.)
    (10) Region X, U.S. Environmental Protection Agency, 1200 Sixth 
Avenue, Seattle, WA 98101. (Alaska, Idaho, Oregon, and Washington.)



                         Subpart B--Headquarters



Sec. 1.21  General.

    EPA Headquarters is comprised of:
    (a) The Office of the Administrator;
    (b) Two Associate Administrators and four staff offices which advise 
the Administrator on cross-cutting Agency headquarters and regional 
issues and conduct programs with respect to EPA's interface with other 
national and international governmental organizations;
    (c) The Office of Inspector General;
    (d) The Office of General Counsel; and
    (e) Nine operational offices, each headed by an Assistant 
Administrator, responsible for carrying out EPA's major environmental 
and administrative programs.



Sec. 1.23  Office of the Administrator.

    The Environmental Protection Agency is headed by an Administrator 
who is appointed by the President, by and with the consent of the 
Senate. The Administrator is responsible to the President for providing 
overall supervision to the Agency, and is assisted by a Deputy 
Administrator also appointed by the President, by and with the consent 
of the Senate. The Deputy Administrator assists the Administrator in the 
discharge of Agency duties and responsibilities and serves as Acting 
Administrator in the absence of the Administrator.



Sec. 1.25  Staff Offices.

    (a) Office of Administrative Law Judges. The Office of 
Administrative Law Judges, under the supervision of the Chief 
Administrative Law Judge, is responsible for presiding over and 
conducting formal hearings, and issuance of initial decisions, if 
appropriate, in such proceedings. The Office provides supervision of the 
Administrative Law Judges, who operate as a component of the Office of 
Administrative Law Judges, in certain Agency Regional Offices. The 
Office provides the Agency Hearing Clerk.
    (b) Office of Civil Rights. The Office of Civil Rights, under the 
supervision of a Director, serves as the principal adviser to the 
Administrator with respect to EPA's civil rights programs. The Office 
develops policies, procedures, and regulations to implement the Agency's 
civil rights responsibilities, and provides direction to Regional and 
field activities in the Office's area of responsibilities. The Office 
implements and

[[Page 7]]

monitors the Agency's equal employment opportunity program; provides 
advice and guidance to EPA program officials and Regional Administrators 
on EEO matters; serves as advocate for furthering career opportunities 
for minorities and women; and processes complaints of discrimination for 
Agency disposition. The office assures:
    (1) Maximum participation of minority business enterprises under EPA 
contracts and grants;
    (2) Equal employment opportunity under Agency service contracts, 
construction contracts, and grants;
    (3) Compliance with the Davis-Bacon Act and related acts;
    (4) Compliance with the provisions of laws affecting Agency programs 
requiring nondiscrimination on account of age and physical handicap and;
    (5) Services or benefits are dispensed under any program or activity 
receiving Agency financial assistance on a nondiscrimination basis.
    (c) Science Advisory Board. The Science Advisory Board, under the 
direction of a Director, provides expert and independent advice to the 
Administrator on the scientific and technical issues facing the Agency. 
The Office advises on broad, scientific, technical and policy matters; 
assesses the results of specific research efforts; assists in 
identifying emerging environmental problems; and advises the 
Administrator on the cohesiveness and currency of the Agency's 
scientific programs.
    (d) Office of Small and Disadvantaged Business Utilization. The 
Office of Small and Disadvantaged Business Utilization, under the 
supervision of a Director, is responsible for developing policy and 
procedures implementing the Agency's small and disadvantaged business 
utilization responsibilities. The Office provides information and 
assistance to components of the Agency's field offices responsible for 
carrying out related activities. The Office develops and implements a 
program to provide the maximum utilization of women-owned business 
enterprises in all aspects of EPA contract work; in collaboration with 
the Procurement and Contracts Management Division, develops programs to 
stimulate and improve involvement of small and minority business 
enterprises; and recommends the assignment of technical advisers to 
assist designated Procurement Center Representatives of the Small 
Business Administration in their duties. The Office represents EPA at 
hearings, interagency meetings, conferences and other appropriate forums 
on matters related to the advancement of these cited business 
enterprises in EPA's Federal Contracting Program.
    (e)(1) Environmental Appeals Board. The Environmental Appeals Board 
is a permanent body with continuing functions composed of three Board 
Members designated by the Administrator. The Environmental Appeals Board 
shall decide each matter before it in accordance with applicable 
statutes and regulations. The Environmental Appeals Board shall decide 
each matter by majority vote. Two Board Members constitute a quorum, and 
if the absence or recusal of a Board Member so requires, the Board shall 
sit as a Board of two Members. In the case of a tie vote, the matter 
shall be referred to the Administrator to break the tie.
    (2) Functions. The Environmental Appeals Board shall exercise any 
authority expressly delegated to it in this title. With respect to any 
matter for which authority has not been expressly delegated to the 
Environmental Appeals Board, the Environmental Appeals Board shall, at 
the Administrator's request, provide advice and consultation, make 
findings of fact and conclusions of law, prepare a recommended decision, 
or serve as the final decisionmaker, as the Administrator deems 
appropriate. In performing its functions, the Environmental Appeals 
Board may consult with any EPA employee concerning any matter governed 
by the rules set forth in this title, provided such consultation does 
not violate applicable ex parte rules in this title.
    (3) Qualifications. Each member of the Environmental Appeals Board 
shall be a graduate of an accredited law school and a member in good 
standing of a recognized bar association of any state or the District of 
Columbia. Board Members shall not be employed by the Office of 
Enforcement, the Office of the General Counsel, a Regional Office, or 
any other office directly associated

[[Page 8]]

with matters that could come before the Environmental Appeals Board. A 
Board Member shall recuse himself or herself from deciding a particular 
case if that Board Member in previous employment performed prosecutorial 
or investigative functions with respect to the case, participated in the 
preparation or presentation of evidence in the case, or was otherwise 
personally involved in the case.

[50 FR 26721, June 28, 1985, as amended at 57 FR 5323, Feb. 13, 1992]



Sec. 1.27  Offices of the Associate Administrators.

    (a) Office of International Activities. The Office of International 
Activities, under the supervision of an Associate Administrator, 
provides direction to and supervision of the activities, programs, and 
staff assigned to the Office of International Activities. All of the 
functions and responsibilities of the Associate Administrator are 
Agencywide, and apply to all international activities of the Agency. The 
Office develops policies and procedures for the direction of the 
Agency's international programs and activities, subject to U.S. foreign 
policy, and assures that adequate program, scientific, and legal inputs 
are provided. It conducts continuing evaluations of the Agency's 
international activities and makes appropriate recommendations to the 
Administrator. The Office advises the Administrator and principal Agency 
officials on the progress and effect of foreign and international 
programs and issues. The Office serves as the Administrator's 
representative in contacts with the Department of State and other 
Federal agencies concerned with international affairs. It negotiates 
arrangements or understandings relating to international cooperation 
with foreign organizations. The Office coordinates Agency international 
contacts and commitments; serves as the focal point for responding to 
requests for information relating to EPA international activities; and 
provides an initial point of contact for all foreign visitors. The 
Office maintains liaison with all relevant international organizations 
and provides representation where appropriate. It establishes Agency 
policy, and approves annual plans and modifications for travel abroad 
and attendance at international conferences and events. It provides 
administrative support for the general activities of the Executive 
Secretary of the U.S. side of the US-USSR/PRC agreements on 
environmental protection and of the U.S. Coordinator for the NATO 
Committee on the Challenges of Modern Society. The Office supervises 
these programs with respect to activities which are completely within 
the purview of EPA.
    (b) Office of Regional Operations. The Office of Regional 
Operations, under the supervision of an Associate Administrator, reports 
directly to the Administrator and Deputy Administrator. The Office 
serves as the primary communications link between the Administrator/
Deputy Administrator and the Regional Administrators. It provides a 
Headquarters focus for ensuring the involvement of Regions, or 
consideration of Regional views and needs, in all aspects of the 
Agency's work. The Office is responsible for assuring Regional 
participation in Agency decision-making processes, assessing the impact 
of Headquarters actions on Regional operations, and acting as ombudsman 
to resolve Regional problems on behalf of the Administrator. The 
Associate Administrator coordinates Regional issues, organizes Regional 
Administrator meetings and work groups; and coordinates Regional 
responses to specific issues. In addition, the Office is responsible for 
working with the Regional Offices to further the consistent application 
of national program policies by reinforcing existing administrative, 
procedural, and program policy mechanisms as well as through initiation 
of reviews of significant Regional issues of interest to the 
Administrator. It continually monitors responsiveness and compliance 
with established policies and technical needs through formal and 
informal contact and free dialogue. The Office initiates and conducts 
on-site field visits to study, analyze, and resolve problems of 
Regional, sectional, and national scale.



Sec. 1.29  Office of Inspector General.

    The Office of Inspector General assumes overall responsibility for 
audits

[[Page 9]]

and investigations relating to EPA programs and operations. The Office 
provides leadership and coordination and recommends policies for other 
Agency activities designed to promote economy and efficiency and to 
prevent and detect fraud and abuse is such programs and operations. The 
Office of the Inspector General informs the Administrator, Deputy 
Administrator, and Congress of serious problems, abuses and deficiencies 
relating to EPA programs and operations, and of the necessity for and 
progress of corrective action; and reviews existing and proposed 
legislation and regulations to assess the impact on the administration 
of EPA's programs and operations. The Office recommends policies for, 
and conducts or coordinates relationships between, the Agency and other 
Federal, State and local government agencies, and nongovernmental 
entities on all matters relating to the promotion of economy and 
efficiency in the administration of, or the prevention and detection of 
fraud and abuse in, programs and operations administered by the Agency.



Sec. 1.31  Office of General Counsel.

    The Office of General Counsel is under the supervision of the 
General Counsel who serves as the primary legal adviser to the 
Administrator. The office provides legal services to all organizational 
elements of the Agency with respect to all Agency programs and 
activities and also provides legal opinions, legal counsel, and 
litigation support; and assists in the formulation and administration of 
the Agency's policies and programs as legal adviser.



Sec. 1.33  Office of Administration and Resources Management.

    The Office of Administration and Resources Management is under the 
supervision of the Assistance Administrator for Administration and 
Resources Management who provides services to all of the programs and 
activities of the Agency, except as may be specifically noted. In 
addition, the Assistant Administrator has primary responsibility 
Agencywide for policy and procedures governing the functional areas 
outlined below. The major functions of the Office include resources 
management and systems (including budget and financial management), 
personnel services, occupational health and safety, administrative 
services, organization and management analysis and systems development, 
information management and services, automated data processing systems, 
procurement through contracts and grants, and human resources 
management. This Office is the primary point of contact and manages 
Agencywide internal controls, audit resolution and follow up, and 
government-wide management improvement initiatives. In the performance 
of the above functions and responsibilities, the Assistant Administrator 
for Administration and Resources Management represents the Administrator 
in communications with the Office of Management and Budget, Office of 
Personnel Management, General Accounting Office, General Services 
Administration, Department of the Treasury, and other Federal agencies 
prescribing requirements for the conduct of Government budget, fiscal 
management and administrative activities.
    (a) Office of Administration and Resources Management, Research 
Triangle Park, North Carolina, (RTP). The Office of Administration and 
Resources Management (OARM), RTP, under the supervision of a Director, 
provides services to all of the programs and activities at RTP and 
certain financial and automated data processing services Agencywide. The 
major functions of the Office include personnel services, financial 
management, procurement through contracts, library and other information 
services, general services (including safety and security, property and 
supply, printing, distribution, facilities and other administrative 
services) and providing both local RTP and Agencywide automated data 
processing systems services. The Director, OARM, RTP, supervises the 
Office of Administration, Financial Management and Data Processing, RTP.
    (b) Office of Administration, Cincinnati, Ohio. The Office of 
Administration at Cincinnati, Ohio, under the supervision of a Director, 
provides and administers personnel, procurement, safety and security, 
property and supply, printing,

[[Page 10]]

distribution, facilities, and other administrative service programs at 
Cincinnati and other specified geographic locations.
    (c) Office of the Comptroller. The Office of the Comptroller, under 
the supervision of the Comptroller, is responsible for Agencywide 
budget, resources management and financial management functions, 
including program analysis and planning; budget formulation, preparation 
and execution; funding allotments and allocations; and developing and 
maintaining accounting systems, fiscal controls, and systems for payroll 
and disbursements. The Assistant Administrator's resource systems 
responsibilities are administered by this Office.
    (d) Office of Administration. The Office of Administration, under 
the supervision of a Director, is responsible for the development and 
conduct of programs for personnel policies, procedures and operations; 
organization and management systems, control, and services; facilities, 
property and space management; personnel and property security; 
policies, procedures, and operations related to procurement through 
grants, contracts, and interagency agreements; and occupational health 
and safety.
    (e) Office of Information Resources Management. The Office of 
Information Resources Management (OIRM), under the supervision of a 
Director, provides for an information resource management program (IRM) 
consistent with the provisions of Public Law 96-511. The Office 
establishes policy, goals and objectives for implementation of IRM; 
develops annual and long-range plans and budgets for IRM functions and 
activities; and promotes IRM concepts throughout the Agency. The Office 
coordinates IRM activities; plans, develops and operates information 
systems and services in support of the Agency's management and 
administrative functions, and other Agency programs and functions as 
required. The Office oversees the performance of these activities when 
carried out by other Agency components. The Office performs liaison for 
interagency sharing of information and coordinates IRM activities with 
OMB and GSA. The Office ensures compliance with requirements of Public 
Law 96-511 and other Federal laws, regulations, and guidelines relative 
to IRM; and chairs the Agency's IRM Steering Committee. The Office 
develops Agency policies and standards; and administers or oversees 
Agency programs for library systems and services, internal records 
management, and the automated collection, processing, storage, retrieval 
and transmission of data by or for Agency components and programs. The 
Office provides national program policy and technical guidance for: The 
acquisition of all information technology, systems and services by or 
for Agency components and programs, inculding those systems and services 
acquired by grantees and contractors using Agency funds; the operation 
of all Agency computers and telecommunications hardware and facilities; 
and the establishment and/or application of telecommunications and 
Federal information processing standards. The Office reviews and 
evaluates information systems and services, including office automation, 
which are operated by other Agency components; and sets standards for 
and approves the selection of Agency personnel who are responsible for 
the technical management of these activities. The Office coordinates its 
performance of these functions and activities with the Agency's 
information collection policies and budgets managed by the Office of 
Policy, Planning and Evaluation.
    (f) The Office of Human Resources Management. The Office of Human 
Resources Management (OHRM), under the supervision of a Director, 
designs strategies, plans, and policies aimedat developing and training 
all employees, revitalizing EPA organizations, and matching the right 
people with the right jobs. The Office is responsible for developing and 
assuring implementation of policies and practices necessary for EPA to 
meet its present and future workforce needs. This includes consideration 
of the interrelationships between the environmental protection workforce 
needs of EPA and State governments. For Senior Executive Service (SES) 
personnel, SES candidates, Presidential Executive Interchange 
Participants, and Management Interns, OHRM establishes policies; 
assesses and projects Agency executive needs

[[Page 11]]

and workforce capabilities; creates, establishes, and implements 
training and development strategies and programs; provides the full 
range of personnel functions; supports the Performance Review Board 
(PRB) and the Executive Resources Board (ERB); and reassigns SES 
personnel with the concurrence of the ERB. For the areas of workforce 
management and employee and organizational development, OHRM develops 
strategies, plans, and policies; coordinates Agencywide implementation 
of those strategies, plans, and policies; and provides technical 
assistance to operating personnel offices and States. OHRM, in 
cooperation with the Office of the Comptroller, evaluates problems with 
previous workyear use, monitors current workyear utilization, and 
projects future workyear needs in coordination with the Agency's budget 
process. The Office is the lead office for coordination of human 
resources management with the Agency's Strategic Planning and Management 
System. The Office develops methodologies and procedures for evaluations 
of Agency human resources management activities; conducts evaluations of 
human resources management activities Agencywide; and carries out human 
resources management projects of special interest to Agency management. 
The Office coordinates its efforts with the Office of Administration 
(specifically the Personnel Management Division and the Management and 
Organization Division), the Office of the Comptroller, the Office of 
Information Resources Management, and the Office of Policy, Planning and 
Evaluation.



Sec. 1.35  Office of Enforcement and Compliance Monitoring.

    The Office of Enforcement and Compliance Monitoring, under the 
supervision of the Assistant Administrator for Enforcement and 
Compliance Monitoring, serves as the principal adviser to the 
Administrator in matters concerning enforcement and compliance; and 
provides the principal direction and review of civil enforcement 
activities for air, water, waste, pesticides, toxics, and radiation. The 
Assistant Administrator reviews the efforts of each Assistant and 
Regional Administrator to assure that EPA develops and conducts a strong 
and consistent enforcement and compliance monitoring program. The Office 
manages the national criminal enforcement program; ensures coordination 
of media office administrative compliance programs, and civil and 
criminal enforcement activities; and provides technical expertise for 
enforcement activities.



Sec. 1.37  Office of External Affairs.

    (a) Office of Federal Activities. The Office of Federal Activities 
is headed by a Director who reports to the Assistant Administrator for 
External Affairs and supervises all the functions of the Office. The 
Director acts as national program manager for five major programs that 
include:
    (1) The review of other agency environmental impact statements and 
other major actions under the authority of Section 309 of the Clean Air 
Act;
    (2) EPA compliance with the National Environmental Policy Act (NEPA) 
and related laws, directives, and Executive policies concerning special 
environmental areas and cultural resources;
    (3) Compliance with Executive policy on American Indian affairs and 
the development of programs for environmental protection on Indian 
lands; and
    (4) The development and oversight of national programs and internal 
policies, strategies, and procedures for implementing Executive Order 
12088 and other administrative or statutory provisions concerning 
compliance with environmental requirements by Federal facilities. The 
Director chairs the Standing Committee on Implementation of Executive 
Order 12088. The Office serves as the Environmental Protection Agency's 
(EPA) principal point of contact and liaison with other Federal agencies 
and provides consultation and technical assistance to those agencies 
relating to EPA's areas of expertise and responsibility. The Office 
administers the filing and information system for all Federal 
Environmental Impact Statements under agreement with the Council on 
Environmental Quality (CEQ) and provides liaison with CEQ on this 
function and related matters of NEPA program administration. The Office 
provides a central point of information for EPA and the

[[Page 12]]

public on environmental impact assessment techniques and methodologies.
    (b) Office of Public Affairs. The Office of Public Affairs is under 
the supervision of a Director who serves as chief spokesperson for the 
Agency and as a principal adviser, along with the Assistant 
Administrator for External Affairs, to the Adminstrator, Deputy 
Administrator, and Senior Management Officials, on public affairs 
aspects of the Agency's activities and programs. The Office of Public 
Affairs provides to the media adequate and timely information as well as 
responses to queries from the media on all EPA program activities. It 
assures that the policy of openness in all information matters, as 
enunciated by the Administrator, is honored in all respects. Develops 
publications to inform the general public of major EPA programs and 
activities; it also develops informational materials for internal EPA 
use in Headquarters and at the Regions, Labs and Field Offices. It 
maintains clearance systems and procedures for periodicals and 
nontechnical information developed by EPA for public distribution, and 
reviews all publications for public affairs interests. The Office of 
Public Affairs provides policy direction for, and coordination and 
oversight of EPA's community relations program. It provides a system for 
ensuring that EPA educates citizens and responds to their concerns about 
all environmental issues and assures that there are opportunities for 
public involvement in the resolution of problems. The Office supervises 
the production of audio-visual materials, including graphics, radio and 
video materials, for the general public and for internal audiences, in 
support of EPA policies and programs. The Office provides program 
direction and professional review of the performance of public affairs 
functions in the Regional Offices of EPA, as well as at laboratories and 
other field offices. The Office of Public Affairs is responsible for 
reviewing interagency agreements and Headquarters purchase request 
requisitions expected to result in contracts in the area of public 
information and community relations. It develops proposals and reviews 
Headquarters grant applications under consideration when public affairs 
goals are involved.
    (c) Office of Legislative Analysis. The Office of Legislative 
Analysis, under the supervision of a Director who serves in the capacity 
of Legislative Counsel, is responsible for legislative drafting and 
liaison activities relating to the Agency's programs. It exercises 
responsibility for legislative drafting; reports to the Office of 
Management and Budget and congressional committees on proposed 
legislation and pending and enrolled bills, as required by OMB Circular 
No. A-19 and Bulletin No. 72-6; provides testimony on legislation and 
other matters before congressional committees; and reviews transcripts 
of legislative hearings. It maintains liaison with the Office of 
Congressional Liaison on all Agency activities of interest to the 
Congress. The Office works closely with the staffs of various Assistant 
Administrators, Associate Administrators, Regional Administrators, and 
Staff Office Directors in accordance with established Agency procedures, 
in the development of the Agency's legislative program. The Office 
assists the Assistant Administrator for External Affairs and the 
Agency's senior policy officials in guiding legislative initiatives 
through the legislative process. It advises the Assistant Administrator 
for Administration and Resources Management in matters pertaining to 
appropriations legislation. It works closely with the Office of Federal 
Activities to assure compliance with Agency procedures for the 
preparation of environmental impact statements, in relation to proposed 
legislation and reports on legislation. The Office coordinates with the 
Office of Management and Budget, other agencies, and congressional staff 
members on matters within its area of responsibility; and develops 
suggested State and local environmental legislative proposals, using 
inputs provided by other Agency components. The Legislative Reference 
Library provides legislative research services for the Agency. The 
Library secures and furnishes congressional materials to all EPA 
employees and, if available, to other Government agencies and private 
organizations; and it also provides the service of securing, upon 
request, EPA reports and materials for the Congress.

[[Page 13]]

    (d) Office of Congressional Liaison. The Office of Congressional 
Liaison is under the supervision of a Director who serves as the 
principal adviser to the Administrator with respect to congressional 
activities. All of the functions and responsibilities of the Director 
are Agencywide and apply to the provision of services with respect to 
all of the programs and activities of the Agency. The Office serves as 
the principal point of congressional contact with the Agency and 
maintains an effective liaison with the Congress on Agency activities of 
interest to the Congress and, as necessary, maintains liaison with 
Agency Regional and field officials, other Government agencies, and 
public and private groups having an interest in legislative matters 
affecting the Agency. It assures the provision of prompt response to the 
Congress on all inquiries relating to activities of the Agency; and 
monitors and coordinates the continuing operating contacts between the 
staff of the Office of the Comptroller and staff of the Appropriations 
Subcommittees of Congress.
    (e) Office of Community and Intergovernmental Relations. The Office 
of Community and Intergovernmental Relations is under the supervision of 
a Director who serves as the principal point of contact with public 
interest groups representing general purpose State and local 
governments, and is the principal source of advice and information for 
the Administrator and the Assistant Administrator for External Affairs 
on intergovernmental relations. The Office maintains liaison on 
intergovernmental issues with the White House and Office of Management 
and Budget (OMB); identifies and seeks solutions to emerging 
intergovernmental issues; recommends and coordinates personal 
involvement by the Administrator and Deputy Administrator in relations 
with State, county, and local government officials; coordinates and 
assists Headquarters components in their handling of broad-gauged and 
issue-oriented intergovernmental problems. It works with the Regional 
Administrators and the Office of Regional Operations to encourage the 
adoption of improved methods for dealing effectively with State and 
local governments on specific EPA program initiatives; works with the 
Immediate Office of the Administrator, Office of Congressional Liaison, 
Office of Public Affairs, and the Regional Offices to develop and carry 
out a comprehensive liaison program; and tracks legislative initiatives 
which affect the Agency's intergovernmental relations. It advises and 
supports the Office Director in implementing the President's 
Environmental Youth Awards program.

[50 FR 26721, June 28, 1985, as amended at 52 FR 30359, Aug. 14, 1987]



Sec. 1.39  Office of Policy, Planning and Evaluation.

    The Assistant Administrator for Policy, Planning and Evaluation 
services as principal adviser to the Administrator on Agency policy and 
planning issues and as such is responsible for supervision and 
management of the following: Policy analysis; standards and regulations; 
and management strategy and evaluation. The Assistant Administrator 
represents the Administrator with Congress and the Office of Management 
and Budget, and other Federal agencies prescribing requirements for 
conduct for Government management activities.
    (a) Office of Policy Analysis. The Office of Policy Analysis is 
under the supervision of a Director who performs the following functions 
on an Agencywide basis: economic analysis of Agency programs, policies, 
standards, and regulations, including the estimation of abatement costs; 
research into developing new benefits models; benefit-cost analyses; 
impact assessments; intermediate and long-range strategic studies; 
consultation and analytical assistance in the areas described above to 
senior policy and program officials and other offices in the Agency; 
development and coordination proposals for major new Agency initiatives; 
liaison with other agencies; universities, and interest groups on major 
policy issues and development of a coordinated Agency position; and 
development of integrated pollution control strategies for selected 
industrial and geographical areas.
    (b) Office of Standards and Regulations. The Office of Standards and 
Regulations is under the supervision of a

[[Page 14]]

Director who is responsible for: involving the Office of Policy, 
Planning and Evaluation (OPPE) in regulatory review; conducting 
technical and statistical analyses of proposed standards, regulations 
and guidelines; serving as the Agency focal point for identifying, 
developing and implementing alternatives to conventional ``command and 
control'' regulations; conducting analyses of Agency activities related 
to chemical substances and providing mechanisms for establishing 
regulatory priorities and resolving scientific issues affecting 
rulemaking; ensuring Agency compliance with the Paperwork Reduction Act; 
evaluating and reviewing all Agency information collection requests and 
activities, and, in cooperation with the Office of Administration and 
Resources Management and the Office of Management Systems and 
Evaluation, evaluating Agency management and uses of data for decision-
making.
    (c) Office of Management Systems and Evaluation. The Office of 
Management Systems and Evaluation is under the supervision of a Director 
who directs and coordinates the development, implementation and 
administration of Agencywide systems for planning, tracking, and 
evaluating the accomplishments of Agency programs. In consultation with 
other offices, the Office develops a long-range policy framework for 
Agency goals, and objectives, identifies strategies for achieving goals, 
establishes timetables for objectives, and ensures that programs are 
evaluated against their accomplishments of goals.



Sec. 1.41  Office of Air and Radiation.

    The Office of Air and Radiation is under supervision of the 
Assistant Administrator for Air and Radiation who serves as principal 
adviser to the Administrator in matters pertaining to air and radiation 
programs, and is responsible for the management of these EPA programs: 
Program policy development and evaluation; environmental and pollution 
sources' standards development; enforcement of standards; program policy 
guidance and overview, technical support or conduct of compliance 
activities and evaluation of Regional air and radiation program 
activities; development of programs for technical assistance and 
technology transfer; and selected demonstration programs.
    (a) Office of Mobile Sources. The Office of Mobile Sources, under 
the supervision of a Director, is responsible for the mobile source air 
pollution control functions of the Office of Air and Radiation. The 
Office is responsible for: Characterizing emissions from mobile sources 
and related fuels; developing programs for their control, including 
assessment of the status of control technology and in-use vehicle 
emissions; for carrying out, in coordination with the Office of 
Enforcement and Compliance Monitoring as appropriate, a regulatory 
compliance program to ensure adherence of mobile sources to standards; 
and for fostering the development of State motor vehicles emission 
inspection and maintenance programs.
    (b) Office of Air Quality Planning and Standards. The Office of Air 
Quality Planning and Standards, under the supervision of a Director, is 
responsible for the air quality planning and standards functions of the 
Office of Air and Radiation. The Director for Air Quality Planning and 
Standards is responsible for emission standards for new stationary 
sources, and emission standards for hazardous pollutants; for developing 
national programs, technical policies, regulations, guidelines, and 
criteria for air pollution control; for assessing the national air 
pollution control program and the success in achieving air quality 
goals; for providing assistance to the States, industry and other 
organizations through personnel training activities and technical 
information; for providing technical direction and support to Regional 
Offices and other organizations; for evaluating Regional programs with 
respect to State implementation plans and strategies, technical 
assistance, and resource requirements and allocations for air related 
programs; for developing and maintaining a national air programs data 
system, including air quality, emissions and other technical data; and 
for providing effective technology transfer through the translation of 
technological developments into improved control program procedures.

[[Page 15]]

    (c) Office of Radiation Programs. The Office of Radiation Programs, 
under the supervision of a Director, is responsible to the Assistant 
Administrator for Air and Radiation for the radiation activities of the 
Agency, including development of radiation protection criteria, 
standards, and policies; measurement and control of radiation exposure; 
and research requirements for radiation programs. The Office provides 
technical assistance to States through EPA Regional Offices and other 
agencies having radiation protection programs; establishes and directs a 
national surveillance and investigation program for measuring radiation 
levels in the environment; evaluates and assesses the impact of 
radiation on the general public and the environment; and maintains 
liaison with other public and private organizations involved in 
environmental radiation protection activities. The Office coordinates 
with and assists the Office of Enforcement and Compliance Monitoring in 
enforcement activities where EPA has jurisdiction. The Office provides 
editorial policy and guidance, and assists in preparing publications.



Sec. 1.43  Office of Prevention, Pesticides and Toxic Substances.

    The Assistant Administrator serves as the principal adviser to the 
Administrator in matters pertaining to assessment and regulation of 
pesticides and toxic substances and is responsible for managing the 
Agency's pesticides and toxic substances programs under the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA); the Federal Food, 
Drug, and Cosmetic Act; the Toxic Substances Control Act (TSCA); and for 
promoting coordination of all Agency programs engaged in toxic 
substances activities. The Assistant Administrator has responsibility 
for establishing Agency strategies for implementation and integration of 
the pesticides and the toxic substances programs under applicable 
Federal statutes; developing and operating Agency programs and policies 
for assessment and control of pesticides and toxic substances; 
developing recommendations for Agency priorities for research, 
monitoring, regulatory, and information-gathering activities relating to 
pesticides and toxic substances; developing scientific, technical, 
economic, and social data bases for the conduct of hazard assessments 
and evaluations in support of toxic substances and pesticides 
activities; directing pesticides and toxic substances compliance 
programs; providing toxic substances and pesticides program guidance to 
EPA Regional Offices; and monitoring, evaluating, and assessing 
pesticides and toxic substances program operations in EPA Headquarters 
and Regional Offices.
    (a) Office of Pesticide Programs. The Office of Pesticide Programs, 
under the management of a Director and Deputy Director are responsible 
to the Assistant Administrator for leadership of the overall pesticide 
activities of the Agency under the authority of the Federal Insecticide, 
Fungicide, and Rodenticide Act and several provisions of the Federal 
Food, Drug, and Cosmetic Act, including the development of strategic 
plans for the control of the national environmental pesticide situation. 
Such plans are implemented by the Office of Pesticide Programs, other 
EPA components, other Federal agencies, or by State, local, and private 
sectors. The Office is also responsible for establishment of tolerance 
levels for pesticide residues which occur in or on food; registration 
and reregistration of pesticides; special review of pesticides suspected 
of posing unreasonable risks to human health or the environment; 
monitoring of pesticide residue levels in food, humans, and nontarget 
fish and wildlife; preparation of pesticide registration guidelines; 
development of standards for the registration and reregistration of 
pesticide products; provision of program policy direction to technical 
and manpower training activities in the pesticides area; development of 
research needs and monitoring requirements for the pesticide program and 
related areas; review of impact statements dealing with pesticides; and 
carrying out of assigned international activities.
    (b) Office of Pollution Prevention and Toxics. The Office of 
Pollution Prevention and Toxics (OPPT), under the management of a 
Director and Deputy Director is responsible to the Assistant 
Administrator for those activities of

[[Page 16]]

the Agency mandated by the Toxic Substances Control Act. The Director is 
responsible for developing and operating Agency programs and policies 
for new and existing chemicals. In each of these areas, the Director is 
responsible for information collection and coordination; data 
development; health, environmental and economic assessment; and 
negotiated or regulatory control actions. The Director provides 
operational guidance to EPA Regional Offices, reviews and evaluates 
toxic substances activities at EPA Headquarters and Regional Offices; 
coordinates TSCA activities with other EPA offices and Federal and State 
agencies, and conducts the export notification required by TSCA and 
provides information to importers. The Director is responsible for 
developing policies and procedures for the coordination and integration 
of Agency and Federal activities concerning toxic substances. The 
Director is also responsible for coordinating communication with the 
industrial community, environmental groups, and other interested parties 
on matters relating to the implementation of TSCA; providing technical 
support to international activities managed by the Office of 
International Activities; and managing the joint planning of toxic 
research and development under the auspices of the Pesticides/Toxic 
Substances Research Committee.
    (c) Office of Compliance Monitoring. The Office of Compliance 
Monitoring, under the supervision of a Director, plans, directs, and 
coordinates the pesticides and toxic substances compliance programs of 
the Agency. More specifically, the Office provides a national pesticides 
and toxic substances compliance overview and program policy direction to 
the Regional Offices and the States, prepares guidance and policy on 
compliance issues, establishes compliance priorities, provides technical 
support for litigation activity, concurs on enforcement actions, 
maintains liaison with the National Enforcement Investigations Center, 
develops annual fiscal budgets for the national programs, and manages 
fiscal and personnel resources for the Headquarters programs. The Office 
directs and manages the Office of Prevention, Pesticides and Toxic 
Substances' laboratory data integrity program which conducts laboratory 
inspections and audits of testing data. The Office issues civil 
administrative complaints and other administrative orders in cases of 
first impression, overriding national significance, or violations by any 
entity located in more than one Region. The office coordinates with the 
Office of General Counsel and the Office of Enforcement and Compliance 
Monitoring in an attorney-client relationship, with those Offices 
providing legal support for informal and formal administrative 
resolutions of violations; for conducting litigation; for interpreting 
statutes, regulations and other legal precedents covering EPA's 
activities; and for advising program managers on the legal implications 
of alternative courses of action. The Office of Compliance Monitoring 
coordinates with the Office of Pesticide Programs in the conduct of 
pesticide enforcement compliance and registration programs under the 
Federal Insecticide, Fungicide, and Rodenticide Act and participates in 
decisions involving the cancellation or suspension of registration. The 
Office establishes policy and operating procedures for pesticide 
compliance activities including sampling programs, export certification, 
monitoring programs to assure compliance with experimental use permits, 
pesticide use restrictions, and recordkeeping requirements, and 
determines when and whether compliance actions are appropriate. The 
Office establishes policy and guidance for the State cooperative 
enforcement agreement program and the applicator training and 
certification program. The Office of Compliance Monitoring also 
coordinates with the Office of Pollution Prevention and Toxics in the 
conduct of regulatory and compliance programs under the Toxic Substances 
Control Act and participates in regulation development for TSCA. The 
Office participates in the control of imminent hazards under TSCA, 
inspects facilities subject to TSCA regulation as a part of 
investigations which are national in scope or which require specialized 
expertise, and samples and analyzes chemicals to determine compliance 
with TSCA. The Office coordinates and

[[Page 17]]

provides guidance to other TSCA compliance activities, including the 
State cooperative enforcement agreement program and the preparation of 
administrative suits.
[50 FR 26721, June 28, 1985, as amended at 57 FR 28087, June 24, 1992]



Sec. 1.45  Office of Research and Development.

    The Office of Research and Development is under the supervision of 
the Assistant Administrator for Research and Development who serves as 
the principal science adviser to the Administrator, and is responsible 
for the development, direction, and conduct of a national research, 
development and demonstration program in: Pollution sources, fate, and 
health and welfare effects; pollution prevention and control, and waste 
management and utilization technology; environmental sciences; and 
monitoring systems. The Office participates in the development of Agency 
policy, standards, and regulations and provides for dissemination of 
scientific and technical knowledge, including analytical methods, 
monitoring techniques, and modeling methodologies. The Office serves as 
coordinator for the Agency's policies and programs concerning 
carcinogenesis and related problems and assures appropriate quality 
control and standardization of analytical measurement and monitoring 
techniques utilized by the Agency. The Office exercises review and 
concurrence responsibilities on an Agencywide basis in all budgeting and 
planning actions involving monitoring which require Heardquarters 
approval.
    (a) Office of Acid Deposition, Environmental Monitoring and Quality 
Assurance. The Office of Acid Deposition, Environmental Monitoring and 
Quality Assurance (OADEMQA), under the supervision of an Office 
Director, is responsible for planning, managing and evaluating a 
comprehensive program for:
    (1) Monitoring the cause and effects of acid deposition;
    (2) Research and development on the causes, effects and corrective 
steps for the acid deposition phenomenon;
    (3) Research with respect to the transport and fate of pollutants 
which are released into the atmosphere;
    (4) Development and demonstration of techniques and methods to 
measure exposure and to relate ambient concentrations to exposure by 
critical receptors;
    (5) Research, development and demonstration of new monitoring 
methods, systems, techniques and equipment for detection, identification 
and characterization of pollutants at the source and in the ambient 
environment and for use as reference or standard monitoring methods;
    (6) Establishment, direction and coordination of Agencywide Quality 
Assurance Program; and
    (7) Development and provision of quality assurance methods, 
techniques and material including validation and standardization of 
analytical methods, sampling techniques, quality control methods, 
standard reference materials, and techniques for data collection, 
evaluation and interpretation. The Office identifies specific research, 
development, demonstration and service needs and priorities; establishes 
program policies and guidelines; develops program plans including 
objectives and estimates of resources required to accomplish objectives; 
administers the approved program and activities; assigns program 
responsibility and resources to the laboratories assigned by the 
Assistant Administrator; directs and supervises assigned laboratories in 
program administration; and conducts reviews of program progress and 
takes action as necessary to assure timeliness, quality and 
responsiveness of outputs.
    (b) Office of Environmental Engineering and Technology 
Demonstration. The Office of Environmental Engineering and Technology 
Demonstration (OEETD) under the supervision of a Director, is 
responsible for planning, managing, and evaluating a comprehensive 
program of research, development, and demonstration of cost effective 
methods and technologies to:
    (1) Control Environmental impacts associated with the extraction, 
processing, conversion, and transportation of energy, minerals, and 
other resources, and with industrial processing and manufacturing 
facilities;

[[Page 18]]

    (2) Control environmental impacts of public sector activities 
including publicly-owned waste water and solid waste facilities;
    (3) Control and manage hazardous waste generation, storage, 
treatment, and disposal;
    (4) Provide innovative technologies for response actions under 
Superfund and technologies for control of emergency spills of oils and 
hazardous waste;
    (5) Improve drinking water supply and system operations, including 
improved understanding of water supply technology and water supply 
criteria;
    (6) Characterize, reduce, and mitigate indoor air pollutants 
including radon; and
    (7) Characterize, reduce, and mitigate acid rain precursors from 
stationary sources. Development of engineering data needed by the Agency 
in reviewing premanufacturing notices relative to assessing potential 
release and exposure to chemicals, treatability by waste treatment 
systems, containment and control of genetically engineered organisms, 
and development of alternatives to mitigate the likelihood of release 
and exposure to existing chemicals. In carrying out these 
responsibilities, the Office develops program plans and manages the 
resources assigned to it; implements the approved programs and 
activities; assigns objectives and resources to the OEETD laboratories; 
conducts appropriate reviews to assure the quality, timeliness, and 
responsiveness of outputs; and conducts analyses of the relative 
environmental and socioeconomic impacts of engineering methods and 
control technologies and strategies. The Office of Environmental 
Engineering and Technology Demonstration is the focal point within the 
Office of Research and Development for providing liaison with the rest 
of the Agency and with the Department of Energy on issues associated 
with energy development. The Office is also the focal point within the 
Office of Research and Development for liaison with the rest of the 
Agency on issues related to engineering reseach and development and the 
control of pollution discharges.
    (c) Office of Environmental Processes and Effects Research. The 
Office of Environmental Processes and Effects Research, under the 
supervision of the Director, is responsible for planning, managing, and 
evaluating a comprehensive research program to develop the scientific 
and technological methods and data necessary to understand ecological 
processes, and predict broad ecosystems impacts, and to manage the 
entry, movement, and fate of pollutants upon nonhuman organisms and 
ecosystems. The comprehensive program includes:
    (1) The development of organism and ecosystem level effect data 
needed for the establishment of standards, criteria or guidelines for 
the protection of nonhuman components of the environment and ecosystems 
integrity and the prevention of harmful human exposure to pollutants;
    (2) The development of methods to determine and predict the fate, 
transport, and environmental levels which may result in human exposure 
and exposure of nonhuman components of the environment, resulting from 
the discharge of pollutants, singly or in combination into the 
environment, including development of source criteria for protection of 
environmental quality;
    (3) The development and demonstration of methods for the control or 
management of adverse environmental impacts from agriculture and other 
rural nonprofit sources;
    (4) The development and demonstration of integrated pest management 
strategies for the management of agriculture and urban pests which 
utilize alternative biological, cultural and chemical controls;
    (5) The development of a laboratory and fieldscale screening tests 
to provide data that can be used to predict the behavior of pollutants 
in terms of movement in the environmental, accumulation in the food 
chain, effects on organisms, and broad escosystem impacts;
    (6) Coordination of interagency research activities associated with 
the health and environmental impacts of energy production and use; and
    (7) development and demonstration of methods for restoring degraded 
ecosystem by means other than source control.

[[Page 19]]

    (d) Office of Health Research. The Office of Health Research under 
the supervision of a Director, is responsible for the management of 
planning, implementing, and evaluating a comprehensive, integrated human 
health research program which documents acute and chronic adverse 
effects to man from environmental exposure to pollutants and determines 
those exposures which have a potentially adverse effect on humans. This 
documentation is utilized by ORD for criteria development and scientific 
assessments in support of the Agency's regulating and standard-setting 
activities. To attain this objective, the program develops tests systems 
and associated methods and protocols, such as predictive models to 
determine similarities and differences among test organisms and man; 
develops methodology and conducts laboratory and field research studies; 
and develops interagency programs which effectively use pollutants. The 
Office of Health Research is the Agency's focal point within the Office 
of Research and Development for providing liaison relative to human 
health effects and related human exposure issues (excluding issues 
related to the planning and implementation of research on the human 
health effects of energy pollutants that is conducted under the 
Interagency Energy/Environment Program). It responds with recognized 
authority to changing requirements of the Regions, program offices and 
other offices for priority technical assistance. In close coordination 
with Agency research and advisory committees, other agencies and 
offices, and interaction with academic and other independent scientific 
bodies, the Office develops health science policy for the Agency. 
Through these relationships and the scientific capabilities of its 
laboratories and Headquarters staffs, the Office provides a focal point 
for matters pertaining to the effects of human exposure to environmental 
pollutants.
    (e) Office of Health and Environmental Assessment (OHEA). The Office 
of Health and Environmental Assessment, under the supervision of a 
Director, is the principal adviser on matters relating to the 
development of health criteria, health affects assessment and risk 
estimation, to the Assistant Administrator for Research and Development. 
The Director's Office: Develops recommendations on OHEA programs 
including the identification and development of alternative program 
goals, priorities, objectives and work plans; develops recommendations 
on overall office policies and means for their implementation; performs 
the critical path planning necessary to assure a timely production of 
OHEA information in response to program office needs; serves as an 
Agency health assessment advocate for issue resolution and regulatory 
review in the Agency Steering Committee, Science Advisory Board, and in 
cooperation with other Federal agencies and the scientific and technical 
community; and provides administrative support services to the 
components of OHEA. The Director's Office provides Headquarters 
coordination for the Environmental Criteria and Assessment Offices.
    (f) Office of Exploratory Research. The Office of Exploratory 
Research (OER), under the supervision of a Director, is responsible for 
overall planning, administering, managing, and evaluating EPA's 
anticipatory and extramural grant research in response to Agency 
priorities, as articulated by Agency planning mechanisms and ORD's 
Research Committees. The Director advises the Assistance Administrator 
on the direction, scientific quality and effectiveness of ORD's long-
term scientific review and evaluation; and research funding assistance 
efforts. The responsibilities of this office include: Administering 
ORD's scientific review of extramural requests for research funding 
assistance; developing research proposal solicitations; managing grant 
projects; and ensuring project quality and optimum dissemination of 
results. The OER is responsible for analyzing EPA's long-range 
environmental research concerns; forecasting emerging and potential 
environmental problems and manpower needs; identifying Federal workforce 
training programs to be used by State and local governments; assuring 
the participation of minority institutions in environmental research and 
development activities; and conducting special studies in response to 
high priority national environmental

[[Page 20]]

needs and problems. This office serves as an ORD focal point for 
university relations and other Federal research and development agencies 
related to EPA's extramural research program.

[50 FR 26721, June 28, 1985, as amended at 52 FR 30360, Aug. 14, 1987]



Sec. 1.47  Office of Solid Waste and Emergency Response.

    The Office of Solid Waste and Emergency Response (OSWER), under the 
supervision of the Assistant Administrator for Solid Waste and Emergency 
Response, provides Agencywide policy, guidance, and direction for the 
Agency's solid and hazardous wastes and emergency response programs. 
This Office has primary responsibility for implementing the Resource 
Conservation and Recovery Act (RCRA) and the Comprehensive Environmental 
Response, Compensation and Liability Act (CERCLA--``Superfund''). In 
addition to managing those programs, the Assistant Administrator serves 
as principal adviser to the Administrator in matters pertaining to them. 
The Assistant Administrator's responsibilities include: Program policy 
development and evaluation; development of appropriate hazardous waste 
standards and regulations; ensuring compliance with applicable laws and 
regulations; program policy guidance and overview, technical support, 
and evaluation of Regional solid and hazardous wastes and emergency 
response activities; development of programs for technical, 
programmatic, and compliance assistance to States and local governments; 
development of guidelines and standards for the land disposal of 
hazardous wastes; analyses of the recovery of useful energy from solid 
waste; development and implementation of a program to respond to 
uncontrolled hazardous waste sites and spills (including oil spills); 
long-term strategic planning and special studies; economic and long-term 
environmental analyses; economic impact assessment of RCRA and CERCLA 
regulations; analyses of alternative technologies and trends; and cost-
benefit analyses and development of OSWER environmental criteria.
    (a) Office of Waste Programs Enforcement. The Office of Waste 
Programs Enforcement (OWPE), under the supervision of a Director, 
manages a national program of technical compliance and enforcement under 
CERCLA and RCRA. The Office provides guidance and support for the 
implementation of the CERCLA and RCRA compliance and enforcement 
programs. This includes the development of program strategies, long-term 
and yearly goals, and the formulation of budgets and plans to support 
implementation of strategies and goals. The Office provides program 
guidance through the development and issuance of policies, guidance and 
other documents and through training and technical assistance. The 
Office oversees and supports Regions and States in the implementation of 
the CERCLA and RCRA enforcement programs. The Office may assume 
responsibility for direct management of a limited number of CERCLA and 
RCRA enforcement actions which are multi-regional in nature or are cases 
of national significance. The Office serves as the national technical 
expert for all matters relating to CERCLA and RCRA compliance and 
enforcement. It represents the interest of the CERCLA and RCRA 
enforcement programs to other offices of the Agency. In coordination 
with the Office of External Affairs (OEA) and IO-OSWER, represents the 
program to external organizations, including the Office of Management 
and Budget (OMB), Congress, U.S. Department of Justice and other Federal 
agencies, the media, public interest and industry groups, State and 
local governments and their associations and the public.
    (b) Office of Solid Waste. The Office of Solid Waste, under the 
supervision of a Director, is responsible for the solid and hazardous 
waste activities of the Agency. In particular, this Office is 
responsible for implementing the Resource Conservation and Recovery Act. 
The Office provides program policy direction to and evaluation of such 
activities throughout the Agency and establishes solid and hazardous 
wastes research requirements for EPA.
    (c) Office of Emergency and Remedial Response. The Office of 
Emergency and Remedial Response, under the supervision of a Director, is 
responsible for the emergency and remedial response functions of the 
Agency (i.e.,

[[Page 21]]

CERCLA). The Office is specifically responsible for:
    (1) Developing national strategy, programs, technical policies, 
regulations, and guidelines for the control of abandoned hazardous waste 
sites, and response to and prevention of oil and hazardous substance 
spills;
    (2) Providing direction, guidance, and support to the Environmental 
Response Teams and overseeing their activities;
    (3) Providing direction, guidance, and support to the Agency's non-
enforcement emergency and remedial response programs, including 
emergency and remedial responses to hazardous waste sites;
    (4) Developing national accomplishment plans and resources;
    (5) Scheduling the guidelines for program plans;
    (6) Assisting in the training of personnel;
    (7) Monitoring and evaluating the performance, progress, and fiscal 
status of the Regions in implementing emergency and remedial response 
program plans;
    (8) Maintaining liaison with concerned public and private national 
organizations for emergency response;
    (9) Supporting State emergency response programs; and
    (10) Coordinating Office activities with other EPA programs.
    (d) Office of Underground Storage Tanks. The Office of Underground 
Storage Tanks, under the supervision of a Director, is responsible for 
defining, planning, and implementing regulation of underground storage 
tanks containing petroleum, petroleum products, and chemical products. 
In particular, this Office is responsible for overseeing implementation 
of Subtitle I of the Resource Conservation and Recovery Act (RCRA), as 
amended. The Office develops and promulgates regulations and policies 
including notification, tank design and installation, corrective action, 
and State program approvals. It also plans for an oversees utilization 
of the Underground Storage Tank Trust Fund established by the Superfund 
Amendments and Reauthorization Act of 1986 (SARA).

[50 FR 26721, June 28, 1985, as amended at 52 FR 30360, Aug. 14, 1987]



Sec. 1.49  Office of Water.

    The Office of Water, under the supervision of the Assistant 
Administrator for Water who serves as the principal adviser to the 
Administrator in matters pertaining to water programs, is responsible 
for management of EPA's water programs. Functions of the Office include 
program policy development and evaluation; environmental and pollution 
source standards development; program policy guidance and overview; 
technical support; and evaluation of Regional water activities; the 
conduct of compliance and permitting activities as they relate to 
drinking water and water programs; development of programs for technical 
assistance and technology transfer; development of selected 
demonstration programs; economic and long-term environmental analysis; 
and marine and estuarine protection.
    (a) Office of Water Enforcement and Permits. The Office of Water 
Enforcement and Permits, under the supervision of a Director, develops 
policies, strategies, procedures and guidance for EPA and State 
compliance monitoring, evaluation, and enforcement programs for the 
Clean Water Act and the Marine Protection Research and Sanctuaries Act. 
The Office also provides national program direction to the National 
Pollutant Discharge Elimination System permit program. The office has 
overview responsibilities and provides technical assistance to the 
regional activities in both enforcement and permitting programs.
    (b) Office of Water Regulations and Standards. The Office of Water 
Regulations and Standards, under the supervision of a Director, is 
responsible for the Agency's water regulations and standards functions. 
The Office is responsible for developing an overall program strategy for 
the achievement of water pollution abatement in cooperation with other 
appropriate program offices. The Office assures the coordination of all 
national water-related activities within this water program strategy, 
and monitors national progress toward the achievement of water quality 
goals and is responsible for the development of effluent guidelines and 
water quality standards, and other pollutant standards, regulations,

[[Page 22]]

and guidelines within the program responsibilities of the Office. It 
exercises overall responsibility for the development of effective State 
and Regional water quality regulatory control programs. The Office is 
responsible for the development and maintenance of a centralized water 
programs data system including compatible water quality, discharger, and 
program data files utilizing, but not displacing, files developed and 
maintained by other program offices. It is responsible for developing 
national accomplishment plans and resource and schedule guidelines for 
monitoring and evaluating the performance, progress, and fiscal status 
of the organization in implementing program plans. The Office represents 
EPA in activities with other Federal agencies concerned with water 
quality regulations and standards.
    (c) Office of Municipal Pollution Control. The Office of Municipal 
Pollution Control, under the supervision of a Director, is responsible 
for the Agency's water program operations functions. The Office is 
responsible for developing national strategies, program and policy 
recommendations, regulations and guidelines for municipal water 
pollution control; for providing technical direction and support to 
Regional Offices and other organizations; and for evaluating Regional 
and State programs with respect to municipal point source abatement and 
control, and manpower development for water-related activities. The 
Office assures that priority Headquarters and regional activities are 
planned and carried out in a coordinated and integrated fashion, 
including developing and implementing data submission systems.
    (d) Office of Drinking Water. The Office of Drinking Water, under 
the supervision of a Director, is responsible for water supply 
activities of the Agency, including the development of an implementation 
strategy which provides the national policy direction and coordination 
for the program. This Office develops regulations and guidelines to 
protect drinking water quality and existing and future underground 
sources of drinking water, develops program policy and guidance for 
enforcement and compliance activities, and recommends policy for water 
supply protection activities. The office provides guidance and technical 
information to State agencies, local utilities, and Federal facilities 
through the Regional Offices on program planning and phasing; evaluates 
the national level of compliance with the regulations; plans and 
develops policy guidance for response to national, Regional, and local 
emergencies; reviews and evaluates, with Regional Offices, technical 
data for the designation of sole-source aquifers; designs a national 
program of public information; provides program policy direction for 
technical assistance and manpower training activities in the water 
supply area; identifies research needs and develops monitoring 
requirements for the national water supply program; develops national 
accomplishments' plans and resource schedule guidelines for monitoring 
and evaluating the program plans, and program performance, and fiscal 
status; develops program plans, and budget and program status reports 
for the water supply program; coordinates water supply activities with 
other Federal agencies as necessary; and serves as liaison with the 
National Drinking Water Advisory Council.
    (e) Office of Ground-Water Protection. The Office of Ground-Water 
Protection, under the supervision of a Director, oversees implementation 
of the Agency's Ground-water Protection Strategy. This Office 
coordinates support of Headquarters and regional activities to develop 
stronger State government organizations and programs which foster 
ground-water protection. The Office directs and coordinates Agency 
analysis and approaches to unaddressed problems of ground-water 
contamination; is principally responsible for establishing and 
implementing a framework for decision-making at EPA on ground-water 
protection issues; and serves as the focus of internal EPA policy 
coordination for ground-water.
    (f) Office of Marine and Estuarine Protection. The Office of Marine 
and Estuarine Protection, under the supervision of a Director, is 
responsible for the development of policies and strategies and 
implementation of a program to protect the marine/estuarine environment, 
including ocean dumping. The

[[Page 23]]

Office provides national direction for the Chesapeake Bay and other 
estuarine programs, and policy oversight of the Great Lakes Program.
    (g) Office of Wetlands Protection. The Office of Wetlands 
Protection, under the supervision of a Director, administers the 404/
Wetlands Program and develops policies, procedures, regulations, and 
strategies addressing the maintenance, enhancement, and protection of 
the Nations Wetlands. The Office coordinates Agency issues related to 
wetlands.

[50 FR 26721, June 28, 1985, as amended at 52 FR 30360, Aug. 14, 1987]



                     Subpart C--Field Installations



Sec. 1.61  Regional Offices.

    Regional Administrators are responsible to the Administrator, within 
the boundaries of their Regions, for the execution of the Regional 
Programs of the Agency and such other responsibilities as may be 
assigned. They serve as the Administrator's prinicipal representatives 
in their Regions in contacts and relationships with Federal, State, 
interstate and local agencies, industry, academic institutions, and 
other public and private groups. Regional Administrators are responsible 
for:
    (a) Accomplishing national program objectives within the Regions as 
established by the Administrator, Deputy Administrator, Assistant 
Administrators, Associate Administrators, and Heads of Headquarters 
Staff Offices;
    (b) Developing, proposing, and implementing approved Regional 
programs for comprehensive and integrated environmental protection 
activities;
    (c) Total resource management in their Regions within guidelines 
provided by Headquarters;
    (d) Conducting effective Regional enforcement and compliance 
programs;
    (e) Translating technical program direction and evaluation provided 
by the various Assistant Administrators, Associate Administrators and 
Heads of Headquarters Staff Offices, into effective operating programs 
at the Regional level, and assuring that such programs are executed 
efficiently;
    (f) Exercising approval authority for proposed State standards and 
implementation plans; and
    (g) Providing for overall and specific evaluations of Regional 
programs, both internal Agency and State activities.



PART 2--PUBLIC INFORMATION--Table of Contents




                   Subpart A--Requests for Information

Sec.
2.100  Definitions.
2.101  Policy on disclosure of EPA records.
2.102  [Reserved]
2.103  Partial disclosure of records.
2.104  Requests to which this subpart applies.
2.105  Existing records.
2.106  Where requests for agency records shall be filed.
2.107  Misdirected written requests; oral requests.
2.108  Form of request.
2.109  Requests which do not reasonably describe records sought.
2.110  Responsibilities of Freedom of Information Officers.
2.111  Action by office responsible for responding to request.
2.112  Time allowed for issuance of initial determination.
2.113  Initial denials of requests.
2.114  Appeals from initial denials; manner of making.
2.115  Appeal determinations; by whom made.
2.116  Contents of determination denying appeal.
2.117  Time allowed for issuance of appeal determination.
2.118  Exemption categories.
2.119  Discretionary release of exempt documents.
2.120  Fees; payment; waiver.
2.121  Exclusions.

           Subpart B--Confidentiality of Business Information

2.201  Definitions.
2.202  Applicability of subpart; priority where provisions conflict; 
          records containing more than one kind of information.
2.203  Notice to be included in EPA requests, demands, and forms; method 
          of asserting business confidentiality claim; effect of failure 
          to assert claim at time of submission.
2.204  Initial action by EPA office.
2.205  Final confidentiality determination by EPA legal office.
2.206  Advance confidentiality determinations.
2.207  Class determinations.

[[Page 24]]

2.208  Substantive criteria for use in confidentiality determinations.
2.209  Disclosure in special circumstances.
2.210  Nondisclosure for reasons other than business confidentiality or 
          where disclosure is prohibited by other statute.
2.211  Safeguarding of business information; penalty for wrongful 
          disclosure.
2.212  Establishment of control offices for categories of business 
          information.
2.213  Designation by business of addressee for notices and inquiries.
2.214  Defense of Freedom of Information Act suits; participation by 
          affected business.
2.215  Confidentiality agreements.
2.216--2.300  [Reserved]
2.301  Special rules governing certain information obtained under the 
          Clean Air Act.
2.302  Special rules governing certain information obtained under the 
          Clean Water Act.
2.303  Special rules governing certain information obtained under the 
          Noise Control Act of 1972.
2.304  Special rules governing certain information obtained under the 
          Safe Drinking Water Act.
2.305  Special rules governing certain information obtained under the 
          Solid Waste Disposal Act, as amended.
2.306  Special rules governing certain information obtained under the 
          Toxic Substances Control Act.
2.307  Special rules governing certain information obtained under the 
          Federal Insecticide, Fungicide and Rodenticide Act.
2.308  Special rules governing certain information obtained under the 
          Federal Food, Drug and Cosmetic Act.
2.309  Special rules governing certain information obtained under the 
          Marine Protection, Research and Sanctuaries Act of 1972.
2.310  Special rules governing certain information obtained under the 
          Comprehensive Environmental Response, Compensation, and 
          Liability Act of 1980, as amended.
2.311  Special rules governing certain information obtained under the 
          Motor Vehicle Information and Cost Savings Act.

 Subpart C--Testimony by Employees and Production of Documents in Civil 
        Legal Proceedings Where the United States Is Not a Party

2.401  Scope and purpose.
2.402  Policy on presentation of testimony and production of documents.
2.403  Procedures when voluntary testimony is requested.
2.404  Procedures when an employee is subpoenaed.
2.405  Subpoenas duces tecum.
2.406  Requests for authenticated copies of EPA documents.

    Authority: 5 U.S.C. 301, 552 (as amended), 553; secs. 114, 205, 208, 
301, and 307, Clean Air Act, as amended (42 U.S.C. 7414, 7525, 7542, 
7601, 7607); secs. 308, 501 and 509(a), Clean Water Act, as amended (33 
U.S.C. 1318, 1361, 1369(a)); sec. 13, Noise Control Act of 1972 (42 
U.S.C. 4912); secs. 1445 and 1450, Safe Drinking Water Act (42 U.S.C. 
300j-4, 300j-9); secs. 2002, 3007, and 9005, Solid Waste Disposal Act, 
as amended (42 U.S.C. 6912, 6927, 6995); secs. 8(c), 11, and 14, Toxic 
Substances Control Act (15 U.S.C. 2607(c), 2610, 2613); secs. 10, 12, 
and 25, Federal Insecticide, Fungicide, and Rodenticide Act, as amended 
(7 U.S.C. 136h, 136j, 136w); sec. 408(f), Federal Food, Drug and 
Cosmetic Act, as amended (21 U.S.C. 346(f)); secs. 104(f) and 108, 
Marine Protection Research and Sanctuaries Act of 1972 (33 U.S.C. 
1414(f), 1418); secs. 104 and 115, Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9604 and 
9615); sec. 505, Motor Vehicle Information and Cost Savings Act, as 
amended (15 U.S.C. 2005).

    Source: 41 FR 36902, Sept. 1, 1976, unless otherwise noted.



                   Subpart A--Requests for Information



Sec. 2.100  Definitions.

    For the purposes of this part:
    (a) EPA means the United States Environmental Protection Agency.
    (b) EPA Record or, simply record means any document, writing, 
photograph, sound or magnetic recording, drawing, or other similar thing 
by which information has been preserved, from which the information can 
be retrieved and copied, and over which EPA has possession or control. 
It may include copies of the records of other Federal agencies (see 
Sec. 2.111(d)). The term includes informal writings (such as drafts and 
the like), and also includes information preserved in a form which must 
be translated or deciphered by machine in order to be intelligible to 
humans. The term includes documents and the like which were created or 
acquired by EPA, its predecessors, its officers, and its employees by 
use of Government funds or in the course of transacting official 
business. However, the term does not include materials which are the 
personal records of an EPA officer or employee. Nor does the

[[Page 25]]

term include materials published by non-Federal organizations which are 
readily available to the public, such as books, journals, and 
periodicals available through reference libraries, even if such 
materials are in EPA's possession.
    (c) Request means a request to inspect or obtain a copy of one or 
more records.
    (d) Requestor means any person who has submitted a request to EPA.
    (e) The term commercial use request refers to a request from or on 
behalf of one who seeks information for a use or purpose that furthers 
the commercial, trade or profit interests of the requestor or the person 
on whose behalf the request is made. In determining whether a requestor 
properly belongs in this category, EPA must determine the use to which a 
requestor will put the documents requested. Moreover, where EPA has 
reasonable cause to doubt the use to which a requestor will put the 
records sought, or where that use is not clear from the request itself, 
EPA may seek additional clarification before assigning the request to a 
specific category.
    (f) The term non-commercial scientific institution refers to an 
institution that is not operated on a commercial basis as that term is 
referenced in paragraph (e) of this section, and which is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry.
    (g) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution or professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (h) The term representative of the news media refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large, and publishers of 
periodicals (but only in those instances when they can qualify as 
disseminators of news) who make their products available for purchase or 
subscription by the general public. These examples are not intended to 
be all-inclusive. Moreover, as traditional methods of news delivery 
evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of freelance journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but EPA may also look to the past publication record of 
a requestor in making this determination.
    (i) The term search includes all time spent looking for material 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents. Searching for material must 
be done in the most efficient and least expensive manner so as to 
minimize costs for both the EPA and the requestor. For example, EPA will 
not engage in line-by-line search when merely duplicating an entire 
document would prove the less expensive and quicker method of complying 
with a request. Search will be distinguished, moreover, from review of 
material in order to determine whether the material is exempt from 
disclosure (see paragraph (j) of this section). Searches may be done 
manually or by computer using existing programming.
    (j) The term review refers to the process of examining documents 
located in response to a request that is for a commercial use (see 
paragraph (e) of this section) to determine whether any portion of any 
document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.g., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include time spent resolving legal or policy issues regarding 
the application of exemptions. (Documents must be reviewed in responding 
to all requests; however, review time may only be

[[Page 26]]

charged to Commercial Use Requesters.)
    (k) The term duplication refers to the process of making a copy of a 
document necessary to respond to an FOIA request. Such copies can take 
the form of paper copy, microform, audio-visual materials, or machine 
readable documentation (e.g., magnetic tape or disk), among others. The 
copy provided must be in a form that is reasonably usable by requesters.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51658, Dec. 18, 1985; 
53 FR 216, Jan. 5, 1988]



Sec. 2.101  Policy on disclosure of EPA records.

    (a) EPA will make the fullest possible disclosure of records to the 
public, consistent with the rights of individuals to privacy, the rights 
of persons in business information entitled to confidential treatment, 
and the need for EPA to promote frank internal policy deliberations and 
to pursue its official activities without undue disruption.
    (b) All EPA records shall be available to the public unless they are 
exempt from the disclosure requirements of 5 U.S.C 552.
    (c) All nonexempt EPA records shall be available to the public upon 
request regardless of whether any justification or need for such records 
has been shown by the requestor.
    (d) When documents responsive to a request are maintained for 
distribution by agencies operating statutory-based fee schedule 
programs, such as, but not limited to, the Government Printing Office or 
the National Technical Information Service, EPA will inform the 
requester of the steps necessary to obtain records from the sources.

[41 FR 36902, Sept. 1, 1976, as amended at 53 FR 216, Jan. 5, 1988]
Sec. 2.102  [Reserved]



Sec. 2.103  Partial disclosure of records.

    If a requested record contains both exempt and nonexempt material, 
the nonexempt material shall be disclosed, after the exempt material has 
been deleted in accordance with Sec. 2.119.



Sec. 2.104  Requests to which this subpart applies.

    (a) This subpart applies to any written request (other than a 
request made by another Federal agency) received by any EPA office, 
whether or not the request cites the Freedom of Information Act, 5 
U.S.C. 552. See Sec. Sec. 2.107(a) and 2.112(b) regarding the treatment 
of requests which are directed by the requestor to offices other than 
those listed in Sec. 2.106.
    (b) Any written request to EPA for existing records prepared by EPA 
for routine public distribution, e.g., pamphlets, copies of speeches, 
press releases, and educational materials, shall be honored. No 
individual determination under Sec. 2.111 is necessary in such cases, 
since preparation of the records for routine public distribution itself 
constitutes a determination that the records are available to the 
public.



Sec. 2.105  Existing records.

    (a) The Freedom of Information Act, 5 U.S.C. 552, does not require 
the creation of new records in response to a request, nor does it 
require EPA to place a requestor's name on a distribution list for 
automatic receipt of certain kinds of records as they come into 
existence. The Act establishes requirements for disclosure of existing 
records.
    (b) All existing EPA records are subject to routine destruction 
according to standard record retention schedules.



Sec. 2.106  Where requests for agency records shall be filed.

    (a) A request for records may be filed with the EPA Freedom of 
Information Officer, A-101, 401 M Street, SW., Washington, DC 20460.
    (b) Should the requestor have reason to believe that the records 
sought may be located in an EPA regional office, he may transmit his 
request to the appropriate regional Freedom of Information Office 
indicated below:

    (1) Region I (Massachusetts, Connecticut, Maine, New Hampshire, 
Rhode Island, Vermont):

U.S. Environmental Protection Agency, Freedom of Information Officer, 
Room 2303, John F. Kennedy Federal Building, Boston, MA 02203.


[[Page 27]]


    (2) Region II (New Jersey, New York, Puerto Rico, Virgin Islands):

U.S. Environmental Protection Agency, Freedom of Information Officer, 
Room 1005, 26 Federal Plaza, New York, NY 10007.

    (3) Region III (Delaware, Maryland, Pennsylvania, Virginia, West 
Virginia, District of Columbia):

U.S. Environmental Protection Agency, Freedom of Information Officer, 
841 Chestnut Street, Philadelphia, PA 19107.

    (4) Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi, 
North Carolina, South Carolina, Tennessee):

U.S. Environmental Protection Agency, Freedom of Information Officer, 
345 Courtland Street, NE., Atlanta, GA 30365.

    (5) Region V (Illinois, Indiana, Michigan, Minnesota, Ohio, 
Wisconsin);

U.S. Environmental Protection Agency, Freedom of Information Officer, 
230 Dearborn Street, Chicago, IL 60604.

    (6) Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas):

U.S. Environmental Protection Agency, Freedom of Information Officer 
(6M-MC), 1201 Elm Street, Dallas, TX 75270.

    (7) Region VII (Iowa, Kansas, Missouri, Nebraska):

U.S. Environmental Protection Agency, Freedom of Information Officer, 
726 Minnesota Avenue, Kansas City, KS 66101.

    (8) Region VIII (Colorado, Montana, North Dakota, South Dakota, 
Utah, Wyoming):

U.S. Environmental Protection Agency, Freedom of Information Officer, 
One Denver Place, 999 18th Street, Suite 1300, Denver, CO 80202-2413.

    (9) Region IX (Arizona, California, Hawaii, Nevada, American Samoa, 
Guam, Trust Territory of Pacific Islands):

U.S. Environmental Protection Agency, Freedom of Information Officer, 
215 Fremont Street, San Francisco, CA 94105.

    (10) Region X (Alaska, Idaho, Oregon, Washington):

U.S. Environmental Protection Agency, Freedom of Information Officer, 
1200 Sixth Avenue, Seattle, WA 98101.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51659, Dec. 18, 1985]



Sec. 2.107  Misdirected written requests; oral requests.

    (a) EPA cannot assure that a timely or satisfactory response under 
this subpart will be given to written requests that are addressed to EPA 
offices, officers, or employees other than the Freedom of Information 
Officers listed in Sec. 2.106. Any EPA officer or employee who receives 
a written request for inspection or disclosure of EPA records shall 
promptly forward a copy of the request to the appropriate Freedom of 
Information Officer, by the fastest practicable means, and shall, if 
appropriate, commence action under Sec. 2.111. For purposes of 
Sec. 2.112, the time allowed with respect to initial determinations 
shall be computed from the day on which the appropriate Freedom of 
Information Officer receives the request.
    (b) While EPA officers and employees will attempt in good faith to 
comply with requests for inspection or disclosure of EPA records made 
orally, by telephone or otherwise, such oral requests are not required 
to be processed in accordance with this subpart.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51659, Dec. 18, 1985]



Sec. 2.108  Form of request.

    A request shall be made in writing, shall reasonably describe the 
records sought in a way that will permit their identification and 
location, and should be addressed to one of the addresses set forth in 
Sec. 2.106, but otherwise need not be in any particular form.



Sec. 2.109  Requests which do not reasonably describe records sought.

    (a) If the description of the records sought in the request is not 
sufficient to allow EPA to identify and locate the requested records, 
the EPA office taking action under Sec. 2.111 will notify the requestor 
(by telephone when practicable) that the request cannot be further 
processed until additional information is furnished.
    (b) EPA will make every reasonable effort to assist in the 
identification and description of records sought and to assist the 
requestor in formulating his request. If a request is described in 
general terms (e.g., all records having

[[Page 28]]

to do with a certain area), the EPA office taking action under 
Sec. 2.111 may communicate with the requestor (by telephone when 
practicable) with a view toward reducing the administrative burden of 
processing a broad request and minimizing the fees payable by the 
requestor. Such attempts will not be used as a means to discourage 
requests, but rather as a means to help identify with more specificity 
the records actually sought.



Sec. 2.110  Responsibilities of Freedom of Information Officers.

    (a) Upon receipt of a written request, the Freedom of information 
Officer (whether at EPA Headquarters or at an EPA region) shall mark the 
request with the date of receipt, and shall attach to the request a 
control slip indicating the date of receipt, the date by which response 
is due, a unique Request Identification Number, and other pertinent 
administrative information. The request and control slip shall then be 
forwarded immediately to the EPA office believed to be responsible for 
maintaining the records requested. (If the records requested are 
believed to be located at two or more EPA offices, each such office 
shall be furnished a copy of the request and control slip, with 
instructions concerning which office shall serve as the lead office for 
coordinating the response.) The Freedom of Information Officer shall 
retain a file copy of the request and control slip, and shall monitor 
the handling of the request to ensure a timely response.
    (b) The Freedom of Information Officer shall maintain a file 
concerning each request received, which shall contain a copy of the 
request, initial and appeal determinations, and other pertinent 
correspondence and records.
    (c) The Freedom of Information officer shall collect and maintain 
the information necessary to compile the reports required by 5 U.S.C. 
552(d).



Sec. 2.111  Action by office responsible for responding to request.

    (a) Whenever an EPA office becomes aware that it is responsible for 
responding to a request, the office shall:
    (1) Take action under Sec. 2.109, if required, to obtain a better 
description of the records requested;
    (2) Locate the records as promptly as possible, or determine that 
the records are not known to exist, or that they are located at another 
EPA office, or that they are located at another Federal agency and not 
possessed by EPA;
    (3) When appropriate, take action under Sec. 2.120(c) to obtain 
payment or assurance of payment;
    (4) If any located records contain business information, as defined 
in Sec. 2.201(c), comply with subpart B of this part;
    (5) Determine which of the requested records legally must be 
withheld, and why (see Sec. 2.119(b));
    (6) Of the requested records which are exempt from mandatory 
disclosure but which legally may be disclosed (see Sec. 2.119(a)), 
determine which records will be withheld, and why;
    (7) Issue all initial determination within the allowed period (see 
Sec. 2.112), specifying (individually or by category) which records will 
be disclosed and which will be withheld, and signed by a person 
authorized to issue the determination under Sec. 2.113(b). Denials of 
requests shall comply with Sec. 2.113; and
    (8) Furnish the appropriate Freedom of Information Officer a copy of 
the determination. If the determination denied a request for one or more 
existing, located records, the responding office shall also furnish the 
Freedom of Information officer the name, address, and telephone number 
of the EPA employee(s) having custody of the records, and shall maintain 
the records in a manner permitting their prompt forwarding to the 
General Counsel upon request if an appeal from the initial denial is 
filed. See also Sec. 2.204(f).
    (b) If it appears that some or all of the requested records are not 
in the possession of the EPA office which has been assigned 
responsibility for responding to the request but may be in the 
possession of some other EPA office, the Freedom of Information officer 
who is monitoring the request shall be so informed immediately.
    (c) In determining which records are responsive to a request, the 
EPA office responding shall ordinarily include

[[Page 29]]

those records within the Agency's possession as of the date of the 
Agency's receipt of the request.
    (d) When a request for EPA records encompasses records of another 
Federal agency, the EPA office shall either: (1) Respond to the request 
after consulting with the originating agency when appropriate or; (2) 
promptly transfer responsibility for responding to the request to the 
originating agency provided that the other agency is subject to the 
FOIA. Whenever the EPA office refers a request to another agency, it 
shall notify the requestor of the referral.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51659, Dec. 18, 1985]



Sec. 2.112  Time allowed for issuance of initial determination.

    (a) Except as otherwise provided in this section, not later than the 
tenth working day after the date of receipt by a Freedom of Information 
Office of a request for records, the EPA office responsible for 
responding to the request shall issue a written determination to the 
requestor stating which of the requested records will, and which will 
not, be released and the reason for any denial of a request. If the 
records are not known to exist or are not in EPA's possession, the EPA 
office shall so inform the requestor. To the extent requested records 
which are in EPA's possession are published by the Federal government, 
the response may inform the requestor that the records are available for 
inspection and where copies can be obtained.
    (b) The period of 10 working days shall be measured from the date 
the request is first received and logged in by the Headquarters or 
regional Freedom of Information Office.
    (c) There shall be excluded from the period of 10 working days (or 
any extension thereof) any time which elapses between the date that a 
requestor is notified by EPA under Sec. 2.109 that his request does not 
reasonably identify the records sought, and the date that the requestor 
furnishes a reasonable identification.
    (d) There shall be excluded from the period of 10 working days (or 
any extension thereof) any time which elapses between the date that a 
requestor is notified by EPA under Sec. 2.120 that prepayment or 
assurance of payment of fees is required, and the date that the 
requestor pays (or makes suitable arrangements to pay) such charges.
    (e) The EPA office taking action under Sec. 2.111, after notifying 
the appropriate Freedom of Information Office, may extend the basic 10-
day period established under subsection (a) of this section by a period 
not to exceed 10 additional working days, by furnishing written notice 
to the requestor within the basic 10-day period stating the reasons for 
such extension and the date by which the office expects to be able to 
issue a determination. The period may be so extended only when 
absolutely necessary, only for the period required, and only when one or 
more of the following unusual circumstances require the extension:
    (1) There is a need to search for and collect the requested records 
from field facilities or other establishments that are separate from the 
office processing the request:
    (2) There is a need to search for, collect, and appropriately 
examine a voluminous amount of separate and distinct records which are 
demanded in a single request; or
    (3) There is a need for consultation, which shall be conducted with 
all practicable speed, with another agency having a substantial interest 
in the determination of the request or among two or more components of 
EPA.
    (f) Failure of EPA to issue a determination within the 10-day period 
or any authorized extension shall constitute final agency action which 
authorizes the requestor to commence an action in an appropriate Federal 
district court to obtain the records.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51659, Dec. 18, 1985]



Sec. 2.113  Initial denials of requests.

    (a) An initial denial of a request may be issued only for the 
following reasons:
    (1) A statutory provision, provision of this part, or court order 
requires that the information not be disclosed;
    (2) The record is exempt from mandatory disclosure under 5 U.S.C. 
552(b) and EPA has decided that the public

[[Page 30]]

interest would not be served by disclosure; or
    (3) Section 2.204(d)(1) requires initial denial because a third 
person must be consulted in connection with a business confidentiality 
claim.
    (b) The Deputy Administrator, Assistant Administrators, Regional 
Administrators, the General Counsel, the Inspector General, Associate 
Administrators, and heads of headquarters staff offices are delegated 
the authority to issue initial determinations This authority may be 
redelegated; Provided, That the authority to issue initial denials of 
requests for existing, located records (other than denials based solely 
on Sec. 2.204(d)(1)) may be redelegated only to persons occupying 
positions not lower than division director or equivalent.
    (c) [Reserved]
    (d)(1) Each initial determination to deny a request shall be 
written, signed, and dated, and, except as provided in paragraph (d)(2), 
shall contain a reference to the Request Identification Number, shall 
identify the records that are being withheld (individually, or, if the 
denial covers a large number of similar records, by described category), 
and shall state the basis for denial for each record or category of 
records being withheld.
    (2) No initial determination shall reveal the existence or 
nonexistence of records if identifying the mere fact of the existence or 
nonexistence of those records would reveal confidential business 
information, confidential personal information or classified national 
security information. Instead of identifying the existence or 
nonexistence of the records, the initial determination shall state that 
the request is denied because either the records do not exist or they 
are exempt from mandatory disclosure under the applicable provision of 5 
U.S.C. 552(b). No such determination shall be made without the 
concurrence of the General Counsel or his designee. The General Counsel 
has designated the Contracts and Information Law Branch to act on these 
requests for concurrence. See Sec. 2.121 for guidance on initial 
determinations denying, in limited circumstances, the existence of 
certain law enforcement records or information.
    (e) If the decision to deny a request is made by an authorized EPA 
employee other than the person signing the determination letter, that 
other person's identity and position shall be stated in the 
determination letter.
    (f) Each initial determination which denies, in whole or in part, a 
request for one or more existing, located EPA records (including 
determinations described in Sec. 2.113(d)(2) of this section) shall 
state that the requester may appeal the initial denial by sending a 
written appeal to the address shown in Sec. 2.106(a) within 30 days 
after receipt of the determination. An initial determination which only 
denies the existence of records, however, will not include a notice of 
appeal rights.
    (g) A determination shall be deemed issued on the date the 
determination letter is placed in EPA mailing channels for first class 
mailing to the requestor, delivered to the U.S. Postal Service for 
mailing, or personally delivered to the requestor, whichever date first 
occurs.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51659, Dec. 18, 1985; 
53 FR 216, Jan. 5, 1988]



Sec. 2.114  Appeals from initial denials; manner of making.

    (a) Any person whose request for one or more existing, located EPA 
records has been denied in whole or in part by an initial determination 
may appeal that denial by addressing a written appeal to the address 
shown in Sec. 2.106(a).
    (b) An appeal should be mailed no later than 30 calendar days after 
the date the requestor received the initial determination on the 
request. An untimely appeal may be treated either as a timely appeal or 
as a new request, at the option of the Freedom of Information Officer.
    (c) The appeal letter shall contain a reference to the Request 
Identification Number (RIN), the date of the initial determination, and 
the name and address of the person who issued the initial denial. The 
appeal letter shall also indicate which of the records to which access 
was denied are the subjects of the appeal.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51659, Dec. 18, 1985]

[[Page 31]]



Sec. 2.115  Appeal determinations; by whom made.

    (a) The General Counsel shall make one of the following legal 
determinations in connection with every appeal from the initial denial 
of a request for an existing, located record:
    (1) The record must be disclosed;
    (2) The record must not be disclosed, because a statute or a 
provision of this part so requires; or
    (3) The record is exempt from mandatory disclosure but legally may 
be disclosed as a matter of Agency discretion.
    (b) Whenever the General Counsel has determined under paragraph 
(a)(3) of this section that a record is exempt from mandatory disclosure 
but legally may be disclosed, and the record has not been disclosed by 
EPA under 5 U.S.C. 552, the matter shall be referred to the Assistant 
Administrator for External Affairs. If the Assistant Administant 
Administrator determines that the public interest would not be served by 
disclosure, a determination denying the appeal shall be issued by the 
General Counsel. If the Assistant Administrator determines that the 
public interest would be served by disclosure, the record shall be 
disclosed unless the Administrator (upon a review of the matter 
requested by the appropriate Assistant Administrator, Associate 
Administrator, Regional Administrator, the General Counsel, or the head 
of a headquarters staff office) determines that the public interest 
would not be served by disclosure, in which case the General Counsel 
shall issue a determination denying the appeal. This review by the 
Assistant Administrator for External Affairs shall not apply to appeals 
from initial determinations by the Office of Inspector General to deny 
requests.
    (c) The General Counsel may delegate his authority under paragraph 
(a) of this section to a Regional Counsel, or to any other attorney 
employed on a full-time basis by EPA, in connection with any category of 
appeals or any individual appeal.
    (d) The Assistant Administrator for External Affairs may delegate 
the authority under paragraph (b) of this section to the Deputy 
Assistant Administrator for External Affairs.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51659, Dec. 18, 1985]



Sec. 2.116  Contents of determination denying appeal.

    (a) Except as provided in paragraph (b) of this section, each 
determination denying an appeal from an initial denial shall be in 
writing, shall state which of the exemptions in 5 U.S.C. 552(b) apply to 
each requested existing record, and shall state the reason(s) for denial 
of the appeal. A denial determination shall also state the name and 
position of each EPA officer or employee who directed that the appeal be 
denied. Such a determination shall further state that the person whose 
request was denied may obtain de novo judicial review of the denial by 
complaint filed with the district court of the United States in the 
district in which the complainant resides, or has his principal place of 
business, or in which the Agency records are situated, or in the 
District of Columbia, pursuant to 5 U.S.C. 552(a)(4).
    (b) No determination denying an appeal shall reveal the existence or 
nonexistence of records if identifying the mere fact of the existence or 
nonexistence of those records would reveal confidential business 
information, confidential personal information or classified national 
security information. Instead of identifying the existence or 
nonexistence of the records, the determination shall state that the 
appeal is denied because either the records do not exist or they are 
exempt from mandatory disclosure under the applicable provision of 5 
U.S.C. 552(b).

[53 FR 217, Jan. 5, 1988]



Sec. 2.117  Time allowed for issuance of appeal determination.

    (a) Except as otherwise provided in this section, not later than the 
twentieth working day after the date of receipt by the Freedom of 
Information Officer at EPA Headquarters of an appeal from an initial 
denial of a request for records, the General Counsel shall issue a 
written determination stating which of the requested records (as to

[[Page 32]]

which an appeal was made) shall be disclosed and which shall not be 
disclosed.
    (b) The period of 20 working days shall be measured from the date an 
appeal is first received by the Freedom of Information Officer at EPA 
Headquarters, except as otherwise provided in Sec. 2.205(a).
    (c) The Office of General Counsel, after notifying the Freedom of 
Information Officer at EPA Headquarters, may extend the basic 20-day 
period established under subsection (a) of this section by a period not 
to exceed 10 additional working days, by furnishing written notice to 
the requestor within the basic 20-day period stating the reasons for 
such extension and the date by which the office expects to be able to 
issue a determination. The period may be so extended only when 
absolutely necessary, only for the period required, and only when one or 
more of the following unusual circumstances require the extension:
    (1) There is a need to search for and collect the records from field 
facilities or other establishments that are separate from the office 
processing the appeal;
    (2) There is a need to search for, collect, and appropriately 
examine a voluminous amount of separate and distinct records which are 
demanded in a single request; or
    (3) There is a need for consultation, which shall be conducted with 
all practicable speed, with another agency having a substantial interest 
in the determination of the request or among two or more components of 
EPA.
    (d) No extension of the 20-day period shall be issued under 
subsection (c) of this section which would cause the total of all such 
extensions and of any extensions issued under Sec. 2.112(e) to exceed 10 
working days.



Sec. 2.118  Exemption categories.

    (a) 5 U.S.C. 552(b) establishes nine exclusive categories of matters 
which are exempt from the mandatory disclosure requirements of 5 U.S.C. 
552(a). No request under 5 U.S.C. 552 for an existing, located record in 
EPA's possession shall be denied by any EPA office or employee unless 
the record contains (or its disclosure would reveal) matters that are--
    (1) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy and are in fact properly classified pursuant to such 
Executive Order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than 5 
U.S.C. 552(b)): Provided, That such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential (see Subpart B);
    (5) Interagency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7)(i) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (A) Could reasonably be expected to interfere with enforcement 
proceedings;
    (B) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (C) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (D) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;

[[Page 33]]

    (E) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (F) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (ii) [Reserved]
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of finanical institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (b) The fact that the applicability of an exemption permits the 
withholding of a requested record (or portion thereof) does not 
necessarily mean that the record must or should be withheld. See 
Sec. 2.119.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978; 
53 FR 217, Jan. 5, 1988]



Sec. 2.119  Discretionary release of exempt documents.

    (a) An EPA office may, in its discretion, release requested records 
despite the applicability of one or more of the exemptions listed in 
Sec. 2.118 (a)(2), (a)(5), or (a)(7). Disclosure of such records is 
encouraged if no important purpose would be served by withholding the 
records.
    (b) As a matter of policy, EPA will not release a requested record 
if EPA has determined that one or more of the exemptions listed in 
Sec. 2.118(a)(1), (3), (4), (6), (8), or (9), applies to the record, 
except when ordered to do so by a Federal court or in exceptional 
circumstances under appropriate restrictions with the approval of the 
Office of General Counsel or a Regional Counsel.



Sec. 2.120  Fees; payment; waiver.

    (a) Fee schedule. Requesters shall be charged the full allowable 
direct costs incurred by the Agency in responding to a FOIA request. 
However, if EPA uses a contractor to search for, reproduce or 
disseminate records responsive to a request, the cost to the requester 
shall not exceed the cost of the Agency itself performing the service.
    (1) There are four categories of requests. Fees for each of the 
categories will be charged as follows:
    (i) Commercial use requests. If the request seeks disclosure of 
records for a commercial use, the requester shall be charged for the 
time spent searching for the requested record, reviewing the record to 
determine whether it should be disclosed and for the cost of each page 
of duplication. Commercial use requesters should note that EPA also may 
charge fees to them for time spent searching for and/or reviewing 
records, even if EPA fails to locate the records or if the records 
located are determined to be exempt from disclosure.
    (ii) Requests from an educational or non-commercial scientific 
institution whose purpose is scholarly or scientific research, involving 
a request which is not for a commercial use and seeks disclosure of 
records. In the case of such a request, the requester shall be charged 
only for the duplication cost of the records, except that the first 100 
pages of duplication shall be furnished without charge.
    (iii) Requests from a representative of the news media, involving a 
request which is not for a commercial use and seeks disclosure of 
records. In the case of such a request, the requester shall be charged 
only for the duplication cost of the records, except that the first 100 
pages of duplication shall be furnished without charge.
    (iv) All other requests. If the request seeks disclosure of records 
other than as described in paragraphs (a)(1)(i), (ii), and (iii) of this 
section, the requester shall be charged the full cost of search and 
duplication. However, the first two hours of search time (or its cost 
equivalent) and the first 100 pages of duplication (or their cost 
equivalent) shall be furnished without charge. Requesters in the ``all 
other requests'' category should note that EPA also may charge fees to 
them for time spent searching for records, even if EPA fails to locate 
the records or if the records located are determined to be exempt from 
disclosure.
    (2) The determination of a requester's fee category will be based on 
the following:

[[Page 34]]

    (i) Commercial use requesters: The use to which the requester will 
put the documents requested;
    (ii) Educational and non-commercial scientific institution 
requestors: Identity of the requester and the use to which the requestor 
will put the documents requested;
    (iii) Representatives of the news media requesters: The identity of 
the requester and the use to which the requestor will put the documents 
requested.
    (3) Fees will be charged to requesters, as appropriate, for search, 
duplication and review of requested records in accordance with the 
following schedule:
    (i) Manual search for records.
    (A) EPA Employees: For each \1/2\ hour or portion thereof:
    (1) GS-8 and below: $4.00.
    (2) GS-9 and above: $10.00.
    (B) Contractor employees: The requestor will be charged for actual 
charges up to but not exceeding the rate which would have been charged 
had EPA employees conducted the search.
    (ii) Computer search for records charges will consist of:
    (A) EPA employee operators: For each \1/2\ hour or portion thereof:
    (1) GS-8 and below: $4.00.
    (2) GS-9 and above: $10.00, plus.
    (B) Contractor operators: Requestors will be charged for the actual 
charges up to but not exceeding the rate which would have been charged 
had EPA employees conducted the search (see paragraph (a)(3)(i)(A) of 
this section), plus.
    (C) Actual computer resource usage charges for this search.
    (iii) Review of records. For each \1/2\ hour or portion thereof (EPA 
employees):
    (A) GS-8 and below: $4.00.
    (B) GS-9 and above: $10.00.
    (iv) Duplication or reproduction of records.
    (A) Duplication or reproduction of documents by EPA employees (paper 
copy of paper original): $.15 per page.
    (B) Computer printouts (other than those calculated in a direct-cost 
billing--see paragraph (a)(3)(ii) of this section ``Computer search for 
records'') $.15 per page.
    (C) Other methods of duplication or reproduction, including, but not 
limited to, duplication of photographs, microfilm and magnetic tape, 
will be charged at the actual direct cost to EPA.
    (4) Other charges.
    (i) Other charges incurred in responding to a request including but 
not limited to, special handling or transportation of records, will be 
charged at the actual direct cost to EPA.
    (ii) Certification or authentication of records: $25.00 per 
certification or authentication.
    (5) No charge shall be made--
    (i) For the cost of preparing or reviewing letters of response to a 
request or appeal;
    (ii) For time spent resolving legal or policy issues concerning the 
application of exemptions;
    (iii) For search time and the first 100 pages of duplication for 
requests described in Sec. 2.120(a)(1)(ii) and (iii) of this section;
    (iv) For the first two hours of search time (or its cost equivalent) 
and for the first 100 pages of duplication for requests described in 
Sec. 2.120(a)(1)(iv) of this section;
    (v) If the total fee in connection with a request is less than 
$25.00, or if the costs of collecting the fee would otherwise exceed the 
amount of the fee. However, when EPA reasonably believes that a 
requester or group of requesters is attempting to break a request down 
into a series of requests for the purpose of avoiding the assessment of 
fees, EPA will aggregate such requests to determine the total fee, and 
will charge accordingly;
    (vi) For responding to a request by an individual for one copy of a 
record retrievable by the requesting individual's name or personal 
identifier from a Privacy Act system of records;
    (vii) For furnishing records requested by either House of Congress, 
or by a duly authorized committee or subcommittee of Congress, unless 
the records are requested for the benefit of an individual Member of 
Congress or for a constituent;
    (viii) For furnishing records requested by and for the official use 
of other Federal agencies; or
    (ix) For furnishing records needed by an EPA contractor, 
subcontractor, or

[[Page 35]]

grantee to perform the work required by the EPA contract or grant.
    (b) Method of payment. All fee payments shall be in the form of a 
check or money order payable to the ``U.S. Environmental Protection 
Agency'' and shall be sent (accompanied by a reference to the pertinent 
Request Identification Number(s)) to the appropriate Headquarters or 
Regional Office lock box address:
    (1) EPA--Washington Headquarters, P.O. Box 360277M, Pittsburgh, PA 
15251;
    (2) EPA--Region 1, P.O. Box 360197M, Pittsburgh, PA 15251;
    (3) EPA--Region 2, P.O. Box 360188M, Pittsburgh, PA 15251;
    (4) EPA--Region 3, P.O. Box 360515M, Pittsburgh, PA 15251;
    (5) EPA--Region 4, P.O. Box 100142, Atlanta, GA. 30384;
    (6) EPA--Region 5, P.O. Box 70753, Chicago, IL 60673;
    (7) EPA--Region 6, P.O. Box 360582M, Pittsburgh, PA 15251;
    (8) EPA--Region 7, P.O. Box 360748M, Pittsburgh, PA 15251;
    (9) EPA--Region 8, P.O. Box 360859M, Pittsburgh, PA 15251;
    (10) EPA--Region 9, P.O. Box 360863M, Pittsburgh, PA 15251;
    (11) EPA--Region 10, P.O. Box 360903M, Pittsburgh, PA 15251;

    Under the Debt Collection Act of 1982 (Pub. L. 97-365), payment 
(except for prepayment) shall be due within thirty (30) calendar days 
after the date of billing. If payment is not received at the end of 
thirty calendar days, interest and a late payment handling charge will 
be assessed. In addition, under this Act, a penalty charge will be 
applied on any principal amount not paid within ninety (90) calendar 
days after the due date for payment. By the authority of the Debt 
Collection Act of 1982, delinquent amounts due may be collected through 
administrative offset or referred to private collection agencies. 
Information related to delinquent accounts may also be reported to the 
appropriate credit agencies.
    (c) Assurance of payment. (1) If an EPA office estimates that the 
fees for processing a request (or aggregated requests as described in 
Sec. 2.120(a)(5)(vi) of this section) will exceed $25.00, that office 
need not search for, duplicate or disclose records in response to the 
request(s) until the requester assures payment of the total amount of 
fees estimated to become due under this section. In such cases, the EPA 
office will promptly inform the requester (by telephone it practicable) 
of the need to make assurance of payment.
    (2) An EPA office may not require a requester to make an advance 
payment, i.e. payment before work is commenced or continued on a 
request, unless:
    (i) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days after the date of the billing), or
    (ii) The EPA office estimates or determines that the allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00. Then the EPA office will notify the requester of the likely 
cost and obtain satisfactory assurance of full payment where the 
requester has a history of prompt payment of FOIA fees, or require an 
advance payment of an amount up to the full estimated charges in the 
case of requesters with no history of payment. If such advance payment 
is not received within 30 days after EPA's billing, the request will not 
be processed and the request will be closed. See also Sec. 2.112(d).
    (d) Reduction or waiver of fee. (1) The fee chargeable under this 
section shall be reduced or waived by EPA if the Agency determines that 
disclosure of the information:
    (i) Is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities of 
the government; and
    (ii) Is not primarily in the commercial interest of the requestor.
    (2) Both of these requirements must be satisfied before fees 
properly assessable can be waived or reduced.
    (3) The Agency will employ the following four factors in determining 
whether the first requirement has been met:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government'';
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute to

[[Page 36]]

an understanding of government operations or activities'';
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure: Whether disclosure of 
the requested information will contribute to ``public understanding''; 
and
    (iv) The significance of the contribution to public understanding: 
Whether disclosure is likely to contribute ``significantly'' to public 
understanding of government operations or activities.
    (4) The Agency will employ the following factors in determining 
whether the second requirement has been met:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.''
    (5) In all cases, the burden shall be on the requester to present 
information in support of a request for a waiver of fees. A request for 
reduction or waiver of fees should include:
    (i) A clear statement of the requester's interest in the requested 
documents;
    (ii) The use proposed for the documents and whether the requester 
will derive income or other benefit from such use;
    (iii) A statement of how the public will benefit from such use and 
from the release of the requested documents; and
    (iv) If specialized use of the documents or information is 
contemplated, a statement of the requester's qualifications that are 
relevant to the specialized use.
    (6) A request for reduction or waiver of fees shall be addressed to 
the appropriate Freedom of Information Officer. The requester shall be 
informed in writing of the Agency's decision whether to grant or deny 
the fee waiver or fee reduction request. This decision may be appealed 
by letter addressed to the EPA Freedom of Information Officer. The 
General Counsel shall decide such appeals. The General Counsel may 
redelegate this authority only to the Deputy General Counsel or the 
Associate General Counsel for Grants, Contracts and General Law.
    (e) The Financial Management Office shall maintain a record of all 
fees charged requesters for searching for, reviewing and reproducing 
requested records under this section. If after the end of 60 calendar 
days from the date on which request for payment was made the requester 
has not submitted payment to the appropriate EPA billing address (as 
listed in Sec. 2.120(b)), the Financial Management Division shall place 
the requester's name on a delinquent list which is sent to the EPA 
Freedom of Information Officer. If a requester whose name appears on the 
delinquent list makes a request under this part, the EPA Freedom of 
Information Officer shall inform the requester that EPA will not process 
the request until the requester submits payment of the overdue fee from 
the earlier request. Any request made by an individual who specifies an 
affiliation with or representation of a corporation, association, law 
firm, or other organization shall be deemed to be a request by the 
corporation, association, law firm, or other organization. If an 
organization placed on the delinquent list can show that the person who 
made the request for which payment was overdue did not make the request 
on behalf of the organization the organization will be removed from the 
delinquent list but the name of the individual shall remain on the list. 
A requester shall not be placed on the delinquent list if a request for 
a reduction or for a waiver is pending under paragraph (d) of this 
section.

[53 FR 217, Jan. 5, 1988]



Sec. 2.121  Exclusions.

    (a) Whenever a request is made which involves access to records 
described in Sec. 2.118(a)(7)(i)(A), and
    (1) The investigation or proceeding involves a possible violation of 
criminal law; and
    (2) There is reason to believe that the subject of the investigation 
or proceeding is not aware of its pendency, and disclosure of the 
existence of such

[[Page 37]]

records could reasonably be expected to interfere with enforcement 
proceedings, EPA shall, during only such time as the circumstances 
continue, treat the records as not subject to the requirements of 5 
U.S.C. 552 and this subpart.
    (b) Whenever informant records maintained by the Agency under an 
informant's name or personal identifier are requested by a third party 
according to the informant's name or personal identifier and the 
informant's status as an informant has not been officially confirmed, 
EPA shall treat the records as not subject to the requirements of 5 
U.S.C. 552 and this subpart.
    (c) No determination relying on this section shall be issued without 
the concurrence of the General Counsel or his designee. The General 
Counsel has designated the Contracts and Information Law Branch to act 
on these requests for concurrence.
    (d) An initial determination which only relies on this section will 
not include notice of appeal rights.

[53 FR 219, Jan. 5, 1988]



           Subpart B--Confidentiality of Business Information



Sec. 2.201  Definitions.

    For the purposes of this subpart:
    (a) Person means an individual, partnership, corporation, 
association, or other public or private organization or legal entity, 
including Federal, State or local governmental bodies and agencies and 
their employees.
    (b) Business means any person engaged in a business, trade, 
employment, calling or profession, whether or not all or any part of the 
net earnings derived from such engagement by such person inure (or may 
lawfully inure) to the benefit of any private shareholder or individual.
    (c) Business information (sometimes referred to simply as 
information) means any information which pertains to the interests of 
any business, which was developed or acquired by that business, and 
(except where the context otherwise requires) which is possessed by EPA 
in recorded form.
    (d) Affected business means, with reference to an item of business 
information, a business which has asserted (and not waived or withdrawn) 
a business confidentiality claim covering the information, or a business 
which could be expected to make such a claim if it were aware that 
disclosure of the information to the public was proposed.
    (e) Reasons of business confidentiality include the concept of trade 
secrecy and other related legal concepts which give (or may give) a 
business the right to preserve the confidentiality of business 
information and to limit its use or disclosure by others in order that 
the business may obtain or retain business advantages it derives from 
its rights in the information. The definition is meant to encompass any 
concept which authorizes a Federal agency to withhold business 
information under 5 U.S.C. 552(b)(4), as well as any concept which 
requires EPA to withhold information from the public for the benefit of 
a business under 18 U.S.C. 1905 or any of the various statutes cited in 
Sec. 2.301 through Sec. 2.309.
    (f) [Reserved]
    (g) Information which is available to the public is information in 
EPA's possession which EPA will furnish to any member of the public upon 
request and which EPA may make public, release or otherwise make 
available to any person whether or not its disclosure has been 
requested.
    (h) Business confidentiality claim (or, simply, claim) means a claim 
or allegation that business information is entitled to confidential 
treatment for reasons of business confidentiality, or a request for a 
determination that such information is entitled to such treatment.
    (i) Voluntarily submitted information means business information in 
EPA's possession--
    (1) The submission of which EPA had no statutory or contractual 
authority to require; and
    (2) The submission of which was not prescribed by statute or 
regulation as a condition of obtaining some benefit (or avoiding some 
disadvantage) under a regulatory program of general applicability, 
including such regulatory programs as permit, licensing, registration, 
or certification programs, but excluding programs concerned solely or

[[Page 38]]

primarily with the award or administration by EPA of contracts or 
grants.
    (j) Recorded means written or otherwise registered in some form for 
preserving information, including such forms as drawings, photographs, 
videotape, sound recordings, punched cards, and computer tape or disk.
    (k) [Reserved]
    (l) Administrator, Regional Administrator, General Counsel, Regional 
Counsel, and Freedom of Information Officer mean the EPA officers or 
employees occupying the positions so titled.
    (m) EPA office means any organizational element of EPA, at any level 
or location. (The terms EPA office and EPA legal office are used in this 
subpart for the sake of brevity and ease of reference. When this subpart 
requires that an action be taken by an EPA office or by an EPA legal 
office, it is the responsibility of the officer or employee in charge of 
that office to take the action or ensure that it is taken.)
    (n) EPA legal office means the EPA General Counsel and any EPA 
office over which the General Counsel exercises supervisory authority, 
including the various Offices of Regional Counsel. (See paragraph (m) of 
this section.)
    (o) A working day is any day on which Federal government offices are 
open for normal business. Saturdays, Sundays, and official Federal 
holidays are not working days; all other days are.



Sec. 2.202  Applicability of subpart; priority where provisions conflict; records containing more than one kind of information.

    (a) Sections 2.201 through 2.215 establish basic rules governing 
business confidentiality claims, the handling by EPA of business 
information which is or may be entitled to confidential treatment, and 
determinations by EPA of whether information is entitled to confidential 
treatment for reasons of business confidentiality.
    (b) Various statutes (other than 5 U.S.C. 552) under which EPA 
operates contain special provisions concerning the entitlement to 
confidential treatment of information gathered under such statutes. 
Sections 2.301 through 2.311 prescribe rules for treatment of certain 
categories of business information obtained under the various statutory 
provisions. Paragraph (b) of each of those sections should be consulted 
to determine whether any of those sections applies to the particular 
information in question.
    (c) The basic rules of Sec. Sec. 2.201 through 2.215 govern except 
to the extent that they are modified or supplanted by the special rules 
of Sec. Sec. 2.301 through 2.311. In the event of a conflict between the 
provisions of the basic rules and those of a special rule which is 
applicable to the particular information in question, the provision of 
the special rule shall govern.
    (d) If two or more of the sections containing special rules apply to 
the particular information in question, and the applicable sections 
prescribe conflicting special rules for the treatment of the 
information, the rule which provides greater or wider availability to 
the public of the information shall govern.
    (e) For most purposes, a document or other record may usefully be 
treated as a single unit of information, even though in fact the 
document or record is comprised of a collection of individual items of 
information. However, in applying the provisions of this subpart, it 
will often be necessary to separate the individual items of information 
into two or more categories, and to afford different treatment to the 
information in each such category. The need for differentiation of this 
type may arise, e.g., because a business confidentiality claim covers 
only a portion of a record, or because only a portion of the record is 
eligible for confidential treatment. EPA offices taking action under 
this subpart must be alert to this problem.
    (f) In taking actions under this subpart, EPA offices should 
consider whether it is possible to obtain the affected business's 
consent to disclosure of useful portions of records while protecting the 
information which is or may be entitled to confidentiality (e.g., by 
withholding such portions of a record as would identify a business, or 
by disclosing data in the form of industry-wide aggregates, multi-year 
averages or totals, or some similar form).
    (g) This subpart does not apply to questions concerning entitlement 
to confidential treatment or information

[[Page 39]]

which concerns an individual solely in his personal, as opposed to 
business, capacity.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978; 
50 FR 51661, Dec. 18, 1985]



Sec. 2.203  Notice to be included in EPA requests, demands, and forms; method of asserting business confidentiality claim; effect of failure to assert claim at 
          time of submission.

    (a) Notice to be included in certain requests and demands for 
information, and in certain forms. Whenever an EPA office makes a 
written request or demand that a business furnish information which, in 
the office's opinion, is likely to be regarded by the business as 
entitled to confidential treatment under this subpart, or whenever an 
EPA office prescribes a form for use by businesses in furnishing such 
information, the request, demand, or form shall include or enclose a 
notice which--
    (1) States that the business may, if it desires, assert a business 
confidentiality claim covering part or all of the information, in the 
manner described by paragraph (b) of this section, and that information 
covered by such a claim will be disclosed by EPA only to the extent, and 
by means of the procedures, set forth in this subpart;
    (2) States that if no such claim accompanies the information when it 
is received by EPA, it may be made available to the public by EPA 
without further notice to the business; and
    (3) Furnishes a citation of the location of this subpart in the Code 
of Federal Regulations and the Federal Register.
    (b) Method and time of asserting business confidentiality claim. A 
business which is submitting information to EPA may assert a business 
confidentiality claim covering the information by placing on (or 
attaching to) the information, at the time it is submitted to EPA, a 
cover sheet, stamped or typed legend, or other suitable form of notice 
employing language such as trade secret, proprietary, or company 
confidential. Allegedly confidential portions of otherwise non-
confidential documents should be clearly identified by the business, and 
may be submitted separately to facilitate identification and handling by 
EPA. If the business desires confidential treatment only until a certain 
date or until the occurrence of a certain event, the notice should so 
state.
    (c) Effect of failure to assert claim at time of submission of 
information. If information was submitted by a business to EPA on or 
after October 1, 1976, in response to an EPA request or demand (or on an 
EPA-prescribed form) which contained the substance of the notice 
required by paragraph (a) of this section, and if no business 
confidentiality claim accompanied the information when it was received 
by EPA, the inquiry to the business normally required by 
Sec. 2.204(c)(2) need not be made. If a claim covering the information 
is received after the information itself is received, EPA will make such 
efforts as are administratively practicable to associate the late claim 
with copies of the previously-submitted information in EPA files (see 
Sec. 2.204(c)(1)). However, EPA cannot assure that such efforts will be 
effective, in light of the possibility of prior disclosure or widespread 
prior dissemination of the information.



Sec. 2.204  Initial action by EPA office.

    (a) Situations requiring action. This section prescribes procedures 
to be used by EPA offices in making initial determinations of whether 
business information is entitled to confidential treatment for reasons 
of business confidentiality. Action shall be taken under this section 
whenever an EPA office:
    (1) Learns that it is responsible for responding to a request under 
5 U.S.C. 552 for the release of business information; in such a case, 
the office shall issue an initial determination within the period 
specified in Sec. 2.112;
    (2) Desires to determine whether business information in its 
possession is entitled to confidential treatment, even though no request 
for release of the information has been received; or
    (3) Determines that it is likely that EPA eventually will be 
requested to disclose the information at some future date and thus will 
have to determine whether the information is entitled to confidential 
treatment. In such a case

[[Page 40]]

this section's procedures should be initiated at the earliest 
practicable time, in order to increase the time available for 
preparation and submission of comments and for issuance of 
determinations, and to make easier the task of meeting response 
deadlines if a request for release of the information is later received 
under 5 U.S.C. 552.
    (b) Previous confidentiality determination. The EPA office shall 
first ascertain whether there has been a previous determination, issued 
by a Federal court or by an EPA legal office acting under this subpart, 
holding that the information in question is entitled to confidential 
treatment for reasons of business confidentiality.
    (1) If such a determination holds that the information is entitled 
to confidential treatment, the EPA Office shall furnish any person whose 
request for the information is pending under 5 U.S.C. 552 an initial 
determination (see Sec. 2.111 and Sec. 2.113) that the information has 
previously been determined to be entitled to confidential treatment, and 
that the request is therefore denied. The office shall furnish such 
person the appropriate case citation or EPA determination. If the EPA 
office believes that a previous determination which was issued by an EPA 
legal office may be improper or no longer valid, the office shall so 
inform the EPA legal office, which shall consider taking action under 
Sec. 2.205(h).
    (2) With respect to all information not known to be covered by such 
a previous determination, the EPA office shall take action under 
paragraph (c) of this section.
    (c) Determining existence of business confidentiality claims. (1) 
Whenever action under this paragraph is required by paragraph (b)(2) of 
this section, the EPA office shall examine the information and the 
office's records to determine which businesses, if any, are affected 
businesses (see Sec. 2.201(d)), and to determine which businesses if 
any, have asserted business confidentiality claims which remain 
applicable to the information. If any business is found to have asserted 
an applicable claim, the office shall take action under paragraph (d) of 
this section with respect to each such claim.
    (2)(i) If the examination conducted under paragraph (c)(1) of this 
section discloses the existence of any business which, although it has 
not asserted a claim, might be expected to assert a claim if it knew EPA 
proposed to disclose the information, the EPA office shall contact a 
responsible official of each such business to learn whether the business 
asserts a claim covering the information. However, no such inquiry need 
be made to any business--
    (A) Which failed to assert a claim covering the information when 
responding to an EPA request or demand, or supplying information on an 
EPA form, which contained the substance of the statements prescribed by 
Sec. 2.203(a);
    (B) Which otherwise failed to assert a claim covering the 
information after being informed by EPA that such failure could result 
in disclosure of the information to the public; or
    (C) Which has otherwise waived or withdrawn a claim covering the 
information.
    (ii) If a request for release of the information under 5 U.S.C. 552 
is pending at the time inquiry is made under this paragraph (c)(2), the 
inquiry shall be made by telephone or equally prompt means, and the 
responsible official contacted shall be informed that any claim the 
business wishes to assert must be brought to the EPA office's attention 
no later than the close of business on the third working day after such 
inquiry.
    (iii) A record shall be kept of the results of any inquiry under 
this paragraph (c)(2). If any business makes a claim covering the 
information, the EPA office shall take further action under paragraph 
(d) of this section.
    (3) If, after the examination under paragraph (c)(1) of this 
section, and after any inquiry made under paragraph (c)(2) of this 
section, the EPA office knows of no claim covering the information and 
the time for response to any inquiry has passed, the information shall 
be treated for purposes of this subpart as not entitled to confidential 
treatment.
    (d) Preliminary determination. Whenever action under this paragraph 
is required by paragraph (c)(1) or (2) of this section on any business's 
claim, the EPA Office shall make a determination

[[Page 41]]

with respect to each such claim. Each determination shall be made after 
consideration of the provisions of Sec. 2.203, the applicable 
substantive criteria in Sec. 2.208 or elsewhere in this subpart, and any 
previously-issued determinations under this subpart which are 
applicable.
    (1) If, in connection with any business's claim, the office 
determines that the information may be entitled to confidential 
treatment, the office shall--
    (i) Furnish the notice of opportunity to submit comments prescribed 
by paragraph (e) of this section to each business which is known to have 
asserted an applicable claim and which has not previously been furnished 
such notice with regard to the information in question;
    (ii) Furnish, to any person whose request for release of the 
information is pending under 5 U.S.C. 552, a determination (in 
accordance with Sec. 2.113) that the information may be entitled to 
confidential treatment under this subpart and 5 U.S.C. 552(b)(4), that 
further inquiry by EPA pursuant to this subpart is required before a 
final determination on the request can be issued, that the person's 
request is therefore initially denied, and that after further inquiry a 
final determination will be issued by an EPA legal office; and
    (iii) Refer the matter to the appropriate EPA legal office, 
furnishing the information required by paragraph (f) of this section 
after the time has elapsed for receipt of comments from the affected 
business.
    (2) If, in connection with all applicable claims, the office 
determines that the information clearly is not entitled to confidential 
treatment, the office shall take the actions required by Sec. 2.205(f). 
However, if a business has previously been furnished notice under 
Sec. 2.205(f) with respect to the same information, no further notice 
need be furnished to that business. A copy of each notice furnished to a 
business under this paragraph (d)(2) and Sec. 2.205(f) shall be 
forwarded promptly to the appropriate EPA legal office.
    (e) Notice to affected businesses; opportunity to comment. (1) 
Whenever required by paragraph (d)(1) of this section, the EPA office 
shall promptly furnish each business a written notice stating that EPA 
is determining under this subpart whether the information is entitled to 
confidential treatment, and affording the business an opportunity to 
comment. The notice shall be furnished by certified mail (return receipt 
requested), by personal delivery, or by other means which allows 
verification of the fact and date of receipt. The notice shall state the 
address of the office to which the business's comments shall be 
addressed (the EPA office furnishing the notice, unless the General 
Counsel has directed otherwise), the time allowed for comments, and the 
method for requesting a time extension under Sec. 2.205(b)(2). The 
notice shall further state that EPA will construe a business's failure 
to furnish timely comments as a waiver of the business's claim.
    (2) If action under this section is occasioned by a request for the 
information under 5 U.S.C. 552, the period for comments shall be 15 
working days after the date of the business's receipt of the written 
notice. In other cases, the EPA office shall establish a reasonable 
period for comments (not less than 15 working days after the business's 
receipt of the written notice). The time period for comments shall be 
considered met if the business's comments are postmarked or hand 
delivered to the office designated in the notice by the date specified. 
In all cases, the notice shall call the business's attention to the 
provisions of Sec. 2.205(b).
    (3) At or about the time the written notice is furnished, the EPA 
office shall orally inform a responsible representative of the business 
(by telephone or otherwise) that the business should expect to receive 
the written notice, and shall request the business to contact the EPA 
office if the written notice has not been received within a few days, so 
that EPA may furnish a duplicate notice.
    (4) The written notice required by paragraph (e)(1) of this section 
shall invite the business's comments on the following points (subject to 
paragraph (e)(5) of this section):
    (i) The portions of the information which are alleged to be entitled 
to confidential treatment;

[[Page 42]]

    (ii) The period of time for which confidential treatment is desired 
by the business (e.g., until a certain date, until the occurrence of a 
specified event, or permanently);
    (iii) The purpose for which the information was furnished to EPA and 
the approximate date of submission, if known;
    (iv) Whether a business confidentiality claim accompanied the 
information when it was received by EPA;
    (v) Measures taken by the business to guard against undesired 
disclosure of the information to others;
    (vi) The extent to which the information has been disclosed to 
others, and the precautions taken in connection therewith;
    (vii) Pertinent confidentiality determinations, if any, by EPA or 
other Federal agencies, and a copy of any such determination, or 
reference to it, if available;
    (viii) Whether the business asserts that disclosure of the 
information would be likely to result in substantial harmful effects on 
the business' competitive position, and if so, what those harmful 
effects would be, why they should be viewed as substantial, and an 
explanation of the causal relationship between disclosure and such 
harmful effects; and
    (ix) Whether the business asserts that the information is 
voluntarily submitted information as defined in Sec. 2.201(i), and if 
so, whether and why disclosure of the information would tend to lessen 
the availability to EPA of similar information in the future.
    (5) To the extent that the EPA office already possesses the relevant 
facts, the notice need not solicit responses to the matters addressed in 
paragraphs (e)(4) (i) through (ix) of this section, although the notice 
shall request confirmation of EPA's understanding of such facts where 
appropriate.
    (6) The notice shall refer to Sec. 2.205(c) and shall include the 
statement prescribed by Sec. 2.203(a).
    (f) Materials to be furnished to EPA legal office. When a matter is 
referred to an EPA legal office under paragraph (d)(1) of this section, 
the EPA office taking action under this section shall forward promptly 
to the EPA legal office the following items:
    (1) A copy of the information in question, or (where the quantity or 
form of the information makes forwarding a copy of the information 
impractical) representative samples, a description of the information, 
or both;
    (2) A description of the circumstances and date of EPA's acquisition 
of the information;
    (3) The name, address, and telephone number of the EPA employee(s) 
most familiar with the information;
    (4) The name, address and telephone number of each business which 
asserts an applicable business confidentiality claim;
    (5) A copy of each applicable claim (or the record of the assertion 
of the claim), and a description of when and how each claim was 
asserted;
    (6) Comments concerning each business's compliance or noncompliance 
with applicable requirements of Sec. 2.203;
    (7) A copy of any request for release of the information pending 
under 5 U.S.C. 552;
    (8) A copy of the business's comments on whether the information is 
entitled to confidential treatment;
    (9) The office's comments concerning the appropriate substantive 
criteria under this subpart, and information the office possesses 
concerning the information's entitlement to confidential treatment; and
    (10) Copies of other correspondence or memoranda which pertain to 
the matter.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978; 
50 FR 51661, Dec. 18, 1985]



Sec. 2.205  Final confidentiality determination by EPA legal office.

    (a) Role of EPA legal office. (1) The appropriate EPA legal office 
(see paragraph (i) of this section) is responsible for making the final 
administrative determination of whether or not business information 
covered by a business confidentiality claim is entitled to confidential 
treatment under this subpart.
    (2) When a request for release of the information under 5 U.S.C. 552 
is pending, the EPA legal office's determination shall serve as the 
final determination on appeal from an initial denial of the request.

[[Page 43]]

    (i) If the initial denial was issued under Sec. 2.204(b)(1), a final 
determination by the EPA legal office is necessary only if the requestor 
has actually filed an appeal.
    (ii) If the initial denial was issued under Sec. 2.204(d)(1), 
however, the EPA legal office shall issue a final determination in every 
case, unless the request has been withdrawn. (Initial denials under 
Sec. 2.204(d)(1) are of a procedural nature, to allow further inquiry 
into the merits of the matter, and a requestor is entitled to a decision 
on the merits.) If an appeal from such a denial has not been received by 
the EPA Freedom of Information Officer on the tenth working day after 
issuance of the denial, the matter shall be handled as if an appeal had 
been received on that day, for purposes of establishing a schedule for 
issuance of an appeal decision under Sec. 2.117 of this part.
    (b) Comment period; extensions; untimeliness as waiver of claim. (1) 
Each business which has been furnished the notice and opportunity to 
comment prescribed by Sec. 2.204(d)(1) and Sec. 2.204(e) shall furnish 
its comments to the office specified in the notice in time to be 
postmarked or hand delivered to that office not later than the date 
specified in the notice (or the date established in lieu thereof under 
this section).
    (2) The period for submission of comments may be extended if, before 
the comments are due, a request for an extension of the comment period 
is made by the business and approved by the EPA legal office. Except in 
extraordinary circumstances, the EPA legal office will not approve such 
an extension without the consent of any person whose request for release 
of the information under 5 U.S.C. 552 is pending.
    (3) The period for submission of comments by a business may be 
shortened in the manner described in paragraph (g) of this section.
    (4) If a business's comments have not been received by the specified 
EPA office by the date they are due (including any approved extension), 
that office shall promptly inquire whether the business has complied 
with paragraph (b)(1) of this section. If the business has complied with 
paragraph (b)(1) but the comments have been lost in transmission, 
duplicate comments shall be requested.
    (c) Confidential treatment of comments from business. If information 
submitted to EPA by a business as part of its comments under this 
section pertains to the business's claim, is not otherwise possessed by 
EPA, and is marked when received in accordance with Sec. 2.203(b), it 
will be regarded by EPA as entitled to confidential treatment and will 
not be disclosed by EPA without the business's consent, unless its 
disclosure is duly ordered by a Federal court, notwithstanding other 
provisions of this subpart to the contrary.
    (d) Types of final determinations; matters to be considered. (1) If 
the EPA legal office finds that a business has failed to furnish 
comments under paragraph (b) of this section by the specified due date, 
it shall determine that the business has waived its claim. If, after 
application of the preceding sentence, no claim applies to the 
information, the office shall determine that the information is not 
entitled to confidential treatment under this subpart and, subject to 
Sec. 2.210, is available to the public.
    (2) In all other cases, the EPA legal office shall consider each 
business's claim and comments, the various provisions of this subpart, 
any previously-issued determinations under this subpart which are 
pertinent, the materials furnished it under Sec. 2.204(f), and such 
other materials as it finds appropriate. With respect to each claim, the 
office shall determine whether or not the information is entitled to 
confidential treatment for the benefit of the business that asserted the 
claim, and the period of any such entitlement (e.g., until a certain 
date, until the occurrence of a specified event, or permanently), and 
shall take further action under paragraph (e) or (f) of this section, as 
appropriate.
    (3) Whenever the claims of two or more businesses apply to the same 
information, the EPA legal office shall take action appropriate under 
the particular circumstances to protect the interests of all persons 
concerned (including any person whose request for the information is 
pending under 5 U.S.C. 552).
    (e) Determination that information is entitled to confidential 
treatment. If the

[[Page 44]]

EPA legal office determines that the information is entitled to 
confidential treatment for the full period requested by the business 
which made the claim, EPA shall maintain the information in confidence 
for such period, subject to paragraph (h) of this section, Sec. 2.209, 
and the other provisions of this subpart which authorize disclosure in 
specified circumstances, and the office shall so inform the business. If 
any person's request for the release of the information is then pending 
under 5 U.S.C. 552, the EPA legal office shall issue a final 
determination denying that request.
    (f) Determination that information is not entitled to confidential 
treatment; notice; waiting period; release of information. (1) Notice of 
denial (or partial denial) of a business confidentiality claim, in the 
form prescribed by paragraph (f)(2) of this section, shall be 
furnished--
    (i) By the EPA office taking action under Sec. 2.204, to each 
business on behalf of which a claim has been made, whenever 
Sec. 2.204(d)(2) requires such notice; and
    (ii) By the EPA legal office taking action under this section, to 
each business which has asserted a claim applicable to the information 
and which has furnished timely comments under paragraph (b) of this 
section, whenever the EPA legal office determines that the information 
is not entitled to confidential treatment under this subpart for the 
benefit of the business, or determines that the period of any 
entitlement to confidential treatment is shorter than that requested by 
the business.
    (2) The notice prescribed by paragraph (f)(1) of this section shall 
be written, and shall be furnished by certified mail (return receipt 
requested), by personal delivery, or by other means which allows 
verification of the fact of receipt and the date of receipt. The notice 
shall state the basis for the determination, that it constitutes final 
agency action concerning the business confidentiality claim, and that 
such final agency action may be subject to judicial review under Chapter 
7 of Title 5, United States Code. With respect to EPA's implementation 
of the determination, the notice shall state that (subject to 
Sec. 2.210) EPA will make the information available to the public on the 
tenth working day after the date of the business's receipt of the 
written notice (or on such later date as is established in lieu thereof 
by the EPA legal office under paragraph (f)(3) of this section), unless 
the EPA legal office has first been notified of the business's 
commencement of an action in a Federal court to obtain judicial review 
of the determination, and to obtain preliminary injunctive relief 
against disclosure. The notice shall further state that if such an 
action is timely commenced, EPA may nonetheless make the information 
available to the public (in the absence of an order by the court to the 
contrary), once the court has denied a motion for a preliminary 
injunction in the action or has otherwise upheld the EPA determination, 
or whenever it appears to the EPA legal office, after reasonable notice 
to the business, that the business is not taking appropriate measures to 
obtain a speedy resolution of the action. If the information has been 
found to be temporarily entitled to confidential treatment, the notice 
shall further state that the information will not be disclosed prior to 
the end of the period of such temporary entitlement to confidential 
treatment.
    (3) The period established in a notice under paragraph (f)(2) of 
this section for commencement of an action to obtain judicial review may 
be extended if, before the expiration of such period, a request for an 
extension is made by the business and approved by the EPA legal office. 
Except in extraordinary circumstances, the EPA legal office will not 
approve such an extension without the consent of any person whose 
request for release of the information under 5 U.S.C. 552 is pending.
    (4) After the expiration of any period of temporary entitlement to 
confidential treatment, a determination under this paragraph (f) shall 
be implemented by the EPA legal office by making the information 
available to the public (in the absence of a court order prohibiting 
disclosure) whenever--
    (i) The period provided for commencement by a business of an action 
to obtain judicial review of the determination has expired without 
notice to

[[Page 45]]

the EPA legal office of commencement of such an action;
    (ii) The court, in a timely-commenced action, has denied the 
business' motion for a preliminary injunction, or has otherwise upheld 
the EPA determination; or
    (iii) The EPA legal office, after reasonable notice has been 
provided to the business, finds that the business is not taking 
appropriate measures to obtain a speedy resolution of the timely-
commenced action.
    (5) Any person whose request for release of the information under 5 
U.S.C. 552 is pending at the time notice is given under paragraph (f)(2) 
of this section shall be furnished a determination under 5 U.S.C. 552 
stating the circumstances under which the information will be released.
    (g) Emergency situations. If the General Counsel finds that 
disclosure of information covered by a claim would be helpful in 
alleviating a situation posing an imminent and substantial danger to 
public health or safety, he may prescribe and make known to interested 
persons such shorter comment period (paragraph (b) of this section), 
post-determination waiting period (paragraph (f) of this section), or 
both, as he finds necessary under the circumstances.
    (h) Modification of prior determinations. A determination that 
information is entitled to confidential treatment for the benefit of a 
business, made under this subpart by an EPA legal office, shall continue 
in effect in accordance with its terms until an EPA legal office taking 
action under this section, or under Sec. 2.206 or Sec. 2.207, issues a 
final determination stating that the earlier determination no longer 
describes correctly the information's entitlement to confidential 
treatment because of change in the applicable law, newly-discovered or 
changed facts, or because the earlier determination was clearly 
erroneous. If an EPA legal office tentatively concludes that such an 
earlier determination is of questionable validity, it shall so inform 
the business, and shall afford the business an opportunity to furnish 
comments on pertinent issues in the manner described by Sec. 2.204(e) 
and paragraph (b) of this section. If, after consideration of any timely 
comments submitted by the business, the EPA legal office makes a revised 
final determination that the information is not entitled to confidential 
treatment, or that the period of entitlement to such treatment will end 
sooner than it would have ended under the earlier determination, the 
office will follow the procedure described in paragraph (f) of this 
section. Determinations under this section may be made only by, or with 
the concurrence of, the General Counsel.
    (i) Delegation and redelegation of authority. Unless the General 
Counsel otherwise directs, or this subpart otherwise specifically 
provides, determinations and actions required by this subpart to be made 
or taken by an EPA legal office shall be made or taken by the 
appropriate Regional counsel whenever the EPA office taking action under 
Sec. 2.204 or Sec. 2.206(b) is under the supervision of a Regional 
Administrator, and by the General Counsel in all other cases. The 
General Counsel may redelegate any or all of his authority under this 
subpart to any attorney employed by EPA on a full-time basis under the 
General Counsel's supervision. A Regional Counsel may redelegate any or 
all of his authority under this subpart to any attorney employed by EPA 
on a full-time basis under the Regional counsel's supervision.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51661, Dec. 18, 1985]



Sec. 2.206   Advance confidentiality determinations.

    (a) An advance determination under this section may be issued by an 
EPA legal office if--
    (1) EPA has requested or demanded that a business furnish business 
information to EPA;
    (2) The business asserts that the information, if submitted, would 
constitute voluntarily submitted information under Sec. 2.201(i);
    (3) The business will voluntarily submit the information for use by 
EPA only if EPA first determines that the information is entitled to 
confidential treatment under this subpart; and

[[Page 46]]

    (4) The EPA office which desires submission of the information has 
requested that the EPA legal office issue a determination under this 
section.
    (b) The EPA office requesting an advance determination under this 
section shall--
    (1) Arrange to have the business furnish directly to the EPA legal 
office a copy of the information (or, where feasible, a description of 
the nature of the information sufficient to allow a determination to be 
made), as well as the business's comments concerning the matters 
addressed in Sec. 2.204(e)(4), excluding, however, matters addressed in 
Sec. 2.204 (e)(4)(iii) and (e)(4)(iv); and
    (2) Furnish to the EPA legal office the materials referred to in 
Sec. 2.204(f) (3), (7), (8), and (9).
    (c) In making a determination under this section, the EPA legal 
office shall first determine whether or not the information would 
constitute voluntarily submitted information under Sec. 2.201(i). If the 
information would constitute voluntarily submitted information, the 
legal office shall further determine whether the information is entitled 
to confidential treatment.
    (d) If the EPA legal office determines that the information would 
not constitute voluntarily submitted information, or determines that it 
would constitute voluntarily submitted information but would not be 
entitled to confidential treatment, it shall so inform the business and 
the EPA office which requested the determination, stating the basis of 
the determination, and shall return to the business all copies of the 
information which it may have received from the business (except that if 
a request under 5 U.S.C. 552 for release of the information is received 
while the EPA legal office is in possession of the information, the 
legal office shall retain a copy of the information, but shall not 
disclose it unless ordered by a Federal court to do so). The legal 
office shall not disclose the information to any other EPA office or 
employee and shall not use the information for any purpose except the 
determination under this section, unless otherwise directed by a Federal 
court.
    (e) If the EPA legal office determines that the information would 
constitute voluntarily submitted information and that it is entitled to 
confidential treatment, it shall so inform the EPA office which 
requested the determination and the business which submitted it, and 
shall forward the information to the EPA office which requested the 
determination.



Sec. 2.207   Class determinations.

    (a) The General Counsel may make and issue a class determination 
under this section if he finds that--
    (1) EPA possesses, or is obtaining, related items of business 
information;
    (2) One or more characteristics common to all such items of 
information will necessarily result in identical treatment for each such 
item under one or more of the provisions in this subpart, and that it is 
therefore proper to treat all such items as a class for one or more 
purposes under this subpart; and
    (3) A class determination would serve a useful purpose.
    (b) A class determination shall clearly identify the class of 
information to which it pertains.
    (c) A class determination may state that all of the information in 
the class--
    (1) Is, or is not, voluntarily submitted information under 
Sec. 2.201(i);
    (2) Is, or is not, governed by a particular section of this subpart, 
or by a particular set of substantive criteria under this subpart;
    (3) Fails to satisfy one or more of the applicable substantive 
criteria, and is therefore ineligible for confidential treatment;
    (4) Satisfies one or more of the applicable substantive criteria; or
    (5) Satisfies one or more of the applicable substantive criteria 
during a certain period, but will be ineligible for confidential 
treatment thereafter.
    (d) The purpose of a class determination is simply to make known the 
Agency's position regarding the manner in which information within the 
class will be treated under one or more of the provisions of this 
subpart. Accordingly, the notice of opportunity to submit comments 
referred to in Sec. 2.204(d)(1)(ii) and Sec. 2.205(b), and the list of 
materials required to be furnished to the EPA legal office under

[[Page 47]]

Sec. 2.204(d)(1)(iii), may be modified to reflect the fact that the 
class determination has made unnecessary the submission of materials 
pertinent to one or more issues. Moreover, in appropriate cases, action 
based on the class determination may be taken under Sec. 2.204(b)(1), 
Sec. 2.204(d), Sec. 2.205(d), or Sec. 2.206. However, the existence of a 
class determination shall not, of itself, affect any right a business 
may have to receive any notice under Sec. 2.204(d)(2) or Sec. 2.205(f).



Sec. 2.208   Substantive criteria for use in confidentiality determinations.

    Determinations issued under Sec. Sec. 2.204 through 2.207 shall hold 
that business information is entitled to confidential treatment for the 
benefit of a particular business if--
    (a) The business has asserted a business confidentiality claim which 
has not expired by its terms, nor been waived nor withdrawn;
    (b) The business has satisfactorily shown that it has taken 
reasonable measures to protect the confidentiality of the information, 
and that it intends to continue to take such measures;
    (c) The information is not, and has not been, reasonably obtainable 
without the business's consent by other persons (other than governmental 
bodies) by use of legitimate means (other than discovery based on a 
showing of special need in a judicial or quasi-judicial proceeding);
    (d) No statute specifically requires disclosure of the information; 
and
    (e) Either--
    (1) The business has satisfactorily shown that disclosure of the 
information is likely to cause substantial harm to the business's 
competitive position; or
    (2) The information is voluntarily submitted information (see 
Sec. 2.201(i)), and its disclosure would be likely to impair the 
Government's ability to obtain necessary information in the future.



Sec. 2.209  Disclosure in special circumstances.

    (a) General.  Information which, under this subpart, is not 
available to the public may nonetheless be disclosed to the persons, and 
in the circumstances, described by paragraphs (b) through (g) of this 
section. (This section shall not be construed to restrict the disclosure 
of information which has been determined to be available to the public. 
However, business information for which a claim of confidentiality has 
been asserted shall be treated as being entitled to confidential 
treatment until there has been a determination in accordance with the 
procedures of this subpart that the information is not entitled to 
confidential treatment.)
    (b) Disclosure to Congress or the Comptroller General. (1) Upon 
receipt of a written request by the Speaker of the House, President of 
the Senate, chairman of a committee or subcommittee, or the Comptroller 
General, as appropriate, EPA will disclose business information to 
either House of Congress, to a committee or subcommittee of Congress, or 
to the Comptroller General, unless a statute forbids such disclosure.
    (2) If the request is for business information claimed as 
confidential or determined to be confidential, the EPA office processing 
the request shall provide notice to each affected business of the type 
of information disclosed and to whom it is disclosed. Notice shall be 
given at least ten days prior to disclosure, except where it is not 
possible to provide notice ten days in advance of any date established 
by the requesting body for responding to the request. Where ten days 
advance notice cannot be given, as much advance notice as possible shall 
be provided. Where notice cannot be given before the date established by 
the requesting body for responding to the request, notice shall be given 
as promptly after disclosure as possible. Such notice may be given by 
notice published in the Federal Register or by letter sent by certified 
mail, return receipt requested, or telegram. However, if the requesting 
body asks in writing that no notice under this subsection be given, EPA 
will give no notice.
    (3) At the time EPA discloses the business information, EPA will 
inform the requesting body of any unresolved business confidentiality 
claim known to cover the information and of any determination under this 
subpart that

[[Page 48]]

the information is entitled to confidential treatment.
    (c) Disclosure to other Federal agencies.  EPA may disclose business 
information to another Federal agency if--
    (1) EPA receives a written request for disclosures of the 
information from a duly authorized officer or employee of the other 
agency or on the initiative of EPA when such disclosure is necessary to 
enable the other agency to carry out a function on behalf of EPA;
    (2) The request, if any, sets forth the official purpose for which 
the information is needed;
    (3) When the information has been claimed as confidential or has 
been determined to be confidential, the responsible EPA office provides 
notice to each affected business of the type of information to be 
disclosed and to whom it is to be disclosed. At the discretion of the 
office, such notice may be given by notice published in the Federal 
Register at least 10 days prior to disclosure, or by letter sent by 
certified mail return receipt requested or telegram either of which must 
be received by the affected business at least 10 days prior to 
disclosure. However, no notice shall be required when EPA furnishes 
business information to another Federal agency to perform a function on 
behalf of EPA, including but not limited to--
    (i) Disclosure to the Department of Justice for purposes of 
investigation or prosecution of civil or criminal violations of Federal 
law related to EPA activities;
    (ii) Disclosure to the Department of Justice for purposes of 
representing EPA in any matter; or
    (iii) Disclosure to any Federal agency for purposes of performing an 
EPA statutory function under an interagency agreement.
    (4) EPA notifies the other agency of any unresolved business 
confidentiality claim covering the information and of any determination 
under this subpart that the information is entitled to confidential 
treatment, and that further disclosure of the information may be a 
violation of 18 U.S.C. 1905; and
    (5) The other agency agrees in writing not to disclose further any 
information designated as confidential unless--
    (i) The other agency has statutory authority both to compel 
production of the information and to make the proposed disclosure, and 
the other agency has, prior to disclosure of the information to anyone 
other than its officers and employees, furnished to each affected 
business at least the same notice to which the affected business would 
be entitled under this subpart;
    (ii) The other agency has obtained the consent of each affected 
business to the proposed disclosure; or
    (iii) The other agency has obtained a written statement from the EPA 
General Counsel or an EPA Regional Counsel that disclosure of the 
information would be proper under this subpart.
    (d) Court-ordered disclosure. EPA may disclose any business 
information in any manner and to the extent ordered by a Federal court. 
Where possible, and when not in violation of a specific directive from 
the court, the EPA office disclosing information claimed as confidential 
or determined to be confidential shall provide as much advance notice as 
possible to each affected business of the type of information to be 
disclosed and to whom it is to be disclosed, unless the affected 
business has actual notice of the court order. At the discretion of the 
office, subject to any restrictions by the court, such notice may be 
given by notice in the Federal Register, letter sent by certified mail 
return receipt requested, or telegram.
    (e) Disclosure within EPA. An EPA office, officer, or employee may 
disclose any business information to another EPA office, officer, or 
employee with an official need for the information.
    (f) Disclosure with consent of business. EPA may disclose any 
business information to any person if EPA has obtained the prior consent 
of each affected business to such disclosure.
    (g) Record of disclosures to be maintained. Each EPA office which 
discloses information to Congress, a committee or subcommittee of 
Congress, the Comptroller General, or another Federal agency under the 
authority of paragraph (b) or (c) of this section, shall maintain a 
record of the fact of such disclosure for a period of not less than 36 
months after such disclosure. Such a record, which may be in the form of 
a log, shall show the name of

[[Page 49]]

the affected businesses, the date of disclosure, the person or body to 
whom disclosure was made, and a description of the information 
disclosed.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40000, Sept. 8, 1978; 
50 FR 51661, Dec. 18, 1985]



Sec. 2.210   Nondisclosure for reasons other than business confidentiality or where disclosure is prohibited by other statute.

    (a) Information which is not entitled to confidential treatment 
under this subpart shall be made available to the public (using the 
procedures set forth in Sec. Sec. 2.204 and 2.205) if its release is 
requested under 5 U.S.C. 552, unless EPA determines (under subpart A of 
this part) that, for reasons other than reasons of business 
confidentiality, the information is exempt from mandatory disclosure and 
cannot or should not be made available to the public. Any such 
determination under subpart A shall be coordinated with actions taken 
under this subpart for the purpose of avoiding delay in responding to 
requests under 5 U.S.C. 552.
    (b) Notwithstanding any other provision of this subpart, if any 
statute not cited in this subpart appears to require EPA to give 
confidential treatment to any business information for reasons of 
business confidentiality, the matter shall be referred promptly to an 
EPA legal office for resolution. Pending resolution, such information 
shall be treated as if it were entitled to confidential treatment.



Sec. 2.211   Safeguarding of business information; penalty for wrongful disclosure.

    (a) No EPA officer or employee may disclose, or use for his or her 
private gain or advantage, any business information which came into his 
or her possession, or to which he or she gained access, by virtue of his 
or her official position or employment, except as authorized by this 
subpart.
    (b) Each EPA officer or employee who has custody or possession of 
business information shall take appropriate measures to properly 
safeguard such information and to protect against its improper 
disclosure.
    (c) Violation of paragraph (a) or (b) of this section shall 
constitute grounds for dismissal, suspension, fine, or other adverse 
personnel action. Willful violation of paragraph (a) of this section may 
result in criminal prosecution under 18 U.S.C. 1905 or other applicable 
statute.
    (d) Each contractor or subcontractor with the United States 
Government, and each employee of such contractor or subcontractor, who 
is furnished business information by EPA under Sec. Sec. 2.301(h), 
Sec. 2.302(h), 2.304(h), 2.305(h), 2.306(j), 2.307(h), 2.308(i), or 
2.310(h) shall use or disclose that information only as permitted by the 
contract or subcontract under which the information was furnished. 
Contractors or subcontractors shall take steps to properly safeguard 
business information including following any security procedures for 
handling and safeguarding business information which are contained in 
any manuals, procedures, regulations, or guidelines provided by EPA. Any 
violation of this paragraph shall constitute grounds for suspension or 
debarment of the contractor or subcontractor in question. A willful 
violation of this paragraph may result in criminal prosecution.

[41 FR 36902, Sept. 1, 1976, as amended at 50 FR 51662, Dec. 18, 1985; 
58 FR 461, Jan. 5, 1993]



Sec. 2.212   Establishment of control offices for categories of business information.

    (a) The Administrator, by order, may establish one or more mutually 
exclusive categories of business information, and may designate for each 
such category an EPA office (hereinafter referred to as a control 
office) which shall have responsibility for taking actions (other than 
actions required to be taken by an EPA legal office) with respect to all 
information within such category.
    (b) If a control office has been assigned responsibility for a 
category of business information, no other EPA office, officer, or 
employee may make available to the public (or otherwise disclose to 
persons other than EPA officers and employees) any information

[[Page 50]]

in that category without first obtaining the concurrence of the control 
office. Requests under 5 U.S.C. 552 for release of such information 
shall be referred to the control office.
    (c) A control office shall take the actions and make the 
determinations required by Sec. 2.204 with respect to all information in 
any category for which the control office has been assigned 
responsibility.
    (d) A control office shall maintain a record of the following, with 
respect to items of business information in categories for which it has 
been assigned responsibility:
    (1) Business confidentiality claims;
    (2) Comments submitted in support of claims;
    (3) Waivers and withdrawals of claims;
    (4) Actions and determinations by EPA under this subpart;
    (5) Actions by Federal courts; and
    (6) Related information concerning business confidentiality.



Sec. 2.213   Designation by business of addressee for notices and inquiries.

    (a) A business which wishes to designate a person or office as the 
proper addressee of communications from EPA to the business under this 
subpart may do so by furnishing in writing to the Freedom of Information 
Officer (A-101), Environmental Protection Agency, 401 M St. SW., 
Washington, DC 20460, the following information: The name and address of 
the business making the designation; the name, address, and telephone 
number of the designated person or office; and a request that EPA 
inquiries and communications (oral and written) under this subpart, 
including inquiries and notices which require reply within deadlines if 
the business is to avoid waiver of its rights under this subpart, be 
furnished to the designee pursuant to this section. Only one person or 
office may serve at any one time as a business's designee under this 
subpart.
    (b) If a business has named a designee under this section, the 
following EPA inquiries and notices to the business shall be addressed 
to the designee:
    (1) Inquiries concerning a business's desire to assert a business 
confidentiality claim, under Sec. 2.204(c)(2)(i)(A);
    (2) Notices affording opportunity to substantiate confidentiality 
claims, under Sec. 2.204(d)(1) and Sec. 2.204(e);
    (3) Inquires concerning comments, under Sec. 2.205(b)(4);
    (4) Notices of denial of confidential treatment and proposed 
disclosure of information, under Sec. 2.205(f);
    (5) Notices concerning shortened comment and/or waiting periods 
under Sec. 2.205(g);
    (6) Notices concerning modifications or overrulings of prior 
determinations, under Sec. 2.205(h);
    (7) Notices to affected businesses under Sec. Sec. 2.301(g) and 
2.301(h) and analogous provisions in Sec. Sec. 2.302, 2.303, 2.304, 
2.305, 2.306, 2.307, and 2.308; and
    (8) Notices to affected businesses under Sec. 2.209.
    (c) The Freedom of Information Officer shall, as quickly as 
possible, notify all EPA offices that may possess information submitted 
by the business to EPA, the Regional Freedom of Information Offices, the 
Office of General Counsel, and the offices of Regional Counsel of any 
designation received under this section. Businesses making designations 
under this section should bear in mind that several working days may be 
required for dissemination of this information within EPA and that some 
EPA offices may not receive notice of such designations.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40001, Sept. 8, 1978]



Sec. 2.214  Defense of Freedom of Information Act suits; participation by affected business.

    (a) In making final confidentiality determinations under this 
subpart, the EPA legal office relies to a large extent upon the 
information furnished by the affected business to substantiate its claim 
of confidentiality. The EPA legal office may be unable to verify the 
accuracy of much of the information submitted by the affected business.
    (b) If the EPA legal office makes a final confidentiality 
determination under this subpart that certain business information is 
entitled to confidential treatment, and EPA is sued by a requester under 
the Freedom of Information Act for disclosure of that information, EPA 
will:

[[Page 51]]

    (1) Notify each affected business of the suit within 10 days after 
service of the complaint upon EPA;
    (2) Where necessary to preparation of EPA's defense, call upon each 
affected business to furnish assistance; and
    (3) Not oppose a motion by any affected business to intervene as a 
party to the suit under rule 24(b) of the Federal Rules of Civil 
Procedure.
    (c) EPA will defend its final confidentiality determination, but EPA 
expects the affected business to cooperate to the fullest extent 
possible in this defense.

[43 FR 40001, Sept. 8, 1978]



Sec. 2.215  Confidentiality agreements.

    (a) No EPA officer, employee, contractor, or subcontractor shall 
enter into any agreement with any affected business to keep business 
information confidential unless such agreement is consistent with this 
subpart. No EPA officer, employee, contractor, or subcontractor shall 
promise any affected business that business information will be kept 
confidential unless the promise is consistent with this subpart.
    (b) If an EPA office has requested information from a State, local, 
or Federal agency and the agency refuses to furnish the information to 
EPA because the information is or may constitute confidential business 
information, the EPA office may enter into an agreement with the agency 
to keep the information confidential, notwithstanding the provisions of 
this subpart. However, no such agreement shall be made unless the 
General Counsel determines that the agreement is necessary and proper.
    (c) To determine that an agreement proposed under paragraph (b) of 
this section is necessary, the General Counsel must find:
    (1) The EPA office requesting the information needs the information 
to perform its functions;
    (2) The agency will not furnish the information to EPA without an 
agreement by EPA to keep the information confidential; and
    (3) Either:
    (i) EPA has no statutory power to compel submission of the 
information directly from the affected business, or
    (ii) While EPA has statutory power to compel submission of the 
information directly from the affected business, compelling submission 
of the information directly from the business would--
    (A) Require time in excess of that available to the EPA office to 
perform its necessary work with the information,
    (B) Duplicate information already collected by the other agency and 
overly burden the affected business, or
    (C) Overly burden the resources of EPA.
    (d) To determine that an agreement proposed under paragraph (b) of 
this section is proper, the General Counsel must find that the agreement 
states--
    (1) The purpose for which the information is required by EPA;
    (2) The conditions under which the agency will furnish the 
information to EPA;
    (3) The information subject to the agreement;
    (4) That the agreement does not cover information acquired by EPA 
from another source;
    (5) The manner in which EPA will treat the information; and
    (6) That EPA will treat the information in accordance with the 
agreement subject to an order of a Federal court to disclose the 
information.
    (e) EPA will treat any information acquired pursuant to an agreement 
under paragraph (b) of this section in accordance with the procedures of 
this subpart except where the agreement specifies otherwise.

[43 FR 40001, Sept. 8, 1978]
Sec. Sec. 2.216--2.300  [Reserved]



Sec. 2.301  Special rules governing certain information obtained under the Clean Air Act.

    (a) Definitions. For the purpose of this section:
    (1) Act means the Clean Air Act, as amended, 42 U.S.C. 7401 et seq.
    (2)(i) Emission data means, with reference to any source of emission 
of any substance into the air--
    (A) Information necessary to determine the identity, amount, 
frequency, concentration, or other characteristics (to the extent 
related to air quality) of

[[Page 52]]

any emission which has been emitted by the source (or of any pollutant 
resulting from any emission by the source), or any combination of the 
foregoing;
    (B) Information necessary to determine the identity, amount, 
frequency, concentration, or other characteristics (to the extent 
related to air quality) of the emissions which, under an applicable 
standard or limitation, the source was authorized to emit (including, to 
the extent necessary for such purposes, a description of the manner or 
rate of operation of the source); and
    (C) A general description of the location and/or nature of the 
source to the extent necessary to identify the source and to distinguish 
it from other sources (including, to the extent necessary for such 
purposes, a description of the device, installation, or operation 
constituting the source).
    (ii) Notwithstanding paragraph (a)(2)(i) of this section, the 
following information shall be considered to be emission data only to 
the extent necessary to allow EPA to disclose publicly that a source is 
(or is not) in compliance with an applicable standard or limitation, or 
to allow EPA to demonstrate the feasibility, practicability, or 
attainability (or lack thereof) of an existing or proposed standard or 
limitation:
    (A) Information concerning research, or the results of research, on 
any project, method, device or installation (or any component thereof) 
which was produced, developed, installed, and used only for research 
purposes; and
    (B) Information concerning any product, method, device, or 
installation (or any component thereof) designed and intended to be 
marketed or used commercially but not yet so marketed or used.
    (3) Standard or limitation means any emission standard or limitation 
established or publicly proposed pursuant to the Act or pursuant to any 
regulation under the Act.
    (4) Proceeding means any rulemaking, adjudication, or licensing 
conducted by EPA under the Act or under regulations which implement the 
Act, except for determinations under this subpart.
    (5) Manufacturer has the meaning given it in section 216(1) of the 
Act, 42 U.S.C. 7550(1).
    (b) Applicability. (1) This section applies to business information 
which was--
    (i) Provided or obtained under section 114 of the Act, 42 U.S.C. 
7414, by the owner or operator of any stationary source, for the purpose 
(A) of developing or assisting in the development of any implementation 
plan under section 110 or 111(d) of the Act, 42 U.S.C. 7410, 7411(d), 
any standard of performance under section 111 of the Act, 42 U.S.C. 
7411, or any emission standard under section 112 of the Act, 42 U.S.C. 
7412, (B) of determining whether any person is in violation of any such 
standard or any requirement of such a plan, or (C) of carrying out any 
provision of the Act (except a provision of Part II of the Act with 
respect to a manufacturer of new motor vehicles or new motor vehicle 
engines);
    (ii) Provided or obtained under section 208 of the Act, 42 U.S.C. 
7542, for the purpose of enabling the Administrator to determine whether 
a manufacturer has acted or is acting in compliance with the Act and 
regulations under the Act, or provided or obtained under section 206(c) 
of the Act, 42 U.S.C. 7525(c); or
    (iii) Provided in response to a subpoena for the production of 
papers, books, or documents issued under the authority of section 307(a) 
of the Act, 42 U.S.C. 7607(a).
    (2) Information will be considered to have been provided or obtained 
under section 114 of the Act if it was provided in response to a request 
by EPA made for any of the purposes stated in section 114, or if its 
submission could have been required under section 114, regardless of 
whether section 114 was cited as the authority for any request for the 
information, whether an order to provide the information was issued 
under section 113(a) of the Act, 42 U.S.C. 7413(a), whether an action 
was brought under section 113(b) of the Act, 42 U.S.C. 7413(b), or 
whether the information was provided directly to EPA or through some 
third person.
    (3) Information will be considered to have been provided or obtained 
under section 208 of the Act if it was provided

[[Page 53]]

in response to a request by EPA made for any of the purposes stated in 
section 208, or if its submission could have been required under section 
208, regardless of whether section 208 was cited as the authority for 
any request for the information, whether an action was brought under 
section 204 of the Act, 42 U.S.C. 7523, or whether the information was 
provided directly to EPA or through some third person.
    (4) Information will be considered to have been provided or obtained 
under section 206(c) of the Act if it was provided in response to a 
request by EPA made for any of the purposes stated in section 206(c), or 
if its submission could have been required under section 206(c) 
regardless of whether section 206(c) was cited as authority for any 
request for the information, whether an action was brought under section 
204 of the Act, 42 U.S.C. 7523, or whether the information was provided 
directly to EPA or through some third person.
    (5) Information will be considered to have been provided or obtained 
under section 307(a) of the Act if it was provided in response to a 
subpoena issued under section 307(a), or if its production could have 
been required by subpoena under section 307(a), regardless of whether 
section 307(a) was cited as the authority for any request for the 
information, whether a subpoena was issued by EPA, whether a court 
issued an order under section 307(a), or whether the information was 
provided directly to EPA or through some third person.
    (c) Basic rules which apply without change. Sections 2.201 through 
2.207, Sec. 2.209 and Sec. Sec. 2.211 through 2.215 apply without change 
to information to which this section applies.
    (d) [Reserved]
    (e) Substantive criteria for use in confidentiality determinations. 
Section 2.208 applies to information to which this section applies, 
except that information which is emission data, a standard or 
limitation, or is collected pursuant to section 211(b)(2)(A) of the Act 
is not eligible for confidential treatment. No information to which this 
section applies is voluntarily submitted information.
    (f) Availability of information not entitled to confidential 
treatment. Section 2.210 does not apply to information to which this 
section applies. Emission data, standards or limitations, and any other 
information provided under section 114 or 208 of the Act which is 
determined under this subpart not to be entitled to confidential 
treatment, shall be available to the public notwithstanding any other 
provision of this part. Emission data and standards or limitations 
provided in response to a subpoena issued under section 307(a) of the 
Act shall be available to the public notwithstanding any other provision 
of this part. Information (other than emission data and standards or 
limitations) provided in response to a subpoena issued under section 
307(a) of the Act, which is determined under this subpart not to be 
entitled to confidential treatment, shall be available to the public, 
unless EPA determines that the information is exempt from mandatory 
disclosure under 5 U.S.C. 552(b) for reasons other than reasons of 
business confidentiality and cannot or should not be made available to 
the public.
    (g) Disclosure of information relevant to a proceeding. (1) Under 
sections 114, 208 and 307 of the Act, any information to which this 
section applies may be released by EPA because of the relevance of the 
information to a proceeding, notwithstanding the fact that the 
information otherwise might be entitled to confidential treatment under 
this subpart. Release of information because of its relevance to a 
proceeding shall be made only in accordance with this paragraph (g).
    (2) In connection with any proceeding other than a proceeding 
involving a decision by a presiding officer after an evidentiary or 
adjudicatory hearing, information to which this section applies which 
may be entitled to confidential treatment may be made available to the 
public under this paragraph (g)(2). No information shall be made 
available to the public under this paragraph (g)(2) until any affected 
business has been informed that EPA is considering making the 
information available to the public under this paragraph (g)(2) in 
connection with an identified proceeding, and has afforded the business 
a reasonable period for comment (such notice and opportunity to comment 
may be afforded in connection

[[Page 54]]

with the notice prescribed by Sec. 2.204(d)(1) and Sec. 2.204(e)). 
Information may be made available to the public under this paragraph 
(g)(2) only if, after consideration of any timely comments submitted by 
the business, the General Counsel determines that the information is 
relevant to the subject of the proceeding and the EPA office conducting 
the proceeding determines that the public interest would be served by 
making the information available to the public. Any affected business 
shall be given at least 5 days' notice by the General Counsel prior to 
making the information available to the public.
    (3) In connection with any proceeding involving a decision by a 
presiding officer after an evidentiary or adjudicatory hearing, 
information to which this section applies which may be entitled to 
confidential treatment may be made available to the public, or to one or 
more parties of record to the proceeding, upon EPA's initiative, under 
this paragraph (g)(3). An EPA office proposing disclosure of information 
under this paragraph (g)(3), shall so notify the presiding officer in 
writing. Upon receipt of such a notification, the presiding officer 
shall notify each affected business that disclosure under this paragraph 
(g)(3) has been proposed, and shall afford each such business a period 
for comment found by the presiding officer to be reasonable under the 
circumstances. Information may be disclosed under this paragraph (g)(3) 
only if, after consideration of any timely comments submitted by the 
business, the EPA office determines in writing that, for reasons 
directly associated with the conduct of the proceeding, the contemplated 
disclosure would serve the public interest, and the presiding officer 
determines in writing that the information is relevant to a matter in 
controversy in the proceeding. The presiding officer may condition 
disclosure of the information to a party of record on the making of such 
protective arrangements and commitments as he finds to be warranted. 
Disclosure to one or more parties of record, under protective 
arrangements or commitments, shall not, of itself, affect the 
eligibility of information for confidential treatment under the other 
provisions of this subpart. Any affected business shall be given at 
least 5 days notice by the presiding officer prior to making the 
information available to the public or to one or more of the parties of 
record to the proceeding.
    (4) In connection with any proceeding involving a decision by a 
presiding officer after an evidentiary or adjudicatory hearing, 
information to which this section applies may be made available to one 
or more parties of record to the proceeding, upon request of a party, 
under this paragraph (g)(4). A party of record seeking disclosure of 
information shall direct his request to the presiding officer. Upon 
receipt of such a request, the presiding officer shall notify each 
affected business that disclosure under this paragraph (g)(4) has been 
requested, and shall afford each such business a period for comment 
found by the presiding officer to be reasonable under the circumstances. 
Information may be disclosed to a party of record under this paragraph 
(g)(4) only if, after consideration of any timely comments submitted by 
the business, the presiding officer determines in writing that (i) the 
party of record has satisfactorily shown that with respect to a 
significant matter which is in controversy in the proceeding, the 
party's ability to participate effectively in the proceeding will be 
significantly impaired unless the information is disclosed to him, and 
(ii) any harm to an affected business that would result from the 
disclosure is likely to be outweighed by the benefit to the proceeding 
and to the public interest that would result from the disclosure. The 
presiding officer may condition disclosure of the information to a party 
of record on the making of such protective arrangements and commitments 
as he finds to be warranted. Disclosure to one or more parties of 
record, under protective arrangements or commitments, shall not, of 
itself, affect the eligibility of information to confidential treatment 
under the other provisions of this subpart. Any affected business shall 
be given at least 5 days notice by the presiding officer prior to making 
the information available to one or more of the parties of record to the 
proceeding.

[[Page 55]]

    (h) Disclosure to authorized representatives. (1) Under sections 
114, 208 and 307(a) of the Act, EPA possesses authority to disclose to 
any authorized representative of the United States any information to 
which this section applies, notwithstanding the fact that the 
information might otherwise be entitled to confidential treatment under 
this subpart. Such authority may be exercised only in accordance with 
paragraph (h) (2) or (3) of this section.
    (2)(i) A person under contract or subcontract to the United States 
government to perform work in support of EPA in connection with the Act 
or regulations which implement the Act may be considered an authorized 
representative of the United States for purposes of this paragraph (h). 
For purposes of this section, the term ``contract'' includes grants and 
cooperative agreements under the Environmental Programs Assistance Act 
of 1984 (Pub. L. 98-313), and the term ``contractor'' includes grantees 
and cooperators under the Environmental Programs Assistance Act of 1984. 
Subject to the limitations in this paragraph (h)(2), information to 
which this section applies may be disclosed:
    (A) To a contractor or subcontractor with EPA, if the EPA program 
office managing the contract first determines in writing that such 
disclosure is necessary in order that the contractor or subcontractor 
may carry out the work required by the contract or subcontract; or
    (B) To a contractor or subcontractor with an agency other than EPA, 
if the EPA program office which provides the information to that agency, 
contractor, or subcontractor first determines in writing, in 
consultation with the General Counsel, that such disclosure is necessary 
in order that the contractor or subcontractor may carry out the work 
required by the contract or subcontract.
    (ii) No information shall be disclosed under this paragraph (h)(2), 
unless this contract or subcontract in question provides:
    (A) That the contractor or subcontractor and the contractor's or 
subcontractor's employees shall use the information only for the purpose 
of carrying out the work required by the contract or subcontract, shall 
refrain from disclosing the information to anyone other than EPA without 
the prior written approval of each affected business or of an EPA legal 
office and shall return to EPA all copies of the information (and any 
abstracts or extracts therefrom) upon request by the EPA program office, 
whenever the information is no longer required by the contractor or 
subcontractor for the performance of the work required under the 
contract or subcontract, or upon completion of the contract or 
subcontract (where the information was provided to the contractor or 
subcontractor by an agency other than EPA, the contractor may disclose 
or return the information to that agency);
    (B) That the contractor or subcontractor shall obtain a written 
agreement to honor such terms of the contract or subcontract from each 
of the contractor's or subcontractor's employees who will have access to 
the information, before such employee is allowed such access; and
    (C) That the contractor or subcontractor acknowledges and agrees 
that the contract or subcontract provisions concerning the use and 
disclosure of business information are included for the benefit of, and 
shall be enforceable by, both the United States government and any 
affected business having an interest in information concerning it 
supplied to the contractor or subcontractor by the United States 
government under the contract or subcontract.
    (iii) No information shall be disclosed under this paragraph (h)(2) 
until each affected business has been furnished notice of the 
contemplated disclosure by the EPA program office and has been afforded 
a period found reasonable by that office (not less than 5 working days) 
to submit its comments. Such notice shall include a description of the 
information to be disclosed, the identity of the contractor or 
subcontractor, the contract or subcontract number, if any, and the 
purposes to be served by the disclosure.
    (iv) The EPA program office shall prepare a record of each 
disclosure under this paragraph (h)(2), showing the contractor or 
subcontractor, the contract or subcontract number, the

[[Page 56]]

information disclosed, the date(s) of disclosure, and each affected 
business. The EPA program office shall maintain the record of disclosure 
and the determination of necessity prepared under paragraph (h)(2)(i) of 
this section for a period of not less than 36 months after the date of 
the disclosure.
    (3) A state or local governmental agency which has duties or 
responsibilities under the Act, or under regulations which implement the 
Act, may be considered an authorized representative of the United States 
for purposes of this paragraph (h). Information to which this section 
applies may be furnished to such an agency at the agency's written 
request, but only if--
    (i) The agency has first furnished to the EPA office having custody 
of the information a written opinion from the agency's chief legal 
officer or counsel stating that under applicable state or local law the 
agency has the authority to compel a business which possesses such 
information to disclose it to the agency, or
    (ii) Each affected business is informed of those disclosures under 
this paragraph (h)(3) which pertain to it, and the agency has shown to 
the satisfaction of an EPA legal office that the agency's use and 
disclosure of such information will be governed by state or local law 
and procedures which will provide adequate protection to the interests 
of affected businesses.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40002, Sept. 8, 1978; 
43 FR 42251, Sept. 20, 1978; 50 FR 51662, Dec. 18, 1985; 58 FR 461, Jan. 
5, 1993; 58 FR 5061, Jan 19, 1993; 58 FR 7189, Feb. 5, 1993]



Sec. 2.302  Special rules governing certain information obtained under the Clean Water Act.

    (a) Definitions. For the purposes of this section:
    (1) Act means the Clean Water Act, as amended, 33 U.S.C. 1251 et 
seq.
    (2)(i) Effluent data means, with reference to any source of 
discharge of any pollutant (as that term is defined in section 502(6) of 
the Act, 33 U.S.C. 1362 (6))--
    (A) Information necessary to determine the identity, amount, 
frequency, concentration, temperature, or other characteristics (to the 
extent related to water quality) of any pollutant which has been 
discharged by the source (or of any pollutant resulting from any 
discharge from the source), or any combination of the foregoing;
    (B) Information necessary to determine the identity, amount, 
frequency, concentration, temperature, or other characteristics (to the 
extent related to water quality) of the pollutants which, under an 
applicable standard or limitation, the source was authorized to 
discharge (including, to the extent necessary for such purpose, a 
description of the manner or rate of operation of the source); and
    (C) A general description of the location and/or nature of the 
source to the extent necessary to identify the source and to distinguish 
it from other sources (including, to the extent necessary for such 
purposes, a description of the device, installation, or operation 
constituting the source).
    (ii) Notwithstanding paragraph (a)(2)(i) of this section, the 
following information shall be considered to be effluent data only to 
the extent necessary to allow EPA to disclose publicly that a source is 
(or is not) in compliance with an applicable standard or limitation, or 
to allow EPA to demonstrate the feasibility, practicability, or 
attainability (or lack thereof) of an existing or proposed standard or 
limitation:
    (A) Information concerning research, or the results of research, on 
any product, method, device, or installation (or any component thereof) 
which was produced, developed, installed, and used only for research 
purposes; and
    (B) Information concerning any product, method, device, or 
installation (or any component thereof) designed and intended to be 
marketed or used commercially but not yet so marketed or used.
    (3) Standard or limitation means any prohibition, any effluent 
limitation, or any toxic, pre-treatment or new source performance 
standard established or publicly proposed pursuant to the Act or 
pursuant to regulations under the Act, including limitations or 
prohibitions in a permit issued or proposed by EPA or by a State under 
section 402 of the Act, 33 U.S.C. 1342.

[[Page 57]]

    (4) Proceeding means any rulemaking, adjudication, or licensing 
conducted by EPA under the Act or under regulations which implement the 
Act, except for determinations under this part.
    (b) Applicability. (1) This section applies only to business 
information--
    (i) Provided to or obtained by EPA under section 308 of the Act, 33 
U.S.C. 1318, by or from the owner or operator of any point source, for 
the purpose of carrying out the objective of the Act (including but not 
limited to developing or assisting in the development of any standard or 
limitation under the Act, or determining whether any person is in 
violation of any such standard or limitation); or
    (ii) Provided to or obtained by EPA under section 509(a) of the Act, 
33 U.S.C. 1369(a).
    (2) Information will be considered to have been provided or obtained 
under section 308 of the Act if it was provided in response to a request 
by EPA made for any of the purposes stated in section 308, or if its 
submission could have been required under section 308, regardless of 
whether section 308 was cited as the authority for any request for the 
information, whether an order to provide the information was issued 
under section 309(a)(3) of the Act, 33 U.S.C. 1319(a)(3), whether a 
civil action was brought under section 309(b) of the Act, 33 U.S.C. 
1319(b), and whether the information was provided directly to EPA or 
through some third person.
    (3) Information will be considered to have been provided or obtained 
under section 509(a) of the Act if it was provided in response to a 
subpoena issued under section 509(a), or if its production could have 
been required by subpoena under section 509(a), regardless of whether 
section 509(a) was cited as the authority for any request for the 
information, whether a subpoena was issued by EPA, whether a court 
issued an order under section 307(a), or whether the information was 
provided directly to EPA or through some third person.
    (4) This section specifically does not apply to information obtained 
under section 310(d) or 312(g)(3) of the Act, 33 U.S.C. 1320(d), 
1322(g)(3).
    (c) Basic rules which apply without change. Sections 2.201 through 
2.207, 2.209, 2.211 through 2.215 apply without change to information to 
which this section applies.
    (d) [Reserved]
    (e) Substantive criteria for use in confidentiality determinations. 
Section 2.208 applies to information to which this section applies, 
except that information which is effluent data or a standard or 
limitation is not eligible for confidential treatment. No information to 
which this section applies is voluntarily submitted information.
    (f) Availability of information not entitled to confidential 
treatment. Section 2.210 does not apply to information to which this 
section applies. Effluent data, standards or limitations, and any other 
information provided or obtained under section 308 of the Act which is 
determined under this subpart not to be entitled to confidential 
treatment, shall be available to the public notwithstanding any other 
provision of this part. Effluent data and standards or limitations 
provided in response to a subpoena issued under section 509(a) of the 
Act shall be available to the public notwithstanding any other provision 
of this part. Information (other than effluent data and standards or 
limitations) provided in response to a subpoena issued under section 
509(a) of the Act, which is determined under this subpart not to be 
entitled to confidential treatment, shall be available to the public, 
unless EPA determines that the information is exempt from mandatory 
disclosure under 5 U.S.C. 552(b) for reasons other than reasons of 
business confidentiality and cannot or should not be made available to 
the public.
    (g) Disclosure of information relevant to a proceeding. (1) Under 
sections 308 and 509(a) of the Act, any information to which this 
section applies may be released by EPA because of the relevance of the 
information to a proceeding, notwithstanding the fact that the 
information otherwise might be entitled to confidential treatment under 
this subpart. Release of information to which this section applies 
because of its relevance to a proceeding shall be made only in 
accordance with this paragraph (g).

[[Page 58]]

    (2)-(4) The provisions of Sec. 2.301(g) (2), (3), and (4) are 
incorporated by reference as paragraphs (g) (2), (3), and (4), 
respectively of this section.
    (h) Disclosure to authorized representatives. (1) Under sections 308 
and 509(a) of the Act, EPA possesses authority to disclose to any 
authorized representative of the United States any information to which 
this section applies, notwithstanding the fact that the information 
might otherwise be entitled to confidential treatment under this 
subpart. Such authority may be exercised only in accordance with 
paragraph (h)(2) or (h)(3) of this section.
    (2)-(3) The provisions of Sec. 2.301(h) (2) and (3) are incorporated 
by reference as paragraphs (h) (2) and (3), respectively, of this 
section.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40003, Sept. 8, 1978]



Sec. 2.303   Special rules governing certain information obtained under the Noise Control Act of 1972.

    (a) Definitions. For the purposes of this section:
    (1) Act means the Noise Control Act of 1972, 42 U.S.C. 4901 et seq.
    (2) Manufacturer has the meaning given it in 42 U.S.C. 4902(6).
    (3) Product has the meaning given it in 42 U.S.C. 4902(3).
    (4) Proceeding means any rulemaking, adjudication, or licensing 
conducted by EPA under the Act or under regulations which implement the 
Act, except for determinations under this subpart.
    (b) Applicability. This section applies only to information provided 
to or obtained by EPA under section 13 of the Act, 42 U.S.C. 4912, by or 
from any manufacturer of any product to which regulations under section 
6 or 8 of the Act (42 U.S.C. 4905, 4907) apply. Information will be 
deemed to have been provided or obtained under section 13 of the Act, if 
it was provided in response to a request by EPA made for the purpose of 
enabling EPA to determine whether the manufacturer has acted or is 
acting in compliance with the Act, or if its submission could have been 
required under section 13 of the Act, regardless of whether section 13 
was cited as authority for the request, whether an order to provide such 
information was issued under section 11(d) of the Act, 42 U.S.C. 
4910(d), and whether the information was provided directly to EPA by the 
manufacturer or through some third person.
    (c) Basic rules which apply without change. Sections 2.201 through 
2.207 and 2.209 through 2.215 apply without change to information to 
which this section applies.
    (d) [Reserved]
    (e) Substantive criteria for use in confidentiality determinations. 
Section 2.208 applies without change to information to which this 
section applies; however, no information to which this section applies 
is voluntarily submitted information.
    (f) [Reserved]
    (g) Disclosure of information relevant to a proceeding. (1) Under 
section 13 of the Act, any information to which this section applies may 
be released by EPA because of its relevance to a matter in controversy 
in a proceeding, notwithstanding the fact that the information otherwise 
might be entitled to confidential treatment under this subpart. Release 
of information because of its relevance to a proceeding shall be made 
only in accordance with this paragraph (g).
    (2)-(4) The provisions of Sec. 2.301(g) (2), (3), and (4) are 
incorporated by reference as paragraphs (g) (2), (3), and (4), 
respectively, of this section.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40003, Sept. 8, 1978]



Sec. 2.304   Special rules governing certain information obtained under the Safe Drinking Water Act.

    (a) Definitions. For the purposes of this section:
    (1) Act means the Safe Drinking Water Act, 42 U.S.C. 300f et seq.
    (2) Contaminant means any physical, chemical, biological, or 
radiological substance or matter in water.
    (3) Proceeding means any rulemaking, adjudication, or licensing 
process conducted by EPA under the Act or under regulations which 
implement the Act, except for any determination under this part.
    (b) Applicability. (1) This section applies only to information--
    (i) Which was provided to or obtained by EPA pursuant to a 
requirement of a

[[Page 59]]

regulation which was issued by EPA under the Act for the purpose of--
    (A) Assisting the Administrator in establishing regulations under 
the Act;
    (B) Determining whether the person providing the information has 
acted or is acting in compliance with the Act; or
    (C) Administering any program of financial assistance under the Act; 
and
    (ii) Which was provided by a person--
    (A) Who is a supplier of water, as defined in section 1401(5) of the 
Act, 42 U.S.C. 300f(5);
    (B) Who is or may be subject to a primary drinking water regulation 
under section 1412 of the Act, 42 U.S.C. 300g-1;
    (C) Who is or may be subject to an applicable underground injection 
control program, as defined in section 1422(d) of the Act, 42 
U.S.C.300h-1(d);
    (D) Who is or may be subject to the permit requirements of section 
1424(b) of the Act, 42 U.S.C. 300h-3(b);
    (E) Who is or may be subject to an order issued under section 
1441(c) of the Act, 42 U.S.C. 300j(c); or
    (F) Who is a grantee, as defined in section 1445(e) of the Act, 42 
U.S.C. 300j-4(e).
    (2) This section applies to any information which is described by 
paragraph (b)(1) of this section if it was provided in response to a 
request by EPA or its authorized representative (or by a State agency 
administering any program under the Act) made for any purpose stated in 
paragraph (b)(1) of this section, or if its submission could have been 
required under section 1445 of the Act, 42 U.S.C. 300j-4, regardless of 
whether such section was cited in any request for the information, or 
whether the information was provided directly to EPA or through some 
third person.
    (c) Basic rules which apply without change. Sections 2.201 through 
2.207, 2.209, and 2.211 through 2.215 apply without change to 
information to which this section applies.
    (d) [Reserved]
    (e) Substantive criteria for use in confidentiality determinations. 
Section 2.208 applies to information to which this section applies, 
except that information which deals with the existence, absence, or 
level of contaminants in drinking water is not eligible for confidential 
treatment. No information to which this section applies is voluntarily 
submitted information.
    (f) Nondisclosure for reasons other than business confidentiality or 
where disclosure is prohibited by other statute. Section 2.210 applies 
to information to which this section applies, except that information 
which deals with the existence, absence, or level of contaminants in 
drinking water shall be available to the public notwithstanding any 
other provision of this part.
    (g) Disclosure of information relevant to a proceeding. (1) Under 
section 1445(d) of the Act, any information to which this section 
applies may be released by EPA because of the relevance of the 
information to a proceeding, notwithstanding the fact that the 
information otherwise might be entitled to confidential treatment under 
this subpart. Release of information to which this section applies 
because of its relevance to a proceeding shall be made only in 
accordance with this paragraph (g).
    (2)-(4) The provisions of Sec. 2.301(g) (2), (3), (4) are 
incorporated by reference as paragraphs (g) (2), (3), and (4), 
respectively, of this section.
    (h) Disclosure to authorized representatives. (1) Under section 
1445(d) of the Act, EPA possesses authority to disclose to any 
authorized representative of the United States any information to which 
this section applies, notwithstanding the fact that the information 
otherwise might be entitled to confidential treatment under this 
subpart. Such authority may be exercised only in accordance with 
paragraph (h)(2) or (h)(3) of this section.
    (2)-(3) The provisions of Sec. 2.301(h) (2) and (3) are incorporated 
by reference as paragraphs (h) (2) and (3), respectively, of this 
section.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40003, Sept. 8, 1978]



Sec. 2.305  Special rules governing certain information obtained under the Solid Waste Disposal Act, as amended.

    (a) Definitions. For purposes of this section:
    (1) Act means the Solid Waste Disposal Act, as amended, including 
amendments made by the Resource

[[Page 60]]

Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6901 et 
seq.
    (2) Person has the meaning given it in section 1004(15) of the Act, 
42 U.S.C. 6903(15).
    (3) Hazardous waste has the meaning given it in section 1004(5) of 
the Act, 42 U.S.C. 6903(5).
    (4) Proceeding means any rulemaking, adjudication, or licensing 
conducted by EPA under the Act or under regulations which implement the 
Act including the issuance of administrative orders and the approval or 
disapproval of plans (e.g. closure plans) submitted by persons subject 
to regulation under the Act, but not including determinations under this 
subpart.
    (b) Applicability. This section applies to information provided to 
or obtained by EPA under section 3001(b)(3)(B), 3007, or 9005 of the 
Act, 42 U.S.C 6921(b)(3)(B), 6927, or 6995. Information will be 
considered to have been provided or obtained under sections 
3001(b)(3)(B), 3007, or 9005 of the Act if it was provided in response 
to a request from EDA made for any of the purposes stated in the Act or 
if its submission could have been required under those provisions of the 
Act regardless of whether a specific section was cited as the authority 
for any request for the information or whether the information was 
provide directly to EPA or through some third person.
    (c) Basic rules which apply without change. Sections 2.201 through 
2.207 and 2.209 through 2.215 apply without change to information to 
which this section applies.
    (d) [Reserved]
    (e) Substantive criteria for use in confidentiality determinations. 
Section 2.208 applies without change to information to which this 
section applies; however, no information to which this section applies 
is voluntarily submitted information.
    (f) [Reserved]
    (g) Disclosure of information relevant in a proceeding. (1) Under 
sections 3007(b) and 9005(b) of the Act (42 U.S.C. 6927(b) and 6995(b)), 
any information to which this section applies may be disclosed by EPA 
because of the relevance of the information in a proceeding under the 
Act, notwithstanding the fact that the information otherwise might be 
entitled to confidential treatment under this subpart. Disclosure of 
information to which this section applies because of its relevance in a 
proceeding shall be made only in accordance with this paragraph (g).
    (2)-(4) The provisions of Sec. 2.301(g) (2), (3), and (4) are 
incorporated by reference as paragraphs (g) (2), (3), and (4), 
respectively, of this section.
    (h) Disclosure to authorized representatives. (1) Under sections 
3001(b)(3)(B), 3007(b), and 9005(b) of the Act (42 U.S.C. 6921(b)(3)(B), 
6927(b), and 6995(b)), EPA possesses authority to disclose to any 
authorized representative of the United States any information to which 
this section applies, notwithstanding the fact that the information 
might otherwise be entitled to confidential treatment under this 
subpart. Such authority may be exercised only in accordance with 
paragraph (h)(2) or (h)(3) of this section.
    (2)-(3) The provisions of Sec. 2.301(h) (2) and (3) are incorporated 
by reference as paragraphs (h) (2) and (3), respectively, of this 
section.
    (4) At the time any information is furnished to a contractor, 
subcontractor, or state or local government agency under this paragraph 
(h), the EPA office furnishing the information to the contractor, 
subcontractor, or state or local government agency shall notify the 
contractor, subcontractor, or state or local government agency that the 
information may be entitled to confidential treatment and that any 
knowing and willful disclosure of the information may subject the 
contractor, subcontractor, or state or local government agency and its 
employees to penalties in section 3001(b)(3)(B), 3007(b)(2), or 
9005(b)(1) of the Act (42 U.S.C. 6921(b)(3)(B), 6927(b), or 6995(b)).

[43 FR 40003, Sept. 8, 1978, as amended at 50 FR 51662, Dec. 18, 1985]



Sec. 2.306  Special rules governing certain information obtained under the Toxic Substances Control Act.

    (a) Definitions. For the purposes of this section:
    (1) Act means the Toxic Substances Control Act, 15 U.S.C. 2601 et 
seq.
    (2) Chemical substance has the meaning given it in section 3(2) of 
the Act, 15 U.S.C. 2602(2).

[[Page 61]]

    (3)(i) Health and safety data means the information described in 
paragraphs (a)(3)(i) (A), (B), and (C) of this section with respect to 
any chemical substance or mixture offered for commercial distribution 
(including for test marketing purposes and for use in research and 
development), any chemical substance included on the inventory of 
chemical substances under section 8 of the Act (15 U.S.C. 2607), or any 
chemical substance or mixture for which testing is required under 
section 4 of the Act (15 U.S.C. 2603) or for which notification is 
required under section 5 of the Act (15 U.S.C. 2604).
    (A) Any study of any effect of a chemical substance or mixture on 
health, on the environment, or on both, including underlying data and 
epidemiological studies; studies of occupational exposure to a chemical 
substance or mixture; and toxicological, clinical, and ecological 
studies of a chemical substance or mixture;
    (B) Any test performed under the Act; and
    (C) Any data reported to, or otherwise obtained by, EPA from a study 
described in paragraph (a)(3)(i)(A) of this section or a test described 
in paragraph (a)(3)(i)(B) of this section.
    (ii) Notwithstanding paragraph (a)(3)(i) of this section, no 
information shall be considered to be health and safety data if 
disclosure of the information would--
    (A) In the case of a chemical substance or mixture, disclose 
processes used in the manufacturing or processing the chemical substance 
or mixture or,
    (B) In the case of a mixture, disclose the portion of the mixture 
comprised by any of the chemical substances in the mixture.
    (4) [Reserved]
    (5) Mixture has the meaning given it in section 3(8) of the Act, 15 
U.S.C. 2602(8).
    (6) Proceeding means any rulemaking, adjudication, or licensing 
conducted by EPA under the Act or under regulations which implement the 
Act, except for determinations under this subpart.
    (b) Applicability.  This section applies to all information 
submitted to EPA for the purpose of satisfying some requirement or 
condition of the Act or of regulations which implement the Act, 
including information originally submitted to EPA for some other purpose 
and either relied upon to avoid some requirement or condition of the Act 
or incorporated into a submission in order to satisfy some requirement 
or condition of the Act or of regulations which implement the Act. 
Information will be considered to have been provided under the Act if 
the information could have been obtained under authority of the Act, 
whether the Act was cited as authority or not, and whether the 
information was provided directly to EPA or through some third person.
    (c) Basic rules which apply without change.  Sections 2.201 through 
2.203, 2.206, 2.207, and 2.210 through 2.215 apply without change to 
information to which this section applies.
    (d) Initial action by EPA office.  Section 2.204 applies to 
information to which this section applies, except that the provisions of 
paragraph (e)(3) of this section regarding the time allowed for seeking 
judicial review shall be reflected in any notice furnished to a business 
under Sec. 2.204(d)(2).
    (e) Final confidentiality determination by EPA legal office.  
Section 2.205 applies to information to which this section applies, 
except that--
    (1) Notwithstanding Sec. 2.205(i), the General Counsel (or his 
designee), rather than the regional counsel, shall make the 
determinations and take the actions required by Sec. 2.205;
    (2) In addition to the statement prescribed by the second sentence 
of Sec. 2.205(f)(2), the notice of denial of a business confidentiality 
claim shall state that under section 20(a) of the Act, 15 U.S.C. 2619, 
the business may commence an action in an appropriate Federal district 
court to prevent disclosure.
    (3) The following sentence is substituted for the third sentence of 
Sec. 2.205(f)(2): ``With respect to EPA's implementation of the 
determination, the notice shall state that (subject to Sec. 2.210) EPA 
will make the information available to the public on the thirty-first 
(31st) calendar day after the date of the business' receipt of the 
written notice (or on such later date as is established in lieu thereof 
under paragraph (f)(3) of this section), unless the

[[Page 62]]

EPA legal office has first been notified of the business' commencement 
of an action in a Federal court to obtain judicial review of the 
determination and to obtain preliminary injunctive relief against 
disclosure.''; and
    (4) Notwithstanding Sec. 2.205(g), the 31 calendar day period 
prescribed by Sec. 2.205(f)(2), as modified by paragraph (e)(3) of this 
section, shall not be shortened without the consent of the business.
    (f) [Reserved]
    (g) Substantive criteria for use in confidentiality determinations.  
Section 2.208 applies without change to information to which this 
section applies, except that health and safety data are not eligible for 
confidential treatment. No information to which this section applies is 
voluntarily submitted information.
    (h) Disclosure in special circumstances. Section 2.209 applies to 
information to which this section applies, except that the following two 
additional provisions apply to Sec. 2.209(c):
    (1) The official purpose for which the information is needed must be 
in connection with the agency's duties under any law for protection of 
health or the environment or for specific law enforcement purposes; and
    (2) EPA notifies the other agency that the information was acquired 
under authority of the Act and that any knowing disclosure of the 
information may subject the officers and employees of the other agency 
to the penalties in section 14(d) of the Act (15 U.S.C. 2613(d)).
    (i) Disclosure of information relevant in a proceeding. (1) Under 
section 14(a)(4) of the Act (15 U.S.C. 2613(a)(4)), any information to 
which this section applies may be disclosed by EPA when the information 
is relevant in a proceeding under the Act, notwithstanding the fact that 
the information otherwise might be entitled to confidential treatment 
under this subpart. However, any such disclosure shall be made in a 
manner that preserves the confidentiality of the information to the 
extent practicable without impairing the proceeding. Disclosure of 
information to which this section applies because of its relevance in a 
proceeding shall be made only in accordance with this paragraph (i).
    (2)-(4) The provisions of Sec. 2.301(g) (2), (3), and (4) are 
incorporated by reference as paragraphs (i) (2), (3), and (4), 
respectively, of this section.
    (j) Disclosure of information to contractors and subcontractors. (1) 
Under section 14(a)(2) of the Act (15 U.S.C. 2613(a)(2)), any 
information to which this section applies may be disclosed by EPA to a 
contractor or subcontractor of the United States performing work under 
the Act, notwithstanding the fact that the information otherwise might 
be entitled to confidential treatment under this subpart. Subject to the 
limitations in this paragraph (j), information to which this section 
applies may be disclosed:
    (i) To a contractor or subcontractor with EPA, if the EPA program 
office managing the contract first determines in writing that such 
disclosure is necessary for the satisfactory performance by the 
contractor or subcontractor of the contract or subcontract; or
    (ii) To a contractor or subcontractor with an agency other than EPA, 
if the EPA program office which provides the information to that agency, 
contractor, or subcontractor first determines in writing, in 
consultation with the General Counsel, that such disclosure is necessary 
for the satisfactory performance by the contractor or subcontractor of 
the contract or subcontract.
    (2)-(4) The provisions of Sec. 2.301(h)(2) (ii), (iii), and (iv) are 
incorporated by reference as paragraphs (j) (2), (3), and (4), 
respectively, of this section.
    (5) At the time any information is furnished to a contractor or 
subcontractor under this paragraph (j), the EPA office furnishing the 
information to the contractor or subcontractor shall notify the 
contractor or subcontractor that the information was acquired under 
authority of the Act and that any knowing disclosure of the information 
may subject the contractor or subcontractor and its employees to the 
penalties in section 14(d) of the Act (15 U.S.C. 2613(d)).
    (k) Disclosure of information when necessary to protect health or 
the environment against an unreasonable risk of injury. (1) Under 
section 14(a)(3) of the Act (15 U.S.C 2613(a)(3)), any information to 
which this section applies may

[[Page 63]]

be disclosed by EPA when disclosure is necessary to protect health or 
the environment against an unreasonable risk of injury to health or the 
environment. However, any disclosure shall be made in a manner that 
preserves the confidentiality of the information to the extent not 
inconsistent with protecting health or the environment against the 
unreasonable risk of injury. Disclosure of information to which this 
section applies because of the need to protect health or the environment 
against an unreasonable risk of injury shall be made only in accordance 
with this paragraph (k).
    (2) If any EPA office determines that there is an unreasonable risk 
of injury to health or the environment and that to protect health or the 
environment against the unreasonable risk of injury it is necessary to 
disclose information to which this section applies that otherwise might 
be entitled to confidential treatment under this subpart, the EPA office 
shall notify the General Counsel in writing of the nature of the 
unreasonable risk of injury, the extent of the disclosure proposed, how 
the proposed disclosure will serve to protect health or the environment 
against the unreasonable risk of injury, and the proposed date of 
disclosure. Such notification shall be made as soon as practicable after 
discovery of the unreasonable risk of injury. If the EPA office 
determines that the risk of injury is so imminent that it is 
impracticable to furnish written notification to the General Counsel, 
the EPA office shall notify the General Counsel orally.
    (3) Upon receipt of notification under paragraph (k)(2) of this 
section, the General Counsel shall make a determination in writing 
whether disclosure of information to which this section applies that 
otherwise might be entitled to confidential treatment is necessary to 
protect health or the environment against an unreasonable risk of 
injury. The General Counsel shall also determine the extent of 
disclosure necessary to protect against the unreasonable risk of injury 
as well as when the disclosure must be made to protect against the 
unreasonable risk of injury.
    (4) If the General Counsel determines that disclosure of information 
to which this section applies that otherwise might be entitled to 
confidential treatment is necessary to protect health or the environment 
against an unreasonable risk of injury, the General Counsel shall 
furnish notice to each affected business of the contemplated disclosure 
and of the General Counsel's determination. Such notice shall be made in 
writing by certified mail, return receipt requested, at least 15 days 
before the disclosure is to be made. The notice shall state the date 
upon which disclosure will be made. However, if the General Counsel 
determines that the risk of injury is so imminent that it is 
impracticable to furnish such notice 15 days before the proposed date of 
disclosure, the General Counsel may provide notice by means that will 
provide receipt of the notice by the affected business at least 24 hours 
before the disclosure is to be made. This may be done by telegram, 
telephone, or other reasonably rapid means.

[43 FR 40003, Sept. 8, 1978, as amended at 44 FR 17674, Mar. 23, 1979; 
58 FR 462, Jan. 5, 1993]



Sec. 2.307   Special rules governing certain information obtained under the Federal Insecticide, Fungicide and Rodenticide Act.

    (a) Definitions. For the purposes of this section;
    (1) Act means the Federal Insecticide, Fungicide and Rodenticide 
Act, as amended, 7 U.S.C. 136 et seq., and its predecessor, 7 U.S.C. 135 
et seq.
    (2) Applicant means any person who has submitted to EPA (or to a 
predecessor agency with responsibility for administering the Act) a 
registration statement or application for registration under the Act of 
a pesticide or of an establishment.
    (3) Registrant means any person who has obtained registration under 
the Act of a pesticide or of an establishment.
    (b) Applicability. This section applies to all information submitted 
to EPA by an applicant or registrant for the purpose of satisfying some 
requirement or condition of the Act or of regulations which implement 
the Act, including information originally submitted to EPA for some 
other purpose but incorporated by the applicant or registrant into a 
submission in order to

[[Page 64]]

satisfy some requirement or condition of the Act or of regulations which 
implement the Act. This section does not apply to information supplied 
to EPA by a petitioner in support of a petition for a tolerance under 21 
U.S.C. 346a(d), unless the information is also described by the first 
sentence of this paragraph.
    (c) Basic rules which apply without change. Sections 2.201 through 
2.203, 2.206, 2.207, and 2.210 through 2.215 apply without change to 
information to which this section applies.
    (d) Initial action by EPA office. Section 2.204 applies to 
information to which this section applies, except that the provisions of 
paragraph (e) of this section regarding the time allowed for seeking 
judicial review shall be reflected in any notice furnished to a business 
under Sec. 2.204(d)(2).
    (e) Final confidentiality determination by EPA legal office. Section 
2.205 applies to information to which this section applies, except 
that--
    (1) Notwithstanding Sec. 2.205(i), the General Counsel (or his 
designee), rather than the Regional Counsel, shall make the 
determinations and take the actions required by Sec. 2.205;
    (2) In addition to the statement prescribed by the second sentence 
of Sec. 2.205(f)(2), the notice of denial of a business confidentiality 
claim shall state that under section 10(c) of the Act, 7 U.S.C. 136h(c), 
the business may commence an action in an appropriate Federal district 
court for a declaratory judgment;
    (3) The following sentence is substituted for the third sentence of 
Sec. 2.205(f)(2): ``With respect to EPA's implementation of the 
determination, the notice shall state that (subject to Sec. 2.210) EPA 
will make the information available to the public on the thirty-first 
(31st) calendar day after the date of the business's receipt of the 
written notice (or on such later date as is established in lieu thereof 
under paragraph (f)(3) of this section), unless the EPA legal office has 
first been notified of the business's commencement of an action in a 
Federal court to obtain judicial review of the determination or to 
obtain a declaratory judgment under section 10(c) of the Act and to 
obtain preliminary injunctive relief against disclosure.''; and
    (4) Notwithstanding Sec. 2.205(g), the 31 calendar day period 
prescribed by Sec. 2.205(f)(2), as modified by paragraph (e)(3) of this 
section, shall not be shortened without the consent of the business.
    (f) [Reserved]
    (g) Substantive criteria for use in confidentiality determinations. 
Section 2.208 applies without change to information to which this 
section applies; however, no information to which this section applies 
is voluntarily submitted information.
    (h) Disclosure in special circumstances. (1) Section 2.209 applies 
without change to information to which this section applies. In 
addition, under section 12(a)(2)(D) of the Act, 7 U.S.C. 136j(a)(2)(D), 
EPA possesses authority to disclose any information to which this 
section applies to physicians, pharmacists, and other qualified persons 
needing such information for the performance of their duties, 
notwithstanding the fact that the information might otherwise be 
entitled to confidential treatment under this subpart. Such authority 
under section 12(a)(2)(D) of the Act may be exercised only in accordance 
with paragraph (h)(2) or (h)(3) of this section.
    (2) Information to which this section applies may be disclosed 
(notwithstanding the fact that it might otherwise be entitled to 
confidential treatment under this subpart) to physicians, pharmacists, 
hospitals, veterinarians, law enforcement personnel, or governmental 
agencies with responsibilities for protection of public health, and to 
employees of any such persons or agencies, or to other qualified 
persons, when and to the extent that disclosure is necessary in order to 
treat illness or injury or to prevent imminent harm to persons, 
property, or the environment, in the opinion of the Administrator or his 
designee.
    (3) Information to which this section applies may be disclosed 
(notwithstanding the fact that it otherwise might be entitled to 
confidential treatment under this subpart) to a person under contract to 
EPA to perform work for EPA in connection with the Act or regulations 
which implement the Act, if the EPA program office managing the contract 
first determines

[[Page 65]]

in writing that such disclosure is necessary in order that the 
contractor may carry out the work required by the contract. Any such 
disclosure to a contractor shall be made only in accordance with the 
procedure and requirements of Sec. 2.301(h)(2) (ii) through (iv).
    (4) Information to which this section applies, and which relates to 
formulas of products, may be disclosed at any public hearing or in 
findings of fact issued by the Administrator, to the extent and in the 
manner authorized by the Administrator or his designee.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40005, Sept. 8, 1978]



Sec. 2.308   Special rules governing certain information obtained under the Federal Food, Drug and Cosmetic Act.

    (a) Definitions. For the purposes of this section:
    (1) Act means the Federal Food, Drug and Cosmetic Act, as amended, 
21 U.S.C. 301 et seq.
    (2) Petition means a petition for the issuance of a regulation 
establishing a tolerance for a pesticide chemical or exempting the 
pesticide chemical from the necessity of a tolerance, pursuant to 
section 408(d) of the Act, 21 U.S.C. 346a(d).
    (3) Petitioner means a person who has submitted a petition to EPA 
(or to a predecessor agency).
    (b) Applicability. (1) This section applies only to business 
information submitted to EPA (or to an advisory committee established 
under the Act) by a petitioner, solely in support of a petition which 
has not been acted on by the publication by EPA of a regulation 
establishing a tolerance for a pesticide chemical or exempting the 
pesticide chemical from the necessity of a tolerance, as provided in 
section 408(d) (2) or (3) of the Act, 21 U.S.C. 346a(d) (2) or (3).
    (2) Section 2.307, rather than this section, applies to information 
described by the first sentence of Sec. 2.307(b) (material incorporated 
into submissions in order to satisfy the requirements of the Federal 
Insecticide, Fungicide and Rodenticide Act, as amended), even though 
such information was originally submitted by a petitioner in support of 
a petition.
    (3) This section does not apply to information gathered by EPA under 
a proceeding initiated by EPA to establish a tolerance under section 
408(e) of the Act, 21 U.S.C. 346a(e).
    (c) Basic rules which apply without change. Sections 2.201, 2.202, 
2.206, 2.207, and 2.210 through 2.215 apply without change to 
information to which this section applies.
    (d) Effect of submission of information without claim. Section 2.203 
(a) and (b) apply without change to information to which this section 
applies. Section 2.203(c), however, does not apply to information to 
which this section applies. A petitioner's failure to assert a claim 
when initially submitting a petition shall not constitute a waiver of 
any claim the petitioner may have.
    (e) Initial action by EPA office. Section 2.204 applies to 
information to which this section applies, except that--
    (1) Unless the EPA office has on file a written waiver of a 
petitioner's claim, a petitioner shall be regarded as an affected 
business, a petition shall be treated as if it were covered by a 
business confidentiality claim, and an EPA office acting under 
Sec. 2.204(d) shall determine that the information in the petition is or 
may be entitled to confidential treatment and shall take action in 
accordance with Sec. 2.204(d)(1);
    (2) In addition to other required provisions of any notice furnished 
to a petitioner under Sec. 2.204(e), such notice shall state that--
    (i) Section 408(f) of the Act, 21 U.S.C. 346a(f), affords absolute 
confidentiality to information to which this section applies, but after 
publication by EPA of a regulation establishing a tolerance (or 
exempting the pesticide chemical from the necessity of a tolerance) 
neither the Act nor this section affords any protection to the 
information;
    (ii) Information submitted in support of a petition which is also 
incorporated into a submission in order to satisfy a requirement or 
condition of the Federal Insecticide, Fungicide and Rodenticide Act, as 
amended, 7 U.S.C. 136 et seq., is regarded by EPA as being governed, 
with respect to business confidentiality, by Sec. 2.307 rather than by 
this section;

[[Page 66]]

    (iii) Although it appears that this section may apply to the 
information at this time, EPA is presently engaged in determining 
whether for any reason the information is entitled to confidential 
treatment or will be entitled to such treatment if and when this section 
no longer applies to the information; and
    (iv) Information determined by EPA to be covered by this section 
will not be disclosed for as long as this section continues to apply, 
but will be made available to the public thereafter (subject to 
Sec. 2.210) unless the business furnishes timely comments in response to 
the notice.
    (f) Final confidentiality determination by EPA legal office. Section 
2.205 applies to information to which this section applies, except 
that--
    (1) Notwithstanding Sec. 2.205(i), the General Counsel or his 
designee, rather than the Regional counsel, shall in all cases make the 
determinations and take the actions required by Sec. 2.205;
    (2) In addition to the circumstances mentioned in Sec. 2.205(f)(1), 
notice in the form prescribed by Sec. 2.205(f)(2) shall be furnished to 
each affected business whenever information is found to be entitled to 
confidential treatment under section 408(f) of the Act but not otherwise 
entitled to confidential treatment. With respect to such cases, the 
following sentences shall be substituted for the third sentence of 
Sec. 2.205(f)(2): ``With respect to EPA's implementation of the 
determination, the notice shall state that (subject to Sec. 2.210) EPA 
will make the information available to the public on the thirty-first 
(31st) calendar day after the business's receipt of the written notice 
(or on such later date as is established in lieu thereof under paragraph 
(f)(3) of this section), unless the EPA legal office has first been 
notified of the business's commencement of an action in a Federal court 
to obtain judicial review of the determination and to obtain preliminary 
injunctive relief against disclosure; provided, that the information 
will not be made available to the public for so long as it is entitled 
to confidential treatment under section 408(f) of the Federal Food, Drug 
and Cosmetic Act, 21 U.S.C. 346a(f).''; and
    (3) Notwithstanding Sec. 2.205(g), the 31 calendar day period 
prescribed by Sec. 2.205(f)(2), as modified by paragraph (f)(2) of this 
section, shall not be shortened without the consent of the business.
    (g) [Reserved]
    (h) Substantive criteria for use in confidentiality determinations. 
Section 2.208 does not apply to information to which this section 
applies. Such information shall be determined to be entitled to 
confidential treatment for so long as this section continues to apply to 
it.
    (i) Disclosure in special circumstances. (1) Section 2.209 applies 
to information to which this section applies. In addition, under Section 
408(f) of the Act, 21 U.S.C. 346a(f), EPA is authorized to disclose the 
information to other persons. Such authority under section 408(f) of the 
Act may be exercised only in accordance with paragraph (i)(2) or (i)(3) 
of this section.
    (2) Information to which this section applies may be disclosed 
(notwithstanding the fact that it otherwise might be entitled to 
confidential treatment under this subpart) to a person under contract to 
EPA to perform work for EPA in connection with the Act, with the Federal 
Insecticide, Fungicide, and Rodenticide Act, as amended, or regulations 
which implement either such Act, if the EPA program office managing the 
contract first determines in writing that such disclosure is necessary 
in order that the contractor may carry out the work required by the 
contract. Any such disclosure to a contractor shall be made only in 
accordance with the procedures and requirements of Sec. 2.301(h)(2) (ii) 
through (iv).
    (3) Information to which this section applies may be disclosed by 
EPA to an advisory committee in accordance with section 408(d) of the 
Act, 21 U.S.C. 346a(d).

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40005, Sept. 8, 1978]



Sec. 2.309   Special rules governing certain information obtained under the Marine Protection, Research and Sanctuaries Act of 1972.

    (a) Definitions. For the purposes of this section:

[[Page 67]]

    (1) Act means the Marine Protection, Research and Sanctuaries Act of 
1972, 33 U.S.C. 1401 et seq.
    (2) Permit means any permit applied for or granted under the Act.
    (3) Application means an application for a permit.
    (b) Applicability. This section applies to all information provided 
to or obtained by EPA as a part of any application or in connection with 
any permit.
    (c) Basic rules which apply without change. Sections 2.201 through 
2.207 and 2.209 through 2.215 apply without change to information to 
which this section applies.
    (d) Substantive criteria for use in confidentiality determinations. 
Section 2.208 does not apply to information to which this section 
applies. Pursuant to section 104(f) of the Act, 33 U.S.C. 1414(f), no 
information to which this section applies is eligible for confidential 
treatment.

[41 FR 36902, Sept. 1, 1976, as amended at 43 FR 40005, Sept. 8, 1978]



Sec. 2.310  Special rules governing certain information obtained under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as 
          amended.

    (a) Definitions. For purposes of this section:
    (1) Act means the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, as amended, including 
amendments made by the Superfund Amendments and Reauthorization Act of 
1986, 42 U.S.C. 9601, et seq.
    (2) Person has the meaning given it in section 101(21) of the Act, 
42 U.S.C. 9601(21).
    (3) Facility has the meaning given it in section 101(9) of the Act, 
42 U.S.C. 9601(9).
    (4) Hazardous substance has the meaning given it in section 101(14) 
of the Act, 42 U.S.C. 9601(14).
    (5) Release has the meaning given it in section 101(22) of the Act, 
42 U.S.C. 9601(22).
    (6) Proceeding means any rulemaking or adjudication conducted by EPA 
under the Act or under regulations which implement the Act (including 
the issuance of administrative orders under section 106 of the Act and 
cost recovery pre-litigation settlement negotiations under sections 107 
or 122 of the Act), any cost recovery litigation under section 107 of 
the Act, or any administrative determination made under section 104 of 
the Act, but not including determinations under this subpart.
    (b) Applicability. This section applies only to information provided 
to or obtained by EPA under section 104 of the Act, 42 U.S.C. 9604, by 
or from any person who stores, treats, or disposes of hazardous wastes; 
or where necessary to ascertain facts not available at the facility 
where such hazardous substances are located, by or from any person who 
generates, transports, or otherwise handles or has handled hazardous 
substances, or by or from any person who performs or supports removal or 
remedial actions pursuant to section 104(a) of the Act. Information will 
be considered to have been provided or obtained under section 104 of the 
Act if it was provided in response to a request from EPA or a 
representative of EPA made for any of the purposes stated in section 
104, if it was provided pursuant to the terms of a contract, grant or 
other agreement to perform work pursuant to section 104, or if its 
submission could have been required under section 104, regardless of 
whether section 104 was cited as authority for any request for the 
information or whether the information was provided directly to EPA or 
through some third person.
    (c) Basic rules which apply without change. Sections 2.201 through 
2.207 and Sec. Sec. 2.209 through 2.215 apply without change to 
information to which this section applies.
    (d) [Reserved]
    (e) Substantive criteria for use in confidentiality determinations. 
Section 2.208 applies without change to information to which this 
section applies; however, no information to which this section applies 
is voluntarily submitted information.
    (f) [Reserved]
    (g)(1) Under section 104(e)(7)(A) of the Act (42 U.S.C. 
9604(e)(7)(A)) any information to which this section applies may be 
disclosed by EPA because of the relevance of the information in a

[[Page 68]]

proceeding under the Act, notwithstanding the fact that the information 
otherwise might be entitled to confidential treatment under this 
subpart. Disclosure of information to which this section applies because 
of its relevance in a proceeding shall be made only in accordance with 
this paragraph (g).
    (2) The provisions of Sec. 2.301(g)(2) are to be used as paragraph 
(g)(2) of this section.
    (3) In connection with any proceeding involving a decision by a 
presiding officer after an evidentiary or adjudicatory hearing, except 
with respect to litigation conducted by a Federal court, information to 
which this section applies which may be entitled to confidential 
treatment may be made available to the public, or to one or more parties 
of record to the proceeding, upon EPA's initiative, under this paragraph 
(g)(3). An EPA office proposing disclosure of information under this 
paragraph (g)(3) shall so notify the presiding officer in writing. Upon 
receipt of such a notification, the presiding officer shall notify each 
affected business that disclosure under this paragraph (g)(3) has been 
proposed, and shall afford each such business a period for comment found 
by the presiding officer to be reasonable under the circumstances. 
Information may be disclosed under this paragraph (g)(3) only if, after 
consideration of any timely comments submitted by the business, the EPA 
office determines in writing that, for reasons directly associated with 
the conduct of the proceeding, the contemplated disclosure would serve 
the public interest, and the presiding officer determines in writing 
that the information is relevant to a matter in controversy in the 
proceeding. The presiding officer may condition disclosure of the 
information to a party of record on the making of such protective 
arrangements and commitments as he finds to be warranted. Disclosure to 
one or more parties of record, under protective arrangements or 
commitments, shall not, of itself, affect the eligibility of information 
for confidential treatment under the other provisions of this subpart. 
Any affected business shall be given at least 5 days notice by the 
presiding officer prior to making the information available to the 
public or to one or more of the parties of record to the proceeding.
    (4) In connection with any proceeding involving a decision by a 
presiding officer after an evidentiary or adjudicatory hearing, except 
with respect to litigation conducted by a Federal court, information to 
which this section applies which may be entitled to confidential 
treatment may be made available to one or more parties of record to the 
proceeding, upon request of a party, under this paragraph (g)(4). A 
party of record seeking disclosure of information shall direct his 
request to the presiding officer. Upon receipt of such a request, the 
presiding officer shall notify each affected business that disclosure 
under this paragraph (g)(4) has been requested, and shall afford each 
such business a period for comment found by the presiding officer to be 
reasonable under the circumstances. Information may be disclosed to a 
party of record under this paragraph (g)(4) only if, after consideration 
of any timely comments submitted by the business, the presiding officer 
determines in writing that:
    (i) The party of record has satisfactorily shown that with respect 
to a significant matter which is in controversy in the proceeding, the 
party's ability to participate effectively in the proceeding will be 
significantly impaired unless the information is disclosed to him; and
    (ii) Any harm to an affected business that would result from the 
disclosure is likely to be outweighed by the benefit to the proceeding 
and the public interest that would result from the disclosure.

The presiding officer may condition disclosure of the information to a 
party of record on the making of such protective arrangements and 
commitments as he finds to be warranted. Disclosure to one or more 
parties of record, under protective arrangements or commitments, shall 
not, of itself, affect the eligibility of information for confidential 
treatment under the other provisions of this subpart. Any affected 
business shall be given at least 5 days notice by the presiding officer 
prior to making the information available to one or more of the parties 
of record to the proceeding.

[[Page 69]]

    (5) In connection with cost recovery pre-litigation settlement 
negotiations under sections 107 or 122 of the Act (42 U.S.C. 9607, 
9622), any information to which this section applies that may be 
entitled to confidential treatment may be made available to potentially 
responsible parties pursuant to a contractual agreement to protect the 
information.
    (6) In connection with any cost recovery proceeding under section 
107 of the Act involving a decision by a presiding officer after an 
evidentiary or adjudicatory hearing, any information to which this 
section applies that may be entitled to confidential treatment may be 
made available to one or more parties of record to the proceeding, upon 
EPA's initiative, under this paragraph (g)(6). Such disclosure must be 
made pursuant to a stipulation and protective order signed by all 
parties to whom disclosure is made and by the presiding officer.
    (h) Disclosure to authorized representatives. (1) Under section 
104(e)(7) of the Act (42 U.S.C. 9604(e)(7)), EPA possesses authority to 
disclose to any authorized representative of the Untied States any 
information to which this section applies, notwithstanding the fact that 
the information might otherwise be entitled to confidential treatment 
under this subpart. Such authority may be exercised only in accordance 
with paragraph (h)(2) or (h)(3) of this section.
    (2) The provisions of Sec. 2.301(h)(2) are to be used as paragraph 
(h)(2) of this section.
    (3) The provisions of Sec. 2.301(h)(3) are to be used as paragraph 
(h)(3) of this section.
    (4) At the time any information is furnished to a contractor, 
subcontractor, or state or local government under this paragraph (h), 
the EPA office furnishing the information to the contractor, 
subcontractor, or state or local government agency shall notify the 
contractor, subcontractor, or state or local government agency that the 
information may be entitled to confidential treatment and that any 
knowing and willful disclosure of the information may subject the 
contractor, subcontractor, or state or local government agency and its 
employees to penalties in section 104(e)(7)(B) of the Act (42 U.S.C. 
9604(e)(7)(B)).

[50 FR 51663, Dec. 18, 1985, as amended at 58 FR 462, Jan. 5, 1993]



Sec. 2.311  Special rules governing certain information obtained under the Motor Vehicle Information and Cost Savings Act.

    (a) Definitions. For the purposes of this section:
    (1) Act means the Motor Vehicle Information and Cost Savings Act, as 
amended, 15 U.S.C. 1901 et seq.
    (2) Average fuel economy has the meaning given it in section 501(4) 
of the Act, 15 U.S.C. 2001(4).
    (3) Fuel economy has the meaning given it in section 501(6) of the 
Act, 15 U.S.C. 2001(6).
    (4) Fuel economy data means any measurement or calculation of fuel 
economy for any model type and average fuel economy of a manufacturer 
under section 503(d) of the Act, 15 U.S.C. 2003(d).
    (5) Manufacturer has the meaning given it in section 501(9) of the 
Act, 15 U.S.C. 2001(9).
    (6) Model type has the meaning given it in section 501(11) of the 
Act, 15 U.S.C. 2001(11).
    (b) Applicability. This section applies only to information provided 
to or obtained by EPA under Title V, Part A of the Act, 15 U.S.C. 2001 
through 2012. Information will be considered to have been provided or 
obtained under Title V, Part A of the Act if it was provided in response 
to a request from EPA made for any purpose stated in Title V, Part A, or 
if its submission could have been required under Title V Part A, 
regardless of whether Title V Part A was cited as the authority for any 
request for information or whether the information was provided directly 
to EPA or through some third person.
    (c) Basic rules which apply without change. Sections 2.201 through 
2.207 and Sec. Sec. 2.209 through 2.215 apply without change to 
information to which this section applies.
    (d) [Reserved]
    (e) Substantive criteria for use in confidentiality determinations. 
Section 2.208 applies without change to information to which this 
section applies, except that information this is fuel economy

[[Page 70]]

data is not eligible for confidential treatment. No information to which 
this section applies is voluntarily submitted information.
    (f) [Reserved]
    (g) Disclosure of information relevant to a proceeding. (1) Under 
section 505(d)(1) of the Act, any information to which this section 
applies may be released by EPA because of the relevance of the 
information to a proceeding under Title V, Part A of the Act, 
notwithstanding the fact that the information otherwise might be 
entitled to confidential treatment under this subpart. Release of 
information to which this section applies because of its relevance to a 
proceeding shall be made only in accordance with this paragraph (g).
    (2) The provisions of Sec. 2.301(g)(2) are to be used as paragraph 
(g)(2) of this section.
    (3) The provisions of Sec. 2.301(g)(3) are to be used as paragraph 
(g)(3) of this section.
    (4) The provisions of Sec. 2.301(g)(4) are to be used as paragraph 
(g)(3) of this section.

[50 FR 51663, Dec. 18, 1985]



 Subpart C--Testimony by Employees and Production of Documents in Civil 
        Legal Proceedings Where the United States Is Not a Party

    Authority: 5 U.S.C. 301; Reorganization Plan No. 3 of 1970, 5 U.S.C. 
App.; 33 U.S.C. 361(a); 42 U.S.C. 300j-9; 42 U.S.C. 6911a, 42 U.S.C. 
7601(a).

    Source: 50 FR 32387, Aug. 9, 1985, unless otherwise noted.



Sec. 2.401  Scope and purpose.

    This subpart sets forth procedures to be followed when an EPA 
employee is requested or subpoenaed to provide testimony concerning 
information acquired in the course of performing official duties or 
because of the employee's official status. (In such cases, employees 
must state for the record that their testimony does not necessarily 
represent the official position of EPA. If they are called to state the 
official position of EPA, they should ascertain that position before 
appearing.) These procedures also apply to subpoenas duces tecum for any 
document in the possession of EPA and to requests for certification of 
copies of documents.
    (a) These procedures apply to:
    (1) State court proceedings (including grand jury proceedings);
    (2) Federal civil proceedings, except where the United States, EPA 
or another Federal agency is a party; and
    (3) State and local legislative and administrative proceedings.
    (b) These procedures do not apply:
    (1) To matters which are not related to EPA;
    (2) To Congressional requests or subpoenas for testimony or 
documents;
    (3) Where employees provide expert witness services as approved 
outside activities in accordance with 40 CFR part 3, subpart E (in such 
cases, employees must state for the record that the testimony represents 
their own views and does not necessarily represent the official position 
of EPA);
    (4) Where employees voluntarily testify as private citizens with 
respect to environmental matters (in such cases, employees must state 
for the record that the testimony represents their own views and does 
not necessarily represent the official position of EPA).
    (c) The purpose of this subpart is to ensure that employees' 
official time is used only for official purposes, to maintain the 
impartiality of EPA among private litigants, to ensure that public funds 
are not used for private purposes and to establish procedures for 
approving testimony or production of documents when clearly in the 
interests of EPA.



Sec. 2.402  Policy on presentation of testimony and production of documents.

    (a) With the approval of the cognizant Assistant Administrator, 
Office Director, Staff Office Director or Regional Administrator or his 
designee, EPA employees (as defined in 40 CFR 3.102 (a) and (b)) may 
testify at the request of another Federal agency, or, where it is in the 
interests of EPA, at the request of a State or local government or State 
legislative committee.
    (b) Except as permitted by paragraph (a) of this section, no EPA 
employee may provide testimony or produce documents in any proceeding to 
which this subpart applies concerning information acquired in the course 
of performing

[[Page 71]]

official duties or because of the employee's official relationship with 
EPA, unless authorized by the General Counsel or his designee under 
Sec. Sec. 2.403 through 2.406.



Sec. 2.403  Procedures when voluntary testimony is requested.

    A request for testimony by an EPA employee under Sec. 2.402(b) must 
be in writing and must state the nature of the requested testimony and 
the reasons why the testimony would be in the interests of EPA. Such 
requests are immediately sent to the General Counsel or his designee 
(or, in the case of employees in the Office of Inspector General, the 
Inspector General or his designee) with the recommendations of the 
employee's supervisors. The General Counsel or his designee, in 
consultation with the appropriate Assistant Administrator, Regional 
Administrator, or Staff Office Director (or, in the case of employees in 
the Office of Inspector General, the Inspector General or his designee), 
determines whether compliance with the request would clearly be in the 
interests of EPA and responds as soon as practicable.



Sec. 2.404  Procedures when an employee is subpoenaed.

    (a) Copies of subpoenas must immediately be sent to the General 
Counsel or his designee with the recommendations of the employee's 
supervisors. The General Counsel or his designee, in consultation with 
the appropriate Assistant Administrator, Regional Administrator or Staff 
Office Director, determines whether compliance with the subpoena would 
clearly be in the interests of EPA and responds as soon as practicable.
    (b) If the General Counsel or his designee denies approval to comply 
with the subpoena, or if he has not acted by the return date, the 
employee must appear at the stated time and place (unless advised by the 
General Counsel or his designee that the subpoena was not validly issued 
or served or that the subpoena has been withdrawn), produce a copy of 
these regulations and respectfully refuse to provide any testimony or 
produce any documents. United States ex rel. Touhy v. Ragen, 340 U.S. 
462 (1951).
    (c) Where employees in the Office of Inspector General are 
subpoenaed, the Inspector General or his designee makes the 
determination under paragraphs (a) and (b) of this section in 
consultation with the General Counsel.
    (d) The General Counsel will request the assistance of the 
Department of Justice or a U.S. Attorney where necessary to represent 
the interests of the Agency and the employee.



Sec. 2.405  Subpoenas duces tecum.

    Subpoenas duces tecum for documents or other materials are treated 
the same as subpoenas for testimony. Unless the General Counsel or his 
designee, in consultation with the appropriate Assistant Administrator, 
Regional Administrator or Staff Office Director (or, as to employees in 
the Office of Inspector General, the Inspector General) determines that 
compliance with the subpoena is clearly in the interests of EPA, the 
employee must appear at the stated time and place (unless advised by the 
General Counsel or his designee that the subpoena was not validly issued 
or served or that the subpoena has been withdrawn) and respectfully 
refuse to produce the subpoenaed materials. However, where a subpoena 
duces tecum is essentially a written request for documents, the 
requested documents will be provided or denied in accordance with 
subparts A and B of this part where approval to respond to the subpoena 
has not been granted.



Sec. 2.406  Requests for authenticated copies of EPA documents.

    Requests for authenticated copies of EPA documents for purposes of 
admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules of 
Civil Procedure will be granted for documents which would otherwise be 
released pursuant to subpart A. For purposes of Rule 44 the person 
having legal custody of the record is the cognizant Assistant 
Administrator, Regional Administrator, Staff Office Director or Office 
Director or his designee. The advice of the Office of General Counsel 
should be obtained concerning the proper form of authentication.

[[Page 72]]



PART 3--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




                      Subpart A--General Provisions

Sec.
3.100  Purpose.
3.101  Coverage.
3.102  Definitions.
3.103  Ethical standards of conduct for employees.
3.104  Other general standards of conduct.
3.105  Post-employment restrictions affecting former EPA attorneys.
3.106  Statutes relating to employee conduct.

Appendix A to Subpart A--Conflict of Interest Statutes and Examples
Appendix B to Subpart A--Other provisions
Appendix C to Subpart A--Procedures for Administrative Enforcement of 
          Post-Employment Restrictions

                    Subpart B--Advice and Enforcement

3.200  Purpose.
3.201  Designation.
3.202  Reporting, investigating and enforcing.

             Subpart C--Financial Interests and Investments

3.300  Prohibitions against acts affecting a personal financial 
          interest.
3.301  Waiver.
3.302  Financial Disclosure Reports and Confidential Statements of 
          Employment and Financial Interest.
3.303  Special requirements under the Clean Air Act.
3.304  Special requirements under the Toxic Substances Control Act.
3.305  Special requirements under the Surface Mining Control and 
          Reclamation Act.

Appendix A to Subpart C--Procedures for Filing Confidential Statements 
          of Employment and Financial Interest
Appendix B to Subpart C--Employees Subject to Special Requirements Under 
          the Clean Air Act

             Subpart D--Gifts, Gratuities, or Entertainment

3.400  Policy.

                      Subpart E--Outside Employment

3.500  Definitions.
3.501  Policy.
3.502  Guidelines and limitations.
3.503  Distinction between official and outside activities.
3.504  Compensation, honorariums, travel expenses.
3.505  Special conditions which apply to teaching, lecturing and 
          speechmaking.
3.506  Special conditions applicable to outside writing and editing 
          activities.
3.507  Special conditions applicable to publishing.
3.508  Administrative approval.

Appendix A to Subpart E--Procedures for Permission to Engage in Outside 
          Employment or Other Outside Activity

    Subpart F--Standards of Conduct for Special Government Employees

3.600  Applicability.
3.601  Standards of conduct.
3.602  Statements of employment and financial interest.
3.603  Review, enforcement, reporting and investigation.
3.604  Application of conflict-of-interest statutes.
3.605  Other statutes.

    Authority: E.O. 11222, 30 FR 6460; 3 CFR 1964-1965 Comp., p. 306; 5 
CFR parts 734, 735 and 737.

    Source: 49 FR 7530, Feb. 29, 1984, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 3.100  Purpose.

    These regulations set forth the ethical standards which apply to all 
Environmental Protection Agency (EPA) employees. They are intended to 
supplement regulations of the Office of Government Ethics at 5 CFR parts 
734, 735 and 737.



Sec. 3.101  Coverage.

    (a) Subparts A, B, C, D and E apply to all regular EPA employees, 
including Public Health Service commissioned officers assigned to EPA, 
employees detailed to EPA from other federal agencies and employees 
detailed or assigned to EPA under the Intergovernmental Personnel Act.
    (b) Subpart F applies only to special Government employees.



Sec. 3.102  Definitions.

    (a) Employee means any officer or employee of the Environmental 
Protection Agency, Public Health Service commissioned officers assigned 
to EPA, employees detailed to EPA from other federal agencies and 
employees

[[Page 73]]

detailed or assigned to EPA under the Intergovernmental Personnel Act. 
The term does not include special Government employees.
    (b) Special Government employee means an officer or employee of the 
Environmental Protection Agency who is retained, designated, appointed 
or employed to perform, with or without compensation, temporary duties 
either on a full-time or intermittent basis, for not to exceed 130 days 
during any period of 365 consecutive days.
    (c) Former employee means a former Environmental Protection Agency 
employee, or a former special Government employee.



Sec. 3.103  Ethical standards of conduct for employees.

    Employees may not use their official positions for private gain or 
act in such a manner that creates the reasonable appearance of doing so.
    Employees therefore must not:
    (a) Engage, directly or indirectly, in any business transaction or 
arrangement, including buying or selling securities or recommending the 
purchase or sale of securities to others, on the basis of information 
derived from their official positions which has not been made available 
to the general public;
    (b) Use information acquired through EPA duties that has not been 
made available to the general public to further their private interests;
    (c) Use their Government positions to coerce, or appear to coerce, 
anyone to provide any financial benefit to themselves or others; or
    (d) Take any action, whether specifically prohibited or not, which 
would result in or create the reasonable appearance of:
    (1) Using public office for private gain;
    (2) Giving preferential treatment to any organization or person;
    (3) Impeding Government efficiency or economy;
    (4) Losing independence or impartiality of action;
    (5) Making a Government decision outside official channels; or
    (6) Adversely affecting public confidence in the integrity of the 
Government or EPA.



Sec. 3.104  Other general standards of conduct.

    (a) Use of Government property. Employees must not use or allow the 
use of, Government-owned or leased property for other than official 
purposes. Employees have a duty to protect and conserve Government 
property, especially equipment, supplies and other property entrusted to 
them.
    (b) Indebtedness. Indebtedness of EPA employees is essentially a 
private matter. EPA generally does not act as a collection agency or 
determine the validity or amount of debts. However, employees are 
expected to honor just financial obligations and Pub. L. 93-647 provides 
for garnishment of employees' wages for nonpayment of alimony or child 
support. In addition, the Debt Collection Act of 1982 at 5 U.S.C. 5514 
authorizes agencies to recover employees' debts to the United States 
through installment deductions from salaries.
    (c) Gambling, betting, and lotteries. Employees must not gamble on 
Government property or while on Government duty. Gambling includes 
operating a gambling device, conducting a lottery or pool, playing a 
game for money or property or selling or purchasing a numbers slip. 
However, employees may participate in federally sponsored fund-raising 
activities under section 3 of Executive Order 10927 of March 18, 1961, 
or in similar officially approved activities.
    (d) General conduct prejudicial to the Government. Employees must 
not engage in criminal, infamous, dishonest, immoral or disgraceful 
conduct, or any other conduct prejudicial to the Government.
    (e) Statutory prohibitions relating to gifts and decorations.
    (1) Employees must not solicit contributions from other employees 
for gifts to official superiors or accept gifts from employees receiving 
less salary than themselves. 5 U.S.C. 7351. However, small voluntary 
gifts on special occasions such as marriage, illness, death or 
retirement are permitted.
    (2) Employees may not accept gifts, presents or decorations from 
foreign governments unless authorized by 5 U.S.C. 7342.

[[Page 74]]

    (3) Subpart D contains further guidance on gifts, gratuities and 
entertainment.



Sec. 3.105  Post-employment restrictions affecting former EPA attorneys.

    This section applies where a jurisdiction in which a former EPA 
employee holds bar membership has adopted Rule 1.11 of the American Bar 
Association's Model Rules of Professional Conduct dated August 1983, in 
particular Rule 1.11(d)(2) which provides that the term matter includes 
any other matter covered by the conflict of interest rules of the 
appropriate government agency. In such cases, the term matter includes 
participation (in the form of drafting, providing advice or making 
recommendations) in the development of EPA regulations. Where a former 
EPA employee participated in the development of an EPA regulation while 
employed by EPA, he or she may not represent or assist in representing 
any party or parties as an attorney in any judicial proceeding to 
contest the validity of the rule. However, this section applies only 
where the complaint was not filed before the effective date of this 
regulation or the date when Rule 1.11 became effective in the 
jurisdiction, whichever occurs later.

[50 FR 39623, Sept. 27, 1985]



Sec. 3.106  Statutes relating to employee conduct.

    Appendix A of this subpart sets out the conflict of interest 
statutes, together with examples of their application, and appendix B 
cites other statutory provisions which relate to employees' conduct.

[49 FR 7530, Feb. 29, 1984. Redesignated at 50 FR 39623, Sept. 27, 1985]

   Appendix A to Subpart A--Conflict of Interest Statutes and Examples

                              18 U.S.C. 203

    Compensation to Members of Congress, officers, and others in matters 
affecting the Government.
    (a) Whoever, otherwise than as provided by law for the proper 
discharge of official duties, directly or indirectly receives or agrees 
to receive, or asks, demands, solicits, or seeks, any compensation for 
services rendered or to be rendered either by himself or another--
    (1) At a time when he is a Member of Congress, Member of Congress-
elect, Resident Commissioner, or Resident Commissioner-elect; or
    (2) At a time when he is an officer or employee of the United States 
in the executive, legislative, or judicial branch of the Government, or 
in any agency of the United States including the District of Columbia--
in relation to any proceeding, application, request for a ruling or 
other determination, contract, claim, controversy, charge, accusation, 
arrest, or other particular matter in which the United States is a party 
or has a direct and substantial interest before any department, agency, 
court-martial, officer, or any civil, military, or naval commission, or
    (b) Whoever, knowingly, otherwise than as provided by law for the 
proper discharge of official duties, directly or indirectly gives, 
promises, or offers any compensation for any such services rendered or 
to be rendered at a time when the person to whom the compensation is 
given, promised, or offered, is or was such a Member, Commissioner, 
officer, or employee--
    Shall be fined not more than $10,000, or imprisoned for not more 
than 2 years, or both; and shall be incapable of holding any office of 
honor, trust, or profit under the United States.
    (c) A special Government employee shall be subject to subsection (a) 
only in relation to a particular matter involving a specific party or 
parties (1) in which he has at any time participated personally and 
substantially as a Government employee or as a special Government 
employee through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation, or otherwise, or (2) which is 
pending in the department or agency of the Government in which he is 
serving: Provided, that clause (2) shall not apply in the case of a 
special Government employee who has served in such department or agency 
no more than 60 days during the immediately preceding period of 365 
consecutive days.

                               Discussion

    This provision prohibits employees from accepting fees for 
representing any outside party in any administrative proceeding before a 
Federal agency and from sharing in fees earned by others for such 
activities. For example, an attorney could not share in the partnership 
income of a law firm to the extent such income is attributable to 
representational activities before Federal agencies. It does not 
prohibit receipt of compensation for other than actual appearances as an 
agent or attorney for outside parties; a fee for actual work, such as 
drafting a brief, is not prohibited. (But see the appearance standards 
of Sec. Sec. 3.103 and 3.503). The prohibition covers agreements to 
receive prohibited fees

[[Page 75]]

and requests for such fees. Moreover, the restriction applies even after 
the employee leaves the Government in that a former employee may not 
share in fees attributable to representational work before 
administrative agencies which was performed while the former employee 
was with the Government.

                              18 U.S.C. 205

    Activities of officers and employees in claims against and other 
matters affecting the Government.
    Whoever, being an officer or employee of the United States in the 
executive, legislative, or judicial branch of the Government or in any 
agency of the United States, including the District of Columbia, 
otherwise than in the proper discharge of his official duties--
    (1) Acts as agent or attorney for prosecuting any claim against the 
United States, or receives any gratuity, or any share of or interest in 
any such claim in consideration of assistance in the prosecution of such 
claim, or
    (2) Acts as agent or attorney for anyone before any department, 
agency, court, court-martial, officer, or any civil military, or naval 
commission in connection with any proceeding, application, request for a 
ruling or other determination, contract, claim, controversy, change, 
accusation, arrest, or other particular matter in which the United 
States is a party or has a direct and substantial interest--
    Shall be fined not more than $10,000, or imprisoned for not more 
than 2 years, or both.
    A special Government employee shall be subject to the preceding 
paragraphs only in relation to a particular matter involving a specific 
party or parties (1) in which he has at any time participated personally 
and substantially as a Government employee or as a special Government 
employee through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation or otherwise, or (2) which is pending 
in the department or agency of the Government in which he is serving: 
Provided, That clause (2) shall not apply in the case of a special 
Government employee who has served in such department or agency no more 
than 60 days during the immediately preceding period of 365 consecutive 
days.
    Nothing herein prevents an officer or employee, if not inconsistent 
with the faithful performance of his duties, from acting without 
compensation as agent or attorney for any person who is the subject of 
disciplinary, loyalty, or other personnel administration proceedings in 
connection with those proceedings.
    Nothing herein or in section 203 prevents an officer or employee, 
including a special Government employee, from acting, with or without 
compensation, as agent or attorney for his parents, spouse, child, or 
any person for whom, or for any estate for which, he is serving as 
guardian, executor, administrator, trustee, or other personal fiduciary 
except in those matters in which he has participated personally and 
substantially as a Government employee, through decision, approval, 
disapproval, recommendation, the rendering of advice, investigation, or 
otherwise, or which are the subject of his official responsibility 
provided that the Government official responsible for appointment to his 
position approves.
    Nothing herein or in section 203 prevents a special Government 
employee from acting as agent or attorney for another person in the 
performance of work under a grant by, or a contract with or for the 
benefit of, the United States provided that the head of the department 
or agency concerned with the contract shall certify in writing that the 
national interest so requires.
    Such certification shall be published in the Federal Register.
    Nothing herein prevents an officer or employee from giving testimony 
under oath or from making statements required to be made under penalty 
for perjury or contempt.

                               Discussion

    This provision generally forbids employees to act as agent or 
attorney (that is, communicate with intent to influence) on behalf of 
outside parties before Federal agencies or courts in matters in which 
the United States is a party or has a direct and substantial interest. 
The prohibition applies to both paid and unpaid representation.

                                Examples

    1. An EPA employee has received permission to work as a consultant 
to a firm which has been awarded a contract by the Department of 
Defense. A controversy arises concerning the scope of work of the 
contract, and the firm asks the EPA employee to discuss the matter with 
the contracting officer to seek additional compensation for an alleged 
change in the scope of work.
    Answer: The employee may not do so, since he would be acting as 
agent for an outside party in a claim or controversy to which the 
Government is a party. (Moreover, under the appearance standards of 
Sec. 3.502(c) the employee should not assist the firm in preparing its 
claim.)
    2. An employee is an officer in an environmental organization and 
has been asked to present testimony on behalf of the organization at an 
EPA rulemaking proceeding.
    Answer: Although the statute does not apply to testimony under oath, 
the activity nonetheless violates the appearance standards of 
Sec. Sec. 3.103 and 3.503. However, it would be proper for the employee 
to appear as a concerned individual rather than as a representative of 
an outside group.

[[Page 76]]

    3. Several years ago, an employee received approval for outside 
employment as a consultant to an architect/engineer firm which is now 
competing for a subagreement under an EPA construction grant. The firm 
has asked the employee to present its proposal to EPA's grantee.
    Answer: The statutory restriction does not apply, since the 
representational activity would not be before EPA or any other Federal 
agency. Such activity would nonetheless violate the appearance standards 
of Sec. Sec. 3.103 and 3.502. Moreover, under the appearance standards, 
Deputy Ethics Officials would be justified in refusing to approve 
outside employment involving work on projects funded by EPA.

                               Exceptions

    1. With the approval of the appropriate Deputy Ethics Official, an 
employee may act as agent or attorney before a Federal court or agency, 
for his or her parents, spouse, child or any person for whom, or for any 
estate for which, the employee is serving as guardian, executor, 
administrator, trustee or other personal fiduciary except where the 
employee has participated in the same matter on behalf of the Government 
or where the matter is the subject of the employee's official 
responsibility.
    2. Nothing in the statute prevents an employee from giving testimony 
under oath or from making statements required to be made under penalty 
for perjury or contempt. However, this exception does not apply to 
acting as an expert witness for an outside party in a Government matter.
    3. Employees may act without compensation as agent or attorney for 
anyone who is the subject of disciplinary, loyalty or other personnel 
proceedings, provided the employee's official duties do not conflict 
with such representation. Employees are encouraged to seek the advice of 
the Designated Agency Ethics Official or Deputy Ethics Official before 
engaging in such representation.
    4. The restriction does not apply to special Government employees to 
the same extent as to employees. Restrictions applicable to such 
employees are discussed in Sec. 3.604.

                              18 U.S.C. 207

    Disqualification of former officers and employees; disqualification 
of partners of current officers and employees.
    (a) Whoever, having been an officer or employee of the executive 
branch of the United States Government, of any independent agency of the 
United States, or of the District of Columbia, including a special 
Government employee, after his employment has ceased, knowingly acts as 
agent or attorney for, or otherwise represents, any other person (except 
the United States), in any formal or informal appearance before, or, 
with the intent to influence, makes any oral or written communication on 
behalf of any other person (except the United States) to--
    (1) Any department, agency, court, court-martial, or any civil, 
military, or naval commission of the United States or the District of 
Columbia, or any officer or employee thereof, and
    (2) In connection with any judicial or other preceeding, 
application, request for a ruling or other determination, contract, 
claim, controversy, investigation, charge, accusation, arrest, or other 
particular matter involving a specific party or parties in which the 
United States or the District of Columbia is a party or has a direct and 
substantial interest, and
    (3) In which he participated personally and substantially as an 
officer or employee through decision, approval, disapproval, 
recommendation, the rendering of advice, investigation or otherwise, 
while so employed; or
    (b) Whoever, (i) having been so employed, within two years after his 
employment has ceased, knowingly acts as agent or attorney for, or 
otherwise represents, any other person (except the United States), in 
any formal or informal appearance before, or, with the intent to 
influence, makes any oral or written communication on behalf of any 
other person (except the United States) to, or (ii) having been so 
employed as specified in subsection (d) of this section, within two 
years after his employment has ceased, knowingly represents or aids, 
counsels, advises, consults, or assists in representing any other person 
(except the United States) by personal presence at any formal or 
informal appearance before--
    (1) Any department, agency, court, court-martial, or any civil, 
military or naval commission of the United States or the District of 
Columbia, or any or employee thereof, and
    (2) In connection with any judicial or other proceeding, 
application, request for a ruling or other determination, contract, 
claim, controversy, investigation, charge, accusation, arrest or other 
particular matter involving a specific party or parties in which the 
United States or the District of Columbia is a party or has a direct and 
substantial interest, and
    (3) As to (i), which was actually pending under his offical 
responsibility as an officer or employee within a period of one year 
prior to the termination of such responsibility, or, as to (ii), in 
which he participated personally and substantially as an officer or 
employee; or
    (c) Whoever, other than a special Government employee who serves for 
less than sixty days in a given calendar year, having been so employed 
as specified in subsection (d) of this section, within one year after 
such employment has ceased, knowingly acts as agent or attorney for, or 
otherwise represents, anyone other than the United States in any formal 
or informal appearance before,

[[Page 77]]

or with the intent to influence, makes any oral or written communication 
on behalf of anyone other than the United States, to--
    (1) The department or agency in which he served as an officer or 
employee, or any officer or employee thereof, and
    (2) In connection with any judicial, rulemaking, or other 
proceeding, application, request for a ruling or other determination, 
contract, claim, controversy, investigation, charge, accusation, arrest, 
or other particular matter, and
    (3) Which is pending before such department or agency or in which 
such department or agency has a direct and substantial interest--shall 
be fined not more than $10,000 or imprisoned for not more than two 
years, or both.
    (d)(1) Subsection (c) of this section shall apply to a person 
employed--
    (A) At a rate of pay specified in or fixed according to subchapter 
II of chapter 53 of title 5, United States Code, or a comparable or 
greater rate of pay under other authority;
    (B) On active duty as a commissioned officer of a uniformed service 
assigned to pay grade of 0-9 or above as described in section 201 of 
Title 37, United States Code; or
    (C) In a position which involves significant decision-making or 
supervisory responsibility, as designated under this subparagraph by the 
Director of the Office of Government Ethics, in consultation with the 
department or agency concerned. Only positions which are not covered by 
subparagraphs (A) and (B) above, and for which the basic rate of pay is 
equal to or greater than the basic rate of pay for GS-17 of the General 
Schedule prescribed by section 5332 of title 5, United States Code, or 
positions which are established within the Senior Executive Service 
pursuant to the Civil Service Reform Act of 1978, or positions of active 
duty commissioned officers of the uniformed services assigned to pay 0-7 
or 0-8, as described in section 201 of Title 37, United States Code, may 
be designated. As to persons in positions designated under this 
subparagraph, the Director may limit the restrictions of subsection (c) 
to permit a former officer or employee, who served in a separate agency 
or bureau within a department or agency, to make appearances before or 
communications to persons in an unrelated agency or bureau, within the 
same department or agency, having separate and distinct subject matter 
jurisdiction, upon a determination by the Director that there exists no 
potential for use of undue influence or unfair advantage based on past 
Government service. On an annual basis, the Director of the Office of 
Government Ethics shall review the designations and determinations made 
under this subparagraph and, in consultation with the department or 
agency concerned, make such additions and deletions as are necessary. 
Departments and agencies shall cooperate to the fullest extent with the 
Director of the Office of Government Ethics in the exercise of his 
responsibilities under this paragraph.
    (2) The prohibition of subsection (c) shall not apply to 
appearances, communications, or representation by a former officer or 
employee, who is--
    (A) An elected official of a State or local government or
    (B) Whose principal occupation or employment is with (i) an agency 
or instrumentality of a State or local government, (ii) an accredited, 
degree-granting institution of higher education, as defined in section 
1201(a) of the Higher Education Act of 1965, or (iii) a hospital or 
medical research organization, exempted and defined under section 
501(c)(3) of the Internal Revenue Code of 1954, and the appearance, 
communication, or representation is on behalf of such government, 
institution, hospital, or organization.
    (e) For the purposes of subsection (c), whenever the Director of the 
Office of Government Ethics determines that a separate statutory agency 
or bureau within a department or agency exercises functions of the 
department or agency, the Director shall by rule designate such agency 
or bureau as a separate department or agency; except that such 
designation shall not apply to former heads of designated bureaus or 
agencies, or former officers and employees of the department or agency 
whose official responsibilities included supervision of said agency or 
bureau.
    (f) The prohibitions of subsections (a), (b), and (c) shall not 
apply with respect to the making of communications solely for the 
purpose of furnishing scientific or technological information under 
procedures acceptable to the department or agency concerned with the 
particular matter, or if the head of the department or agency concerned 
with the particular matter, in consultation with the Director of the 
Office of Government Ethics, makes a certification, published in the 
Federal Register, that the former officer or employee has outstanding 
qualifications in a scientific, technological, or other technical 
discipline, and is acting with respect to a particular matter which 
requires such qualifications, and that the national interest would be 
served by the participation of the former officer or employee.
    (g) Whoever, being a partner of an officer or employee of the 
executive branch of the United States Government, of any independent 
agency of the United States, or of the District of Columbia, including a 
special Government employee, acts as agent or attorney for anyone other 
than the United States before any department, agency, court, court-
martial, or any civil, military, or naval commission of the United 
States or the District of Columbia, or any officer or

[[Page 78]]

employee thereof, in connection with any judicial or other proceeding, 
application, request for a ruling or other determination, contract, 
claim, controversy, investigation, charge, accusation, arrest, or other 
particular matter in which the United States or the District of Columbia 
is a party or has direct and substantial interest and in which such 
officer or employer or special Government employee participates or has 
participated personally and substantially as an officer or employee 
through decision, approval, disapproal, recommendation, the rendering of 
advice, investigation, or otherwise, or which is the subject of his 
official responsibility, shall be fined not more than $5,000, or 
imprisoned for not more than one year, or both.
    (h) Nothing in this section shall prevent a former officer or 
employee from giving testimony under oath, or from making statements 
required to be made under penalty of perjury.
    (i) The prohibition contained in subsection (c) shall not apply to 
appearances or communications by a former officer or employee concerning 
matters of a personal and individual nature, such as personal income 
taxes or pension benefits; nor shall the prohibition of that subsection 
prevent a former officer of employee from making or providing a 
statement, which is based on the former officer's or employee's own 
special knowledge in the particular area that is the subject of the 
statement, provided that no compensation is thereby received, other than 
that regularly provided for by law or regulation for witnesses.
    (j) If the head of the department or agency in which the former 
officer or employee served finds, after notice and opportunity for a 
hearing, that such former officer or employee violated subsection (a), 
(b), or (c) of this section, such department or agency head may prohibit 
that person from making, on behalf of any other person (except the 
United States), any informal or formal appearance before or with the 
intent to influence, any oral or written communication to, such 
department or agency on a pending matter of business for a period not to 
exceed five years, or may take other appropriate disciplinary action. 
Such disciplinary action shall be subject to review in an appropriate 
United States district court. No later than six months after the 
effective date of this Act, departments and agencies shall, in 
consultation with the Director of the Office of Government Ethics, 
establish procedures to carry out this subsection.

                               Discussion

    The foregoing provision establishes four types of restrictions:
    Permanent Restrictions. Former employees are forever barred from 
representing anyone other than the United States before a federal court 
or agency with respect to ``a particular matter involving a specific 
party or parties'' in which they ever participated as Government 
employees. Participation is broadly defined to include advice and 
recommendations as well as decision-making. However, the restriction 
applies only to matters which involve specific parties, such as 
contracts, grants and adjudications, and it covers only actual 
representation of another. The restriction does not cover rulemaking, 
and former employees may represent an outside party in proceedings 
governed by rules they helped to make.
    The restriction does not generally prohibit former employees from 
seeking contracts with EPA nor does it bar work on contracts with which 
they were involved while at EPA. Of course, representational activity 
involving contracts in which former employees participated is barred.
    Two-Year Restrictions. Former employees who had ``official 
responsibility'' for particular matters involving a specific party or 
parties but who did not actually participate in them are barred for a 
period of two years from representing outside parties on such matters. 
This restriction applies only to particular matters which were under a 
former employee's official responsibility during his or her final year 
in the responsible position. The terms of this restriction are the same 
as those of the permanent restriction.
    In addition, former Presidential appointees and other employees who 
have been designated as senior employees by the Office of Government 
Ethics are prohibited for two years from assisting an outside party by 
personal presence in connection with particular matters involving a 
specific party or parties in which such employees ever participated 
personally and substantially. This means that a former senior employee 
may not attend a meeting or hearing to assist an outside party's 
representative where such a matter will be discussed, even if the former 
employee does not directly communicate with intent to influence. The 
senior employee list is reviewed annually and is published at 5 CFR 
737.33.
    One-Year Restrictions. Former employees who served for more than 60 
days in senior employee positions (see 5 CFR 737.33) and who left EPA 
after February 28, 1980, are subject to a one-year quarantine which 
prohibits any communication with EPA with intent to influence on any 
matter, including rulemaking, regardless of whether such former 
employees participated in the matter. There are several exceptions to 
the one-year restrictions, which are set forth in 5 CFR part 737.
    Partners of Current Employees. The prohibition of 18 U.S.C. 207(g) 
bars partners of current regular and special Government employees from 
acting as agent or attorney where the current employee would be barred

[[Page 79]]

from doing so under 18 U.S.C. 207(a) or 18 U.S.C. 207(b) after he or she 
leaves the Government. However, after the employee leaves the Government 
the statutory restriction on partners does not apply. (Lawyers should be 
aware that the Code of Professional Responsibility, as implemented by 
most local bar associations, continues to bar such activity by partners 
of former employees unless the Agency grants a waiver based on screening 
the former employee from participation and sharing in fees.)

                                Examples

    1. An EPA employee served on a technical evaluation panel for a 
contract award. After he left EPA, he went to work for the contractor 
and was assigned to work as project manager for the contract he helped 
to award. A dispute arises over the meaning of a contract provision and 
the company's management asks the former employee to present the 
company's point of view to EPA.
    Answer: He may not do so because the contractual matter involved a 
specific party--the offeror--at the time the former employee 
participated. It is the same particular matter, and presenting the 
company's position to EPA would amount to communicating with intent to 
influence. Note, however, that it is proper for the employee to work on 
the contract.
    2. Same situation, except that the company merely asks the former 
employee to prepare a written submission to EPA for the signature of the 
company's president.
    Answer: The former employee may do so because the statute bars only 
representational activity, not aid and assistance.
    3. A former EPA attorney advised the Office of Air Quality Planning 
and Standards on a draft emission standard. After she leaves, a private 
client engages her to represent a company in a court proceeding in which 
the application of the rule is at issue.
    Answer: She may do so, since rulemaking is not ``a particular matter 
involving a specific party or parties.''
    4. A former Regional Administrator was responsible for an 
enforcement proceeding during his final year at EPA, but did not 
personally participate in the matter. Immediately after his resignation 
from EPA, the firm which was the subject of the enforcement action asks 
the former Regional Administrator to discuss settlement with EPA and the 
Justice Department.
    Answer: He may not do so during the first two years after leaving 
EPA. Moreover, since Regional Administrators are senior employees they 
generally may not communicate with EPA with intent to influence on any 
matter whatever for a period of one year.

                              18 U.S.C. 208

    Acts affecting a personal financial interest.
    (a) Except as permitted by subsection (b) hereof, whoever, being an 
officer or employee of the executive branch of the United States 
Government, of any independent agency of the United States, or of the 
District of Columbia, including a special Government employee, 
participates personally and substantially as a Government officer or 
employee, through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation, or otherwise, in a judicial or other 
proceeding, application, request for a ruling or other determination, 
contract, claim, controversy, charge, accusation, arrest, or other 
particular matter in which, to his knowledge, he, his spouse, minor 
child, partner, organization in which he is serving as officer, 
director, trustee, partner, or employee, or any person or organization 
with whom he is negotiating or has any arrangement concerning 
prospective employment, has a financial interest--
    Shall be fined not more than $10,000, or imprisoned not more than 2 
years, or both.
    (b) Subsection (a) hereof shall not apply (1) if the officer or 
employee first advises the Government official responsible for 
appointment to his position of the nature and circumstances of the 
judicial or other proceeding, application, request for a ruling or other 
determination, contract, claim, controversy, charge, accusation, arrest, 
or other particular matter and makes full disclosure of the financial 
interest and receives in advance a written determination made by such 
official that the interest is not so substantial as to be deemed likely 
to affect the integrity of the services which the Government may expect 
from such officer or employee, or (2) if, by general rule or regulation 
published in the Federal Register, the financial interest has been 
exempted from the requirements of clause (1) hereof as being too remote 
or too inconsequential to affect the integrity of Government officers' 
or employees' services.

                               Discussion

    This prohibition applies to rulemaking and policy matters which 
directly and predictably affect employees' financial interests as well 
as to grants, contracts and adjudications. For example, an employee who 
owns stock in a steel company may not participate in the development of 
new source performance standards for the steel industry. However, the 
employee may participate in developing ambient air quality standards 
because such rules would not distinctively affect the steel industry. 
Moreover, the restriction applies to parent and subsidiary companies of 
the firm in which an employee holds stock. Unless a waiver is granted 
under 18 U.S.C. 208(b), the restriction is rigid. The

[[Page 80]]

size of the financial interest is irrelevant, as is the employee's level 
of responsibility. Moreover, it does not matter that the organization in 
which the employee or the employee's spouse or minor child, etc., has a 
financial interest is a non-profit or public interest group, since such 
groups nonetheless have financial interests which the employee's EPA 
duties may affect. (See Section 3.301 concerning waivers under 18 U.S.C. 
208(b)).
    Retirement plans maintained by a former employer may also amount to 
a financial interest, depending on the circumstances. For example, a 
fund managed by a former employer which includes company stock would 
create a personal financial interest, whereas a pension plan of a State 
government which is managed by a separate trustee and in which the 
former employee's right have vested would not create a personal 
financial interest in the State government in which an EPA employee 
formerly served. Employees are encouraged to seek the advice of the 
Designated Agency Ethics Official regarding pension plans.

                                Examples

    1. An employee at grade GS-11 owns 10 shares of common stock in a 
smelting company which will be required to install additional pollution 
control equipment if a proposed new source performance standard is 
promulgated. The employee's EPA duties ordinarily include reviewing 
drafts of regulations and providing comments.
    Answer: The employee may not comment on the regulation, since this 
would be participation in a matter in which she has a financial 
interest. However, the Designated Agency Ethics Official might grant a 
waiver under 18 U.S.C. 208(b) in such a case.
    2. Same as above, except that the financial interest is part of a 
trust bequeathed by the employee's deceased parents for the benefit of 
her minor children.
    Answer: The result is the same, since the prohibition extends to the 
financial interests of employees' minor children.
    3. An employee is the treasurer of an environmental group which has 
applied to EPA for a grant. The employee receives no pay for this 
activity.
    Answer: The employee is barred from participating in any way, even 
by advice or recommendation, in the EPA decision on the application, 
since he is an officer of an organization which has a financial interest 
in the matter.
    4. An EPA employee is serving as Project Officer on a contract with 
a consulting firm to study emission control technologies for the steel 
industry. The consulting firm approaches the EPA employee to discuss 
possible future employment with the firm. The employee indicates that 
she will consider the matter.
    Answer: Until she rejects the offer or the offer is withdrawn, the 
employee must disqualify herself from any action as Project Officer, 
since any such action would be likely to affect the financial interests 
of an organization with which she is negotiating for employment.
    5. An EPA employee works in pesticides registration. As part of a 
retirement plan, his wife holds stock in a company which manufactures 
pesticides.
    Answer: The employee may not participate in processing any 
application from the firm in which his wife holds stock.

                              18 U.S.C. 209

    Salary of Government officials and employees payable only by United 
States.
    (a) Whoever receives any salary, or any contribution to or 
supplementation of salary, as compensation for his services as an 
officer or employee of the executive branch of the United States 
Government, of any independent agency of the United States, or of the 
District of Columbia, from any source other than the Government of the 
United States, except as may be contributed out of the treasury of any 
State, county, or municipality; or
    Whoever, whether an individual, partnership, association, 
corporation, or other organization pays, or makes any contribution to, 
or in any way supplements the salary of, any such officer or employee 
under circumstances which would make its receipt a violation of this 
subsection--
    Shall be fined not more than $5,000 or imprisoned not more than one 
year, or both.
    (b) Nothing herein prevents an officer or employee of the executive 
branch of the United States Government, or of any independent agency of 
the United States, or of the District of Columbia, from continuing to 
participate in a bona fide pension, retirement, group life, health or 
accident insurance, profitsharing, stock bonus, or other employee 
welfare or benefit plan maintained by a former employer.
    (c) This section does not apply to a special Government employee or 
to an officer or employee of the Government serving without 
compensation, whether or not he is a special Government employee, or to 
any person paying, contributing to, or supplementing his salary as such.
    (d) This section does not prohibit payment or acceptance of 
contributions, awards, or other expenses under the terms of the 
Government Employees Training Act (Pub. L. 85-507, 72 Stat. 327; 5 
U.S.C. 2301-2319, July 7, 1958).

                               Discussion

    This provision bars supplementation of a regular employee's 
Government.

[[Page 81]]

    The restriction does not apply to payments by States, counties or 
municipalities. For example, an employee on a leave of absence under the 
Intergovernmental Personnel Act could receive a higher salary from the 
receiving agency than he or she would have received from the Government.
    The restriction does not forbid receipt of outside earned or 
investment income nor does it generally apply to pension or employee 
welfare or benefit plans maintained by former employers.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39623, Sept. 27, 1985]

               Appendix B to Subpart A--Other Provisions '

    1. House Concurrent Resolution 175, 85th Congress, 2d Session, 72 
Stat. B12, ``Code of Ethics for Government Service.''
    2. Chapter 11 of title 18, United States Code, relating to bribery, 
graft, and conflicts of interests.
    3. The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913).
    4. Disloyalty and striking (5 U.S.C. 7311; 18 U.S.C. 1918).
    5. Disclosure of classified information (18 U.S.C. 798, 50 U.S.C. 
783) and disclosure of confidential information (18 U.S.C. 1905).
    6. Habitual excessive use of intoxicants (5 U.S.C. 7352).
    7. Misuse of Government motor vehicles or aircraft (31 U.S.C. 
638a(c)).
    8. Misuse of the franking privilege (18 U.S.C. 1719).
    9. Deceit in an examination or personnel actions in connection with 
Government employment (18 U.S.C. 1917).
    10. Fraud or false statements in a Government matter (18 U.S.C. 
1001).
    11. Mutilating or destroying a public record (18 U.S.C. 2071).
    12. Counterfeiting and forging transportation requests (18 U.S.C. 
508).
    13. Embezzlement of Government money or property (18 U.S.C. 641); 
failing to account for public money (18 U.S.C. 643); embezzlement of 
money or property (18 U.S.C. 564).
    14. Unauthorized use of documents relating to claims from or by the 
Government (18 U.S.C. 285).
    15. Proscribed political activities (Hatch Act--5 U.S.C. 7324-7327; 
18 U.S.C. 602, 603, 607, and 608).
    16. Acting as the agent of a foreign principal registered under the 
Foreign Agents Registration Act (18 U.S.C. 219).
    17. Acceptance of excessive honorariums (2 U.S.C. 411i).
    18. Outside earned income in excess of 15% of the salaries of 
Presidential appointees (5 U.S.C. App. I).

 Appendix C to Subpart A--Procedures for Administrative Enforcement of 
                      Post-Employment Restrictions

                               1. Purpose

    The purpose of this Appendix is to implement provisions of The 
Ethics in Government Act which concern restrictions on post-EPA 
employment. This Appendix contains procedures which EPA follows whenever 
it believes that a former EPA employee has violated 18 U.S.C. 207 (a), 
(b), or (c), as implemented by 5 CFR part 737.
    Authority: 18 U.S.C. 207 (a), (b), (c), as implemented by 5 CFR part 
737.

                              2. Delegation

    The Administrator delegates the authority to carry out this Appendix 
to the Inspector General, with the following exceptions:
    (a) A member of the Environmental Appeals Board or its designee is 
the presiding official as provided by paragraph 9(a) of this appendix;
    (b) The Designated Agency Ethics Official has the authority to 
designate the Agency Counsel, as provided by paragraph 9(b) of this 
appendix;
    (c) The Deputy Administrator has the authority to impose appropriate 
administrative sanctions, as provided by paragraph 13 of this appendix.

   3. Preliminary Review and Referral of Information About Violations

    The Inspector General receives and reviews written or oral 
information concerning a possible violation of the post-employment 
restrictions of 18 U.S.C. 207 (a), (b) or (c) as implemented by 5 CFR 
part 737. The Inspector General reviews the information to determine 
whether the matter is clearly frivolous and does not merit further 
action. If the Inspector General determines that the matter merits 
further action, the Inspector General informs the Director of the Office 
of Government Ethics and consults with the Criminal Division of the 
Department of Justice regarding the conduct of an investigation. The 
purpose of the consultation is to avoid prejudicing any criminal 
proceeding that the Justice Department may have under consideration.

                4. Investigation by the Inspector General

    If the Criminal Division of the Justice Department agrees that EPA 
should handle the matter, the Inspector General conducts an 
investigation of the possible violation of the post-employment 
restrictions of 18 U.S.C. 207 (a), (b) or (c).

[[Page 82]]

            5. Initiating Process To Impose Sanctions: Notice

    If the Inspector General's investigation establishes that there are 
reasonable grounds to believe that a former EPA employee has violated 
the post-employment restrictions of 18 U.S.C. 207 (a), (b) or (c), the 
Inspector General may initiate the process of imposing sanctions under 
18 U.S.C. 207(j). The Inspector General sends the former EPA employee a 
written notice of charges and a copy of this appendix.
    The notice of charges describes the allegations against the former 
employee in sufficient detail to enable the former employee to prepare 
an adequate defense and contains the following final paragraph:
    You may request a hearing by mailing or otherwise furnishing written 
notice of your request to me within 30 days after the date you receive 
this notice of charges. If you do not request a hearing within 30 days, 
the Agency may nonetheless determine that you have violated the 
provisions of 18 U.S.C. 207 (a), (b), or (c) as implemented by 5 CFR 
part 737 and impose administrative sanctions set forth in paragraph 15 
of the enclosed Appendix to 40 CFR part 3, Subpart A. You have a right 
to counsel, at your own expense, at all stages of this administrative 
enforcement proceeding. The procedures for administrative enforcement of 
the post-employment restrictions are set forth in the enclosed appendix.

                        6. Request for a Hearing

    A former EPA employee must request a hearing within 30 days after 
receiving the notice of charges. Otherwise, the initial determination of 
the charges is made without a hearing.

                  7. Initial Decision Without a Hearing

    If a former EPA employee fails to make a timely request for a 
hearing, the Inspector General prepares an initial decision in writing. 
The Inspector General furnishes this decision to the former employee 
within 60 days after the time for requesting a hearing expires. The 
initial decision sets forth the findings of fact and conclusions of law 
on which it is based.

         8. Appeal of an Initial Decision Made Without a Hearing

    A former employee may appeal an initial decision made without a 
hearing. The appeal must be submitted to the Deputy Administrator in 
accordance with paragraph 10(b) of this appendix.

                   9. Initial Decision After a Hearing

    If the former employee requests a hearing, an initial decision is 
made after a hearing takes place.
    (a) The Presiding Official. A member of the Environmental Appeals 
Board or its designee presides at the hearing. The Presiding Official, 
if not a member of the Environmental Appeals Board, must be an attorney 
and an employee of the Environmental Protection Agency. If the 
Environmental Appeals Board designates a Presiding Official other than 
one of its members, it must promptly notify the former employee and the 
Inspector General of the Presiding Official's name, address and 
telephone number.
    The Presiding Official shall conduct the hearing in a fair and 
impartial manner and issue an initial decision as promptly as possible 
after the record is complete, but in no event later than 60 days after 
the hearing is completed. No person who has participated in any way in 
the investigation or in the decision to initiate administrative 
enforcement, or who is a subordinate of the Agency Counsel, or who has 
had any connection or dealings with the former employee may serve as 
Presiding Official. The Environmental Appeals Board may remove a 
Presiding Official for cause.
    (b) Appointment of Agency Counsel. The Designated Agency Ethics 
Official shall designate an attorney to act as Agency Counsel. The 
Designated Agency Ethics Official notifies the Presiding Official and 
the former employee (or if the former employee is represented by 
counsel, his or her attorney) of the name, address and telephone number 
of the Agency Counsel.
    (c) Hearings. Hearings will be held at EPA Headquarters in 
Washington, DC, or at an EPA regional office or laboratory. After 
conferring with the parties, the Presiding Official shall set a 
reasonable time, date and place for the hearing with due regard for the 
former employee's need for adequate time to prepare a defense and the 
need to expeditiously resolve allegations which may damage the former 
employee's reputation. At least 15 days before the date set for the 
hearing, the Presiding Official notifies the parties of the time, date 
and place of the hearing. Hearings will be as informal as reasonably 
possible, consistent with establishing an orderly record. Federal rules 
of evidence do not control the hearing, although the Presiding Official 
may use these rules as guidance. The Presiding Official generally will 
admit evidence unless it is clearly irrelevant, immaterial or unduly 
repetitious. The parties have the right to:
    (i) Introduce and examine witnesses;
    (ii) Offer documentary evidence;
    (iii) Confront and cross-examine adverse witnesses; and
    (iv) Present oral argument in the form of brief opening and closing 
statements.
    In addition, the former employee has the right:

[[Page 83]]

    (i) To represent himself or herself or be represented by counsel at 
all stages of administrative enforcement; and
    (ii) To require that all persons be excluded from the hearing room 
except the reporter, the Presiding Official, the Agency Counsel and 
witnesses during the time they are actually testifying.
    Witnesses shall testify under oath or affirmation administered by 
the Presiding Official.
    The Presiding Official must arrange for a transcript of the hearing 
through the EPA Procurement and Contracts Management Division using the 
funds of the Office of Administration. The former employee is entitled 
to a copy of the transcript at no charge, and the Presiding Official 
must furnish it as soon as it is received from the reporter.
    (d) Burden of Proof. The Agency has the burden of proof and must 
establish a violation by clear and convincing evidence.
    (e) Initial Decision. The Presiding Official must make an initial 
decision exclusively on matters of record in the proceeding. The initial 
decision must be made within 60 days after the hearing and must set 
forth the findings of fact and conclusions of law on which it is based. 
The Presiding Official must furnish the decision to the former employee 
or his/her counsel and to the Agency Counsel and the Inspector General.

         10. Appeal of an Initial Decision Made After a Hearing

    (a) Initial Decision After a Hearing. The initial decision of the 
Presiding Official becomes the final Agency decision unless, within 30 
days after receiving the initial decision, either party appeals by 
mailing or otherwise furnishing to the Deputy Administrator written 
notice of appeal, with a copy to the opposing party. The notice of 
appeal may discuss the reasons why the party contends that the initial 
decision is erroneous, subject to the right of the opposing party to 
present a written response to the Deputy Administrator within 30 days 
after receiving a copy of the notice of appeal.
    The Deputy Administrator must base his or her decision solely on the 
record of the proceedings or those portions cited by the parties to 
limit the issue and the notice of appeal and response. If the Deputy 
Administrator modifies or reverses the initial decision, he or she must 
state in writing why the initial decision was erroneous.
    (b) Initial Decision Without a Hearing. If the former employee did 
not request a hearing, the initial decision of the Inspector General 
will become the final Agency decision unless the former employee submits 
a written notice of appeal to the Deputy Administrator within 30 days 
after receipt of the initial decision, with a copy to the Inspector 
General. The notice of appeal may discuss reasons why the initial 
decision is erroneous, subject to the right of the Inspector General to 
present a written response to the Deputy Administrator within 30 days 
after receiving the notice of appeal. The Deputy Administrator's review 
will be based on an examination of the Inspector General's evidence and 
any legal arguments which the former employee or the Inspector General 
presents.

     11. Ex Parte Communications (Communications Outside the Record)

    Neither a Presiding Official nor the Deputy Administrator will 
receive from any person any written or oral communication outside the 
record about the merits of an administrative enforcement proceeding or 
appeal. This does not apply to ex parte discussions concerning 
administrative functions or procedures under this Appendix, or to 
consultations between the Deputy Administrator and staff members who 
assist the Deputy Administrator.

                        12. Calculating Deadlines

    If a deadline falls on a Saturday, Sunday or federal holiday, the 
next working day is considered the deadline.

                      13. Administrative Sanctions

    Whenever a final determination is made that a former employee has 
violated 18 U.S.C. 207 (a), (b) or (c) as implemented by 5 CFR part 737, 
the Deputy Administrator may impose an appropriate administrative 
sanction, which may include one or more of the following:
    (i) Prohibiting the former employee from making on behalf of any 
other person (except the United States) any formal or informal 
appearance before, or, with the intent to influence, any oral or written 
communication on any matter of business for a period not to exceed 5 
years. This will be accomplished by a memorandum to all EPA employees 
directing them to refuse to participate in any such appearance or to 
accept any such communication during the restriction period.
    (ii) Debarring the former employee from receiving any EPA contract, 
grant, cooperative agreement or loan for a period of up to 3 years, 
provided that the violation was committed in the context of seeking or 
performing a government contract, grant, cooperative agreement or loan.
    (iii) A written reprimand.
    The Deputy Administrator may confer with the parties before deciding 
upon an administrative sanction. The former employee must be notified of 
any administrative sanction by certified mail, return receipt requested.

                          14. Confidentiality.

    All records and information regarding administrative enforcement 
proceedings under this appendix will be kept confidential and

[[Page 84]]

will not be disclosed except as required by law or regulation.

                           15. Judicial Review

    Any person found to have violated 18 U.S.C. 207 (a), (b) or (c) as 
implemented by 5 CFR part 737, may seek judicial review of this 
administrative determination.

[49 FR 7530, Feb. 29, 1984, as amended at 57 FR 5323, Feb. 13, 1992]



                    Subpart B--Advice and Enforcement



Sec. 3.200  Purpose.

    This subpart designates EPA officials responsible for advising 
employees on ethics questions and prescribes procedures for enforcing 
the requirements of this part. There is no attorney/client relationship 
between Ethics Officials and employees who seek advice; admissions to 
Ethics Officials of past violations are not privileged.



Sec. 3.201  Designation.

    The following officials are available to advise EPA employees:
    (a) The Administrator appoints a Designated Agency Ethics Official 
who:
    (1) Acts as the principal contact with the Office of Government 
Ethics;
    (2) Provides guidance to Deputy Ethics Officials;
    (3) Collects, reviews and maintains Executive Personnel Financial 
Disclosure Reports and provides them to the public as required;
    (4) Makes determinations and provides oral and written advice on 
ethics questions; and
    (5) Performs all other functions under 5 CFR 738.203.
    (b) The Administrator also appoints an Alternate Agency Ethics 
Official to assist the Designated Agency Ethics Official under 5 CFR 
738.202.
    (c) The Designated Agency Ethics Official may appoint Deputy Ethics 
Officials under 5 CFR 738.202 in addition to those listed below.
    The Deputy Ethics Officials are the:
    (1) Assistant Administrators;
    (2) Inspector General;
    (3) Office Directors reporting to Assistant Administrators;
    (4) Heads of Staff Offices reporting directly to the Administrator;
    (5) Laboratory Directors; and
    (6) Regional Administrators.
    (d) The Deputy Ethics Officials:
    (1) Counsel employees on questions arising under this part;
    (2) Review and maintain Confidential Statements of Employment and 
Financial Interests filed under subpart C of this part;
    (3) Direct employees to file Confidential Statements of Employment 
and Financial Interest under Sec. 3.302(c);
    (4) Decide requests for approval of outside employment under Subpart 
E of this part; and
    (5) Consult, as necessary, with the Designated Agency Ethics 
Official.



Sec. 3.202  Reporting, investigating and enforcing.

    (a) Any employee who is aware of a possible violation of this part 
must inform the appropriate Deputy Ethics Official, the Designated 
Agency Ethics Official or the Inspector General.
    (b) Violation of this part may be cause for disciplinary or remedial 
action. Remedial action may include a direction to dispose of 
conflicting interests, waivers under 18 U.S.C. 208(b), disqualification 
from particular assignments, reassignment or other action such as 
establishment of an appropriate trust.



             Subpart C--Financial Interests and Investments



Sec. 3.300  Prohibitions against acts affecting a personal financial interest.

    (a) As discussed in appendix A to subpart A, section 208(a) of title 
18, United States Code, prohibits an employee from knowingly 
participating in an EPA matter in which the employee, the employee's 
spouse, minor child, present or prospective employer, or organization in 
which the employee is an officer, has a financial interest.
    (b) Activities which may affect a financial interest are:
    (1) Negotiating, administering or auditing contracts or assistance 
agreements;
    (2) Selecting or approving contractors or subcontractors;
    (3) Enforcement activities;
    (4) Issuing permits;
    (5) Registering pesticides;
    (6) Certifying motor vehicles; and

[[Page 85]]

    (7) Rulemaking and policy matters which have a direct and 
predictable effect on the financial interests of companies in which the 
employee owns stock or has an official or employment relationships. 
Examples are discussed in appendix A to subpart A.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39623, Sept. 27, 1985]



Sec. 3.301  Waiver.

    (a) The Designated Agency Ethics Official may waive the prohibition 
of 18 U.S.C. 208(a) for rulemaking and policy matters if the interest is 
not so substantial as to be deemed likely to affect the integrity of an 
employee's services. Employees may request such a waiver by submitting a 
written disclosure of the nature of the financial interest to the 
Designated Agency Ethics Official, together with a discussion of the 
employee's duties and the reasons why a waiver is appropriate.
    (b) The prohibition of 18 U.S.C. 208(a) may also be waived by 
general regulation. Financial interests derived from the following have 
been determined to be too remote or too inconsequential to affect the 
integrity of employee's services, and employees may participate in 
matters affecting them:
    (1) Mutual funds (including tax-exempt bond funds), except those 
which concentrate their investments in particular industries;
    (2) Life insurance, variable annuity, or guaranteed investment 
contracts issued by insurance companies;
    (3) Deposits in a bank, savings or loan association, credit union or 
similar financial institution;
    (4) Real property used solely as the personal residence of an 
employee;
    (5) Bonds or other securities issued by the U.S. Government or its 
agencies.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39623, Sept. 27, 1985]



Sec. 3.302  Financial Disclosure Reports and Confidential Statements of Employment and Financial Interest.

    (a) The following employees (including employees expected to serve 
in an ``acting'' capacity for more than 60 days or who actually serve in 
such capacity for more than 60 days) are required to file public 
Executive Personnel Financial Disclosure Reports in accordance with 5 
CFR part 734:
    (1) Presidential appointees;
    (2) Employees whose positions are classified at GS-16 or above of 
the General Schedule;
    (3) Members of the Senior Executive Service;
    (4) Administrative Law Judges appointed under 5 U.S.C. 3105;
    (5) Schedule C employees;
    (6) The Designated Agency Ethics Official, and
    (7) Special Government employees whose basic daily rate of pay 
equals or exceeds the basic daily rate for GS-16 of the General Schedule 
and who are expected to perform more than 60 days of actual service 
during a 365 day period. (If such employees are not expected to perform 
more than 60 days of actual service, but nonetheless exceed 60 days, 
reports are due within 15 days after the 60th day of actual service.)

(See 5 CFR part 734 for reporting requirements for Presidential 
nominees.)

Financial Disclosure Reports must be submitted to the Designated Agency 
Ethics Official within 30 days after an employee assumes a covered 
position (unless the employee has left another covered position in the 
Executive Branch within the previous 30 days), by May 15 of each year 
(unless the Designated Agency Ethics Official or the Office of 
Government Ethics grants an extension) and within 30 days after leaving 
a covered position (unless the employee assumes another covered position 
in the Executive Branch within 30 days). These reports are available to 
the public. However, the Designated Agency Ethics Official may charge 
for direct reproduction costs at the rate set forth in 40 CFR 2.120(g). 
The Designated Agency Ethics Official may also require prepayment of any 
fee in accordance with 40 CFR 2.120(c) and waive fees under the 
circumstances described in 40 CFR 2.120(d).
    (b) In addition, all employees in the following positions in grades 
GM or GS-13 or above (or comparable levels under other pay systems) must 
file Confidential Statements of Employment and Financial Interests 
unless they are required to file public Executive Personnel Financial 
Disclosure Reports:

[[Page 86]]

    (1) All employees who report to the General Counsel or the Assistant 
Administrator for Enforcement and Compliance Monitoring, and Regional 
Counsel employees;
    (2) All employees in the immediate Office of the Administrator or 
Deputy Administrator;
    (3) All Branch chiefs in the Facilities and Support Services 
Division;
    (4) Employees in the Procurement and Contracts Management;
    (5) Employees in the Grants Administration Division;
    (6) Employees in the Office of Inspector General;
    (7) Temporary experts and consultants; and
    (8) Special Government employees as provided in Sec. 3.602.
    (c) The Designated Agency Ethics Official or cognizant Deputy Ethics 
Offical may also require employees other than those whose positions are 
listed above to file Confidential Statements of Employment and Financial 
Interest by specific written direction. The following employees should 
be required to file:
    (1) Those in positions classified at GM or GS-13 or above (or 
comparable levels under other pay systems) whose duties and 
responsibilities require the exercise of judgment in participating in or 
making Government decisions with respect to:
    (i) Evaluating or selecting contractors, initiating procurement 
requests, acting as project officer on contracts or auditing 
contractors;
    (ii) Awarding or monitoring assistance agreements; or
    (iii) Regulating private enterprise.
    (2) Those in positions classified at GS-12 or below (or comparable 
levels under other pay systems) if their duties directly affect the 
financial interests of specific parties. Such positions are limited to 
contracting officers, project officers, inspectors, auditors and On-
Scene Coordinator representatives.
    (d) Other employees classified below the GM or GS-13 level (or 
comparable levels under other pay systems) who are in positions which 
otherwise meet the criteria of paragraph (c)(1) of this section may also 
be required to file, provided the Office of Government Ethics has 
approved in writing. Deputy Ethics Officials should consult with the 
Designated Agency Ethics Official in seeking such approval.
    (e) Financial and employment interests of employees' relatives. In 
completing Confidential Statements of Employment and Financial 
Interests, the financial and employment interests of a spouse or minor 
child are considered to be interests of the employee and must be 
reported.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39623, Sept. 27, 1985]



Sec. 3.303  Special requirements under the Clean Air Act.

    (a) Notwithstanding any other provisions of this part, employees 
whose positions are listed in Appendix B may not be employed by, serve 
as attorney for, act as consultant to, or hold any other official or 
contractual relationship to (other than ownership of stock, bonds, or 
other financial interest)--
    (1) The owner or operator of any major stationary source or any 
stationary source which is subject to a standard of performance or 
emission standard under section 111 (42 U.S.C. 7411) or section 112 (42 
U.S.C. 7412) of the Act;
    (2) Any manufacturer of any class or category of mobile sources if 
such mobile sources are subject to regulation under the Act;
    (3) Any trade or business association of which an owner or operator 
referred to in paragraph (a)(1) of this section or a manufacturer 
referred to in paragraph (a)(2) of this section is a member;
    (4) Any organization (whether nonprofit or not) which is a party to 
litigation or engaged in political, educational or informational 
activities relating to air quality.
    (b) In examining financial interest statements, reviewers must 
consider whether certain financial interests of a covered employee may 
be inconsistent with the employee's position and duties. In particular, 
any financial interest that presents a conflict of interest with an 
employee's duties under the Act is resolved under Sec. 3.202 of this 
part.
    (c) Under section 318(d) of the Clean Air Act, any employee subject 
to this provision who knowingly violates the

[[Page 87]]

provisions of this section is subject to a fine of not more than $2,500 
or imprisonment for not more than one year, or both.



Sec. 3.304  Special requirements under the Toxic Substances Control Act.

    (a) Notwithstanding any other provisions of this part, members of 
the Interagency Testing Committee established under section 4(e) of the 
Toxic Substances Control Act (15 U.S.C. 2603(e)) and their designees may 
not:
    (1) Accept employment or compensation from any person subject to any 
requirement of the Act, or to any rule or order issued under it, for a 
period of twelve months after their committee service ceases; or
    (2) Hold any stocks or bonds or have any substantial pecuniary 
interest in any person engaged in the manufacture, processing or 
distribution in commerce of any substance or mixture subject to any 
requirement of the Act or of any rule or order issued under it.
    (b) This provision is enforceable by an action for a court order to 
restrain violations.



Sec. 3.305  Special requirements under the Surface Mining Control and Reclamation Act.

    (a) Notwithstanding any other provisions of this part, no employee 
who performs any function or duty under the Surface Mining Control and 
Reclamation Act (such as reviewing Environmental Impact Statements of 
the Office of Surface Mining in the Department of the Interior) may have 
a direct or indirect interest in underground or surface coal mining 
operations. Regulations of the Office of Surface Mining at 30 CFR 706.3 
define the terms ``direct financial interest'' and ``indirect financial 
interest'' as follows:
    (1) Direct financial interest. Means ownership or part ownership by 
an employee of land, stocks, bonds, debentures, warrants, a partnership, 
shares, or other holdings and also means any other arrangement where the 
employee may benefit from his or her holding in or salary from coal 
mining operations. Direct financial interests include employment, 
pensions, creditor, real property and other financial relationships.
    (2) Indirect financial interest. Means the same financial 
relationships as for direct ownership, but where the employee reaps the 
benefits of such interests, including interests held by his or her 
spouse, minor child and other relatives, including in-laws, residing in 
the employee's home. The employee will not be deemed to have an indirect 
financial interest if there is no relationship between the employee's 
functions or duties and the coal mining operation in which the spouse, 
minor children or other resident relative holds a financial interest.
    (b) Violation of these restrictions is punishable by a fine of up to 
$2,500 or imprisonment for not more than one year, or both.

 Appendix A to Subpart C--Procedures for Filing Confidential Statements 
                  of Employment and Financial Interest

    (1) Submission--Each employee required to submit a Confidential 
Statement of Employment and Financial Interests must submit the 
completed EPA Form 3120-1 within 30 days after entrance on duty or 
(where the position is not specifically listed in this part) within 30 
days after being notified of the requirement to file. Interests which 
are exempt from the prohibition of 18 U.S.C. 208(a) (except for 
interests in mutual funds) need not be reported. See Sec. 3.301(b). The 
completed form is sent to the Deputy Ethics Official for the employee's 
organization. Headquarters employees in the Office of General Counsel 
and employees in the immediate Office of the Administrator submit their 
forms to the Designated Agency Ethics Official.
    (2) Decisions. When there appears to be a conflict between the 
employee's financial interests and the performance of Government duties, 
the reviewer provides the employee an opportunity to discuss the matter. 
Deputy Ethics Officials should discuss any such problems with the 
Designated Agency Ethics Official, who determines if divestiture is 
required. See Sec. 3.202(c). The Inspector General may be asked to 
investigate the circumstances of apparent violations of the conflict of 
interest laws or these regulations.
    (3) Supplemental Statements--For purposes of annual review, 
employees who are required to submit EPA Form 3120-1 must submit a new 
statement each July by no later than July 31, even if no changes have 
taken place during the year.
    Deputy Ethics Officials must notify such employees of this 
requirement and must complete review of the statements within 30 days 
after submission. By September 30 of

[[Page 88]]

each year, Deputy Ethics Officials must submit a statement to the 
Designated Agency Ethics Official containing the following information: 
(i) the number of employees in their organization at GM/GS 13-15; (ii) 
the number required to file; (iii) the number of other employees 
required to file under Sec. 3.302(c) or 3.302(d); (iv) the number of 
remedial actions taken by type of action (i.e., recusals, waivers, 
divestitures, reassignments or blind trusts); (v) a certification that 
no employee who performs any ``functions or duties'' under the Surface 
Mining Control and Reclamation Act holds any prohibited interests (see 
Sec. 3.305); and (6) a certification that all required reports have been 
received, reviewed and signed and that any necessary remedial actions 
have been taken.
    In addition, whenever additions or changes have taken place, 
employees who are required to file must submit a supplemental statement 
by the end of the four month period in which the transactions occurred; 
that is, by November 30 and March 31. Deputy Ethics Officials must 
notify employees of this requirement during the months when these 
updates are due, and must review and sign the updates within 30 days 
after submission. However, they need not provide any report to the 
Designated Agency Ethics Official regarding the updates.
    (4) Confidentiality--EPA Form 3120-1 is confidential. No information 
from this form may be disclosed other than to the Designated Agency 
Ethics Official and the Alternate Agency Ethics Official, immediate 
staff assistants whom the responsible Deputy Ethics Official has 
specifically designated in writing, the Office of Inspector General, 
committees or subcommittees of Congress on the written request of the 
chairman, or as the Director of the Office of Government Ethics or the 
Administrator may determine for good cause.
    (5) Maintenance of statements. EPA Forms 3120-1 and related records 
must be kept in a locked container. They are retained for six years 
after filing and then disposed of (unless needed in an ongoing 
investigation).

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39623, Sept. 27, 1985]

Appendix B to Subpart C--Employees Subject to Special Requirements Under 
                            the Clear Air Act

    The positions listed below have been determined to be of a 
regulatory or policymaking nature under section 318(d) of the Clean Air 
Act. Whenever the title of a position is listed, it includes any person 
who occupies the position as ``acting'' and any person who occupies a 
successor position under a subsequent reorganization.
    Coverage:
    (1) Under the Office of the Administrator: the Administrator, Deputy 
Administrator, Regional Administrators, General Counsel, Deputy General 
Counsel, Associate General Counsel for Air, Noise and Radiation, 
Enforcement Counsel, Deputy Enforcement Counsel, Associate Deputy 
Enforcement Counsel for Air and Director of the Science Advisory Board.
    (2)(i) In the Office of the Administrator: Administrator, Deputy 
Administrator, and the Director of the Science Advisory Board.
    (ii) Regional Administrators.
    (iii) In the Office of General Counsel: General Counsel, Deputy 
General Counsel, Associate General Counsel for Air and Radiation.
    (iv) In the Office of Enforcement and Compliance Monitoring: 
Assistant Administrator for Enforcement and Compliance Monitoring, 
Senior Enforcement Counsel, Associate Enforcement Counsel for Air 
Enforcement.
    (v) In the Office of Policy, Planning and Evaluation: Assistant 
Administrator for Policy, Planning and Evaluation, Deputy Assistant 
Administrator for Policy, Planning and Evaluation, Director of the 
Office of Policy Analysis, Director of the Office of Standards and 
Regulations.
    (vi) In the Office of Air and Radiation: Assistant Administrator for 
Air and Radiation, Deputy Assistant Administrator for Air and Radiation, 
Director of the Office of Policy Analysis and Review, Director of the 
Office of Program Development, Director of the Office of Air Quality 
Planning and Standards, Director of the Office of Mobile Sources, and 
Directors of the following Divisions: Control Programs Development, 
Emission Standards and Engineering, Monitoring and Data Analysis, 
Stationary Source Compliance, Strategies and Air Standards, 
Certification, Emission Control Technology, Engineering Operations, 
Field Operations and Support and Manufacturers Operations.
    (3) Under the Office of Air, Noise and Radiation:
    The Assistant Administrator for Air, Noise and Radiation, Director 
of the Office of Policy Analysis, Director of the Office of 
Transportation and Land Use Policy, Director of the Office of Air 
Quality Planning and Standards and Division Directors reporting to that 
official, and the Director of the Office of Mobile Source Air Pollution 
Control and Division Directors reporting to that official.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39624, Sept. 27, 1985]



             Subpart D--Gifts, Gratuities, or Entertainment



Sec. 3.400  Policy.

    (a) Except as provided in paragraph (d) and in Sec. 3.104(e), no 
employee may

[[Page 89]]

directly or indirectly (for example, through spouses or children) accept 
any gift, gratuity, entertainment (including meals), favor, loan or any 
other thing of value from any person, corporation or group which:
    (1) Has or is seeking to obtain contracts or assistance agreements 
with EPA;
    (2) Has interests which may be substantially affected by the 
employee's performance or nonperformance of official duty;
    (3) Is in any way attempting to affect the employee's official 
action; or
    (4) Conducts activities that EPA regulates.
    (b) The following are exceptions to the general rule set forth in 
paragraph (a):
    (1) Accepting modest entertainment, such as meals or refreshments, 
in connection with participation in widely attended gatherings sponsored 
by industrial, technical or professional organizations or in connection 
with attendance at public ceremonies or similar activities where the 
employee officially represents EPA. Acceptance of ordinary business 
lunches is not permitted.
    (2) Accepting gifts, favors or entertainment where there is an 
obvious family or personal relationship between the employee or the 
employee's family and the donor, and where this relationship clearly 
motivated the gift.
    (3) Purchasing at advantageous rates offered to Government employees 
as a class.
    (4) Accepting loans from banks or other financial institutions on 
customary terms.
    (5) Accepting unsolicited advertising or promotional material, such 
as pens, pencils, note pads, calendars or other items worth less than 
$10 (U.S. retail).
    (6) Accepting incidental transportation (such as rides to and from 
airports) furnished in connection with official duties and customarily 
provided by private organizations. (For further guidance concerning 
acceptance of travel and related expenses, see Sec. 3.505.)
    (7) Accepting transportation, lodging and meals of modest value in 
connection with interviews for future employment, provided the employee 
is in an annual leave status at the time such interview occurs.
    (8) Accepting gifts and honors from foreign governments as 
authorized by 5 U.S.C. 7342. (See 41 CFR part 101-49).
    (9) Awards incident to training or meetings under 5 U.S.C. 4111 and 
5 CFR part 410, subpart G. This requires the specific written approval 
of the Designated Agency Ethics Official or the Alternate Agency Ethics 
Official. See Sec. 3.504(c)(1).
    (c) Where circumstances require temporary acceptance of a prohibited 
gift or gratuity, the acceptance must be reported to the Designated 
Agency Ethics Official who shall return it to the donor with an 
explanation, where practical. Otherwise, the gift or gratuity will be 
donated to a public or charitable institution and, where practical, the 
donee will be informed of the disposition. (But see 41 CFR part 101-49 
regarding gifts from foreign governments.)



                      Subpart E--Outside Employment



Sec. 3.500  Definitions.

    Outside employment or other outside activity is any work or service 
performed by an employee other than the performance of official duties. 
It includes such activities as writing and editing, publishing, 
teaching, lecturing, consulting, self-employment and other work or 
services. Employees must ensure that their outside activities may not 
reasonably be construed as implying official EPA endorsement of any 
statement, activity, product or service.



Sec. 3.501  Policy.

    (a) Subject to the approval requirements of Sec. 3.508, employees 
may engage in outside employment or other outside activity consistent 
with the standards of this subpart.
    (b) Employees may participate in community affairs as private 
citizens where consistent with these regulations. Such activities 
include:
    (1) Speaking, writing, editing, and teaching;
    (2) Participating in charitable, religious, professional, social, 
fraternal, nonprofit educational and recreational, public service or 
civic organizations;

[[Page 90]]

    (3) Participating in the activities of national, State and local 
political parties to the extent permitted under the Hatch Act (5 U.S.C. 
7324-7324) and 18 U.S.C. 602, 603, 607 and 608.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39624, Sept. 27, 1985]



Sec. 3.502  Guidelines and limitations.

    Outside employment and other outside activity is prohibited if it 
would:
    (a) Violate a federal or State statute, local ordinance, Executive 
Order or regulation;
    (b) Involve acceptance of a fee, compensation, gift, payment of 
expense, or other thing of monetary value under circumstances which 
would result in, or create the appearance of, a conflict of interest;
    (c) Bring discredit upon the Government or EPA, or lead to 
relationships which would impair public confidence in the integrity of 
the Government or EPA;
    (d) Involve work with any EPA contractor or subcontractor on an EPA 
project or work with any holder of an EPA assistance agreement or 
subagreement on an EPA project (unless the Designated Agency Ethics 
Official approves work on such acquisition or assistance agreement in 
writing) or would involve work for any person or organization in a 
position to gain advantage through the employee's exercise of official 
duties;
    (e) Involve use of the employee's time during official working 
hours;
    (f) Involve use of official facilities (for example, office space, 
telephones, office machines or supplies) or the services of other 
employees during duty hours;
    (g) Interfere with the efficient performance of Government duties or 
impair the employee's mental or physical capacity to perform such 
duties;
    (h) Involve use of information obtained as a result of Government 
employment which has not been made available to the general public.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39624, Sept. 27, 1985]



Sec. 3.503  Distinction between official and outside activities.

    Writing, speaking, or editing is normally official if it results 
from a request to EPA to furnish a speaker, author or editor. If an 
invitation is addressed to an employee, the invitation is official if it 
is tendered because of the employee's EPA position rather than the 
employee's individual knowledge or accomplishments. The fact that an 
activity is prepared for or performed outside normal duty hours is not 
controlling. Otherwise, such activities are outside activities for 
purposes of Sec. 3.500.



Sec. 3.504  Compensation, honorariums, travel expenses.

    (a) Employees may accept compensation for permissible outside 
employment or other outside activity. However, under 2 U.S.C. 441 no 
employee may accept any honorarium of more than $2,000 for any single 
appearance, speech or article. In addition, Presidential appointees are 
prohibited from receiving outside earned income in any year in excess of 
15% of their Government salaries. See section 210 of Public Law 95-521, 
5 U.S.C. App. 1.
    (b) Except as provided below, travel expenses for official 
activities must be paid by the Government. Conversely, appropriated 
funds must not be used for nonofficial travel.
    (c) The Comptroller General has ruled that acceptance of official 
travel expenses from outside sources is an impermissible augmentation of 
agency appropriations in the absence of specific statutory authority. 
Accordingly, employees may not accept official travel expenses except 
for:
    (1) Attendance at meetings, if paid by organizations listed under 
section 501(c)(3) of the Internal Revenue Code (see 5 U.S.C. 4111), and 
the prior written approval of the Designated Agency Ethics Official or 
the Alternate Agency Ethics Official is obtained;
    (2) Travel entirely outside the United States paid by foreign 
governments or public international organizations (5 U.S.C. 7342(c)(1));
    (3) Details to State and local governments and to domestic 
universities and other organizations under the Intergovernmental 
Personnel Act (5 U.S.C. 3374-3375);
    (4) Details to public international organizations in which the 
United States participates as a government (5 U.S.C. 3343);

[[Page 91]]

    (5) Details to foreign governments (this requires State Department 
approval);
    (6) Travel approved by the State Department under the Mutual 
Educational and Cultural Exchange Program of title 22, U.S. Code, 
Chapter 33;
    (7) Travel expenses of EPA witnesses for non-Government parties (5 
U.S.C. 5751).



Sec. 3.505  Special conditions which apply to teaching, lecturing and speechmaking.

    In addition to the limitations of Sec. Sec. 3.502 and 3.504(a), 
employees may engage in outside activities involving teaching, lecturing 
and speechmaking only if:
    (a) Such activities are conducted on the employees' own time without 
the use of Government property or personnel;
    (b) Government travel or per diem funds are not used;
    (c) The activities are not for the purpose of special preparation 
for a civil service or foreign service examination and do not involve 
the use of information obtained as a result of Government employment 
that has not been made available to the general public;
    (d) The activities do not involve instruction on dealing with 
specific matters pending before EPA.



Sec. 3.506  Special conditions applicable to outside writing and editing activities.

    (a) Subject to the limitations of Sec. Sec. 3.502 and 3.504(a) and 
this section, employees may serve as editors and editorial consultants, 
or on editorial boards, and may contribute articles to publications.
    (b) Writing and editing, whether related or unrelated to an 
employee's official duties, must not express or imply official support 
in either the material itself or in advertising or promotional material, 
including book jackets and covers.
    (c) Writing or editing, whether related to an employee's official 
duties or not, must either omit mention of the employee's official title 
or affiliation with the Agency, or include a disclaimer substantially as 
follows:

``This (article, book, etc.) was (written, edited) by (employee's name) 
in his/her private capacity. No official support or endorsement by the 
Environmental Protection Agency or any other agency of the Federal 
Government is intended or should be inferred.''



Sec. 3.507  Special conditions applicable to publishing.

    Employees may engage in publishing activities when:
    (a) No income is derived from publishing materials which EPA makes 
available to the general public or which are available to the employee 
because of his or her official duties but are not available to the 
general public; and
    (b) No income is derived from publishing proceedings or compilations 
of conferences, symposia or similar gatherings or publishing speeches 
which are sponsored by the Government or which involve the performance 
of official duties.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39624, Sept. 27, 1985]



Sec. 3.508  Administrative approval.

    In addition to avoiding prohibited outside employment, each employee 
must obtain administrative approval in accordance with appendix A to 
this subpart before engaging in the following types of outside 
employment:
    (a) Regular self-employment;
    (b) Consulting services;
    (c) Holding State or local public office;
    (d) Outside employment or other outside activity involving an EPA 
contractor or subcontractor or holder of an EPA assistance agreement or 
subagreement; and
    (e) Employment by a firm which is regulated by the EPA program 
Office or Regional Office in which the employee serves.

Employees are encouraged to seek the advice of Deputy Ethics Officials 
or the Designated Agency Ethics Official regarding other types of 
outside employment.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39624, Sept. 27, 1985]

[[Page 92]]



Appendix A to Subpart E--Procedures for Permission to Engage in Outside 
                  Employment or Other Outside Activity

    1. Form and content of request--A written request for administrative 
approval of outside employment must be addressed to the appropriate 
Deputy Ethics Official, or, in the immediate Office of the Administrator 
or Deputy Administrator, to the Designated Agency Ethics Official. The 
request must be sent through the employee's supervisors and must 
indicate:
    a. Employee's name, title and grade;
    b. Nature of the outside activity, including a full description of 
the services to be performed and the amount of compensation expected;
    c. The name and business of the person or organization for which the 
work will be done (in cases of self-employment, indicate the type of 
services to be rendered and estimate the number of clients or customers 
anticipated during the next 6 months);
    d. The estimated time to be devoted to the activity;
    e. Whether the service will be performed entirely outside of normal 
duty hours (if not, estimate the number of hours of absence from work 
required);
    f. The assistance agreements or contracts involved, if the outside 
employment will include consulting or professional services to 
institutions which have or may seek federal assistance agreements or 
contracts. Full details must be provided for any service which involves 
preparing grant applications, contract proposals or program reports. 
Indicate the basis for compensation (e.g., fee, per diem, per annum, 
etc.).
    2. Acting on employee requests--Requests are reviewed for 
consistency with Sec. 3.502. Reviewers are encouraged to obtain advice 
from the Designated Agency Ethics Official. The reviewer's decision must 
be in writing.
    3. Keeping the record up-to-date--If there is a change in the nature 
or scope of the duties or services performed or the nature of the 
employee's business, the employee must submit a revised request for 
approval.
    4. Enforcement--Failure to obtain administrative approval for 
outside employment or other outside activity where required is grounds 
for disciplinary action.
    5. Confidentiality of requests--Requests for approval are 
confidential and, unless the employee consents, may not be disclosed 
except to the Designated Agency Ethics Official or the Alternate Agency 
Ethics Official and designated staff who assist them under this part and 
to Deputy Ethics Officials and designated staff members who assist them 
under this part.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39624, Sept. 27, 1985]



    Subpart F--Standards of Conduct for Special Government Employees



Sec. 3.600  Applicability.

    The conflict of interest statutes and these regulations apply to 
special Government employees during their entire period of EPA service, 
from the date of the oath of office to the date of termination.



Sec. 3.601  Standards of conduct.

    The following standards of conduct apply to special Government 
employees:
    (a) Use of Government employment. Special Government employees may 
not use Government employment for a purpose that is, or gives the 
appearance of being, motivated by private gain for themselves or others.
    (b) Use of inside information. Special Government employees may not 
use inside information obtained as a result of Government employment for 
private gain. Inside information means information obtained as a result 
of Government employment which has not been made available to the 
general public.
    (c) Avoiding coercion. Special Government employees may not use 
Government employment to coerce anyone to provide a financial benefit to 
themselves or others.
    (d) Gifts, entertainment or favors. Except as provided below, 
special Government employees must not solicit or receive any gift, 
gratuity, entertainment (including meals), favor, loan or other thing of 
value, for themselves or others, from persons or organizations having 
contracts or assistance agreements with EPA or which conduct activities 
regulated by EPA. The following exceptions apply:
    (1) Receiving salary, bonuses or other compensation or benefits from 
non-Government employers;
    (2) Accepting modest entertainment, such as meals or refreshments, 
in connection with attendance at widely attended gatherings sponsored by 
industrial, technical or professional organizations, or in connection 
with attending public ceremonies or similar activities where the special 
Government employee officially participates on behalf

[[Page 93]]

of EPA (this does not include ordinary business lunches);
    (3) Accepting gifts, favors or entertainment where there is an 
obvious family or personal relationship between the employees or their 
families and the donor, and where that relationship clearly motivates 
the gift;
    (4) Accepting loans from banks or other financial institutions on 
customary terms;
    (5) Accepting unsolicited advertising or promotional material, such 
as pens, pencils, note pads, calendars or other items worth less than 
$10 (U.S. retail);
    (6) Accepting incidental transportation in kind from a private 
organization (such as rides to and from airports) furnished in 
connection with official duties and customarily provided by the private 
organization.
    (e) Gifts and honors from foreign governments. A special Government 
employee is not authorized to accept a gift, decoration, or other thing 
from a foreign government, except as authorized by 5 U.S.C. 7342. (See 
also 41 CFR part 101-49.)
    (f) Official travel expenses as authorized by Sec. 3.505.



Sec. 3.602  Statements of employment and financial interest.

    (a) Each special Government employee must submit a Statement of 
Employment and Financial Interests, EPA Form 3120-1, at the time of 
initial appointment except where the special Government employee is 
required to file a public Financial Disclosure Report (SF 278). Annual 
supplemental statements are also due by July 31 of each year. In 
addition, if changes occur in the employee's financial interests or 
investments, a supplemental report is also due by the end of the four 
month period in which the transaction occurs; that is, by November 30 
and March 31.
    (b) The Statement of Employment and Financial Interests must be 
submitted to the cognizant Deputy Ethics Official or to the Designated 
Agency Ethics Official, as appropriate. (See Sec. 3.201.) Public 
Financial Disclosure Reports must be submitted to the Designated Agency 
Ethics Official. (See Sec. 3.302.)

Special government employees often have income from other employers, and 
all such sources of income must be reported. For example, researchers 
and analysts must disclose the sources of their research contracts, and, 
where employees of universities or other public bodies or business 
organizations are working on projects supported by outside parties, the 
contributors must be identified.
    (c) The purpose of the Statement of Employment and Financial 
Interests is to assist the employee and the Agency in avoiding conflicts 
of interest. The statement is confidential and will not be disclosed 
except to the Designated Agency Ethics Official and the Alternate Agency 
Ethics Official and designated staff members who assist them under this 
part and to Deputy Ethics Officials and members of their staffs who 
assist them under this part. The statements will not otherwise be 
disclosed except to the Office of Inspector General, to committees or 
subcommittees of Congress on written request, or as authorized by the 
Administrator or the Director of the Office of Government Ethics for 
good cause.
    (d) Submitting a Statement of Employment and Financial Interests 
does not relieve employees of the duty to comply with the law. Employees 
must continue to refrain from participation where prohibited by 18 
U.S.C. 208(a). (See Sec. 3.606(d).)
    (e) Information concerning financial interests which have been 
exempted from the prohibition of 18 U.S.C. 208(a) may be omitted. (See 
Sec. 3.301(b) of this part.)
    (f) The following special Government employees are not required to 
file a Statement of Employment and Financial Interest:
    (1) Temporary and summer employees under 5 U.S.C. 5332 below the 
grade of GS-13;
    (2) Employees participating in intern or other training programs.



Sec. 3.603  Review, enforcement, reporting and investigation.

    (a) Statements of Employment and Financial Interests are reviewed by 
the cognizant Deputy Ethics Official or, in the immediate Office of the 
Administrator, by the Designated Agency Ethics Official. If the review 
discloses an actual or apparent conflict of interest,

[[Page 94]]

the matter will be discussed with the employee. If necessary, the Deputy 
Ethics Official or the Designated Agency Ethics Official may: (1) Direct 
the employee not to paticipate in certain matters; (2) arrange a 
reassignment with the employee's supervisor; or (3) the Designated 
Agency Ethics official may grant a waiver under 18 U.S.C. 208(b) or 
direct the employee to divest.
    (b) Special Government employees are encouraged to consult with the 
Designated Agency Ethics Official or the cognizant Deputy Ethics 
Official if they have questions concerning this subpart.
    (c) Violation of these regulations may be cause for disciplinary 
action, and the Inspector General may be asked to investigate alleged or 
apparent violations.

[49 FR 7530, Feb. 29, 1984, as amended at 50 FR 39624, Sept. 27, 1985]



Sec. 3.604  Application of conflict-of-interest statutes.

    The conflict-of-interest statutes (18 U.S.C. 203, 205, 207, 208 and 
209) are set forth in appendix A to subpart A of this part. They apply 
to special Government employees as follows:
    (a) Sections 203 and 205 of title 18, United States Code, provide 
generally that a special Government employee may not:
    (1) Represent anyone else before a court or any Government agency in 
connection with a particular matter involving a specific party or 
parties in which the United States is a party or has a direct and 
substantial interest, and in which the employee has ever participated 
personally and substantially as a Government employee; or
    (2) Act as agent or attorney, that is, communicate with intent to 
influence on behalf of another, in connection with a particular matter 
involving a specific party or parties pending in EPA, if he or she has 
served as an EPA employee for more than 60 days during the preceding 365 
days. This restriction applies regardless of whether the special 
Government employee has participated in the matter.
    (b) Under 18 U.S.C. 207, former special Government employees may not 
act as agent or attorney, that is, communicate with intent to influence, 
on behalf of anyone other than the United States before any Federal 
agency or court in connection with a particular matter involving a 
specific party or parties in which the United States is a party or has a 
direct and substantial interest and in which they participated 
personally and substantially as Government employees. The two-year 
restriction of 18 U.S.C. 207(b) is unlikely to affect special Government 
employees because they are not likely to have exercised direct 
supervisory or operating responsibility. Likewise, the one-year 
quarantine of 18 U.S.C. 207(c) probably will not apply because special 
Government employees are unlikely to be designated as senior employees. 
See 5 CFR 737.33.
    (c) Under 18 U.S.C. 207(g), during the entire period of the special 
Government employee's appointment, partners of special Government 
employees are forbidden to act as agent or attorney in connection with 
particular matters in which the United States is a party or has a direct 
and substantial interest and in which the special Government employee is 
participating or has participated personally and substantially as a 
special Government employee or which are under the special Government 
employee's official responsibility. This restriction applies to policy 
and rulemaking matters as well as to contracts, grants and 
adjudications. However, it applies only during the period of a special 
Government employee's service.
    (d) Under 18 U.S.C. 208 special Government employees are forbidden 
to participate personally and substantially in any particular matter in 
which, to their knowledge, they, their spouses, minor children, 
partners, organizations in which they are serving as officers, 
directors, trustees, partners or employees or any persons or 
organizations with whom they are negotiating or have any arrangement 
concerning prospective employment, have a financial interest. However, 
the Designated Agency Ethics Official may waive this restriction if the 
interest is not so substantial as to be deemed likely to affect the 
integrity of the services. Requests for waiver must be addressed to the 
Designated Agency Ethics Official and must specifically set forth the 
nature

[[Page 95]]

and amount of the financial or employment interest and explain why a 
waiver should be granted.

The general exemptions of appendix A to Sec. 3.301(b) of this part apply 
to both regular and special Government employees.
    (e) Section 209 of title 18, United States Code, does not apply to 
special Government employees.



Sec. 3.605  Other statutes.

    (a) Bribery. Section 201 of title 18, United States Code, prohibits 
soliciting, receiving or agreeing to receive, directly or indirectly, 
anything of value in connection with the performance of official duties 
or in return for committing or aiding in the commission of a fraud on 
the United States.
    (b) Disclosure of confidential information. Section 1905 of title 
18, United States Code, prohibits disclosing, in any manner and to any 
extent not authorized by law, any information acquired in the course of 
Government employment or official duties which concerns or is related to 
the trade secrets, processes, operations, style or work or apparatus or 
to the identity, confidential statistical data, amount or source of any 
income, profits, losses or expenditures of any person, business entity 
or association.
    (c) Other statutes which apply to both regular and special 
Government employees are listed in appendix B to subpart A of this part.



PART 4--UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents




    Authority: Section 213, Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970, as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987, Title IV 
of Pub. L. 100-17, 101 Stat. 246-256 (42 U.S.C. 4601 note).



Sec. 4.1  Uniform relocation assistance and real property acquisition.

    Effective April 2, 1989, regulations and procedures for complying 
with the Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970 (Pub. L. 91-646, 84 Stat. 1894, 42 U.S.C. 4601), as 
amended by the Surface Transportation and Uniform Relocation Assistance 
Act of 1987 (Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are 
set forth in 49 CFR part 24.

[52 FR 48023, Dec. 17, 1987 and 54 FR 8912, Mar. 2, 1989]



PART 5--TUITION FEES FOR DIRECT TRAINING--Table of Contents




Sec.
5.1  Establishment of fees.
5.2  Definitions.
5.3  Schedule of fees.
5.4  Registration offices.
5.5  Procedure for payment.
5.6  Refunds.
5.7  Waiver of fee.
5.8  Appeal of waiver denial.

    Authority: Title V, 65 Stat. 290 (31 U.S.C. 483a).

    Source: 38 FR 32806, Nov. 28, 1973, unless otherwise noted.



Sec. 5.1   Establishment of fees.

    The Environmental Protection Agency shall charge the revised 
schedule of tuition fees for all persons attending EPA direct training 
courses which commence on or after January 1, 1974.



Sec. 5.2   Definitions.

    Direct Training means all technical and managerial training 
conducted directly by EPA for personnel of State and local governmental 
agencies, other Federal agencies, private industries, universities, and 
other non-EPA agencies and organizations.
    Registration office means any of the several offices in EPA which 
have been designated to receive applications for attendance at direct 
training courses. (See Sec. 5.4 for a listing of such courses.)



Sec. 5.3   Schedule of fees.

    Tuition fees for direct training will be established within the 
range of $15 to $70 per training day depending upon whether the course 
is predominantly a laboratory, lecture, or survey course, or a course 
with other similar variables. Each cognitive program and regional office 
will announce the tuition fee at the time the date for offering the 
course is announced. As a transition easement, tuition fees for all 
State and

[[Page 96]]

local government employees are established at a maximum of $25 per 
training day regardless of type of course until July 1, 1974. After that 
date they are to pay the full fee. Charges for field courses taught by 
EPA instructors are for actual expenses on a per course basis. Complete 
tuition fee schedules may be obtained from the registration offices 
listed in Sec. 5.4. Tuition fees will be subject to change either upward 
or downward, based on actual experience under the system.



Sec. 5.4   Registration offices.

    Direct training programs are offered by both EPA national program 
offices and regional EPA offices. Listed in this section are the EPA 
national program offices and regional offices to which applications are 
to be sent. The proper registration office may be determined from the 
specific course announcement.

                        National Program Offices

                               air program

    Direct Training Registration Office, Office of Air Programs, 
Research Triangle Park, NC 27717.

                      waste water treatment program

    Direct Training Registration Office, National Training Center, 
Robert A. Taft Sanitary Engineering Center, Environmental Protection 
Agency, 4676 Columbia Parkway, Cincinnati, OH 45226.

                     water supply treatment program

    Direct Training Registration Office, Environmental Protection 
Agency, 4676 Columbia Parkway, Cincinnati, OH 45226.

                     solid wastes management program

    U.S. Environmental Protection Agency, Office of Solid Waste 
Management Programs, Washington, DC 20460.

                            radiation program

    U.S. Environmental Protection Agency, Office of Radiation Programs, 
Washington, DC 20460.

                           pesticides program

    U.S. Environmental Protection Agency, Office of Pesticides Programs, 
Washington, DC 20460.

                          Regional EPA Offices

    EPA, Regional Manpower Office, Region I, JFK Federal Building--Room 
2303, Boston, MA 02203.
    EPA, Regional Manpower Office, Region II, 26 Federal Plaza, Room 
845D, New York, NY 10007.
    EPA, Regional Manpower Office, Region III, Sixth and Walnut Streets, 
Philadelphia, PA 19106
    EPA, Regional Manpower Office, Region IV, 1421 Peachtree Street, 
NE., 4th floor, Atlanta, GA 30309.
    EPA, Regional Manpower Office, Region V, 1 North Wacker Drive, 
Chicago, IL 60606.
    EPA, Regional Manpower Office, Region VI, 1600 Patterson, Suite 
1100, Dallas, TX 75201.
    EPA, Regional Manpower Office, Region VII, Room 249, 1735 Baltimore 
Avenue, Kansas City, MO 64108.
    EPA, Regional Manpower Office, Region VIII, Suite 900, 1860 Lincoln 
Street, Denver, CO 80203.
    EPA, Regional Manpower Office, Region IX, 100 California Street, San 
Francisco, CA 94111.
    EPA, Regional Manpower Office, Region X, 1200 Sixth Avenue, Seattle, 
WA 98101.



Sec. 5.5   Procedure for payment.

    Applications for direct training courses shall be completed and 
submitted in accordance with the instructions issued by the respective 
national program and/or regional offices. Fee payment in the amount 
indicated by the course announcement shall accompany completed 
applications (except in the case of waiver requests as described in 
Sec. 5.75). All applications for field courses will be submitted in a 
timely manner by the sponsoring agency. Expenses will be noted and 
charges assessed the sponsoring agency after the course is conducted. 
The charge will be payable upon submission. All applicants shall make 
payment by check, payable to the U.S. Environmental Protection Agency, 
except applicants from Federal, State, and local agencies may send a 
purchase order of other acceptable financial commitment. Such financial 
commitment statements shall include information as to the agency and 
account number to be charged and other necessary information for billing 
purposes.



Sec. 5.6   Refunds.

    An applicant may withdraw his application and receive full 
reimbursement

[[Page 97]]

of his fee provided that he notifies the appropriate registration office 
in writing no later than 10 days before commencement of the course for 
which he has registered.



Sec. 5.7   Waiver of fee.

    Waivers of the full tuition fee may be granted on a limited basis. 
Each waiver request must be justified and considered by cognitive EPA 
units on: (a) Severity of the pollution problem in the area in which the 
applicant employee is working; (b) bona-fide administrative or legal 
constraints of the applicant agency to pay the reduced fee; (c) service, 
resulting from the training that will be provided as a benefit to the 
Federal Government. No waivers will be granted for field courses. 
Waivers are provided as a transitional easement for exceptional cases 
and will not be granted after July 1, 1975.



Sec. 5.8   Appeal of waiver denial.

    Waiver denials may be appealed to the Office of Education and 
Manpower Planning, Washington, DC 20460, to adjudicate and expedite 
agency review. Appeal submissions should include copies of original 
application and justification for waiver, EPA registration office denial 
correspondence, and other pertinent information supporting the request 
for waiver.



PART 6--PROCEDURES FOR IMPLEMENTING THE REQUIREMENTS OF THE COUNCIL ON ENVIRONMENTAL QUALITY ON THE NATIONAL ENVIRONMENTAL POLICY ACT--Table of Contents




                           Subpart A--General

Sec.
6.100  Purpose and policy.
6.101  Definitions.
6.102  Applicability.
6.103  Responsibilities.
6.104  Early involvement of private parties.
6.105  Synopsis of environmental review procedures.
6.106  Deviations.
6.107  Categorical exclusions.
6.108  Criteria for initiating an EIS.

                       Subpart B--Content of EISs

6.200  The environmental impact statement.
6.201  Format.
6.202  Executive summary.
6.203  Body of EISs.
6.204  Incorporation by reference.
6.205  List of preparers.

Subpart C--Coordination With Other Environmental Review and Consultation 
                              Requirements

6.300  General.
6.301  Landmarks, historical, and archeological sites.
6.302  Wetlands, floodplains, important farmlands, coastal zones, wild 
          and scenic rivers, fish and wildlife, and endangered species.
6.303  Air quality.

         Subpart D--Public and Other Federal Agency Involvement

6.400  Public involvement.
6.401  Official filing requirements.
6.402  Availability of documents.
6.403  The commenting process.
6.404  Supplements.

  Subpart E--Environmental Review Procedures for Wastewater Treatment 
                       Construction Grants Program

6.500  Purpose.
6.501  Definitions.
6.502  Applicability and limitations.
6.503  Overview of the environmental review process.
6.504  Consultation during the facilities planning process.
6.505  Categorical exclusions.
6.506  Environmental review process.
6.507  Partitioning the environmental review process.
6.508  Findings of No Significant Impact (FNSI) determination.
6.509  Criteria for initiating Environmental Impact Statements (EIS).
6.510  Environmental Impact Statement (EIS) preparation.
6.511  Record of Decision (ROD) for EISs and identification of 
          mitigation measures.
6.512  Monitoring for compliance.
6.513  Public participation.
6.514  Delegation to States.

  Subpart F--Environmental Review Procedures for the New Source NPDES 
                                 Program

6.600  Purpose.
6.601  Definitions.
6.602  Applicability.
6.603  Limitations on actions during environmental review process.
6.604  Environmental review process.
6.605  Criteria for preparing EISs.
6.606  Record of decision.
6.607  Monitoring.

[[Page 98]]

 Subpart G--Environmental Review Procedures for Office of Research and 
                          Development Projects

6.700  Purpose.
6.701  Definition.
6.702  Applicability.
6.703  General.
6.704  Categorical exclusions.
6.705  Environmental assessment and finding of no significant impact.
6.706  Environmental impact statement.

Subpart H--Environmental Review Procedures for Solid Waste Demonstration 
                                Projects

6.800  Purpose.
6.801  Applicability.
6.802  Criteria for preparing EISs.
6.803  Environmental review process.
6.804  Record of decision.

  Subpart I--Environmental Review Procedures for EPA Facility Support 
                               Activities

6.900  Purpose.
6.901  Definitions.
6.902  Applicability.
6.903  Criteria for preparing EISs.
6.904  Environmental review process.
6.905  Record of decision.

  Subpart J--Assessing the Environmental Effects Abroad of EPA Actions

6.1001  Purpose and policy.
6.1002  Applicability.
6.1003  Definitions.
6.1004  Environmental review and assessment requirements.
6.1005  Lead or cooperating agency.
6.1006  Exemptions and considerations.
6.1007  Implementation.

Appendix A to Part 6--Statement of Procedures on Floodplain Management 
          and Wetlands Protection

    Authority: 42 U.S.C. 4321 et seq., 7401-7671q; 40 CFR part 1500.

    Source: 44 FR 64177, Nov. 6, 1979, unless otherwise noted.



                           Subpart A--General



Sec. 6.100  Purpose and policy.

    (a) The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
4321 et seq., as implemented by Executive Orders 11514 and 11991 and the 
Council on Environmental Quality (CEQ) Regulations of November 29, 1978 
(43 FR 55978) requires that Federal agencies include in their decision-
making processes appropriate and careful consideration of all 
environmental effects of proposed actions, analyze potential 
environmental effects of proposed actions and their alternatives for 
public understanding and scrutiny, avoid or minimize adverse effects of 
proposed actions, and restore and enhance environmental quality as much 
as possible. The Environmental Protection Agency (EPA) shall integrate 
these NEPA factors as early in the Agency planning processes as 
possible. The environmental review process shall be the focal point to 
assure NEPA considerations are taken into account. To the extent 
applicable, EPA shall prepare environmental impact statements (EISs) on 
those major actions determined to have significant impact on the quality 
of the human environment. This part takes into account the EIS 
exemptions set forth under section 511(c)(1) of the Clean Water Act 
(Pub. L. 92-500) and section 7(c)(1) of the Energy Supply and 
Environmental Coordination Act of 1974 (Pub. L. 93-319).
    (b) This part establishes EPA policy and procedures for the 
identification and analysis of the environmental impacts of EPA-related 
activities and the preparation and processing of EISs.



Sec. 6.101  Definitions.

    (a) Terminology. All terminology used in this part will be 
consistent with the terms as defined in 40 CFR part 1508 (the CEQ 
Regulations). Any qualifications will be provided in the definitions set 
forth in each subpart of this regulation.
    (b) The term CEQ Regulations means the regulations issued by the 
Council on Environmental Quality on November 29, 1978 (see 43 FR 55978), 
which implement Executive Order 11991. The CEQ Regulations will often be 
referred to throughout this regulation by reference to 40 CFR part 1500 
et al.
    (c) The term environmental review means the process whereby an 
evaluation is undertaken by EPA to determine whether a proposed Agency 
action may have a significant impact on the environment and therefore 
require the preparation of the EIS.
    (d) The term environmental information document means any written 
analysis prepared by an applicant, grantee or

[[Page 99]]

contractor describing the environmental impacts of a proposed action. 
This document will be of sufficient scope to enable the responsible 
official to prepare an environmental assessment as described in the 
remaining subparts of this regulation.
    (e) The term grant as used in this part means an award of funds or 
other assistance by a written grant agreement or cooperative agreement 
under 40 CFR chapter I, subpart B.



Sec. 6.102  Applicability.

    (a) Administrative actions covered. This part applies to the 
activities of EPA in accordance with the outline of the subparts set 
forth below. Each subpart describes the detailed environmental review 
procedures required for each action.
    (1) Subpart A sets forth an overview of the regulation. Section 
6.102(b) describes the requirements for EPA legislative proposals.
    (2) Subpart B describes the requirements for the content of an EIS 
prepared pursuant to subparts E, F, G, H, and I.
    (3) Subpart C describes the requirements for coordination of all 
environmental laws during the environmental review undertaken pursuant 
to subparts E, F, G, H, and I.
    (4) Subpart D describes the public information requirements which 
must be undertaken in conjunction with the environmental review 
requirements under subparts E, F, G, H, and I.
    (5) Subpart E describes the environmental review requirements for 
the wastewater treatment construction grants program under Title II of 
the Clean Water Act.
    (6) Subpart F describes the environmental review requirements for 
new source National Pollutant Discharge Elimination System (NPDES) 
permits under section 402 of the Clean Water Act.
    (7) Subpart G describes the environmental review requirements for 
research and development programs undertaken by the Agency.
    (8) Subpart H describes the environmental review requirements for 
solid waste demonstration projects undertaken by the Agency.
    (9) Subpart I describes the environmental review requirements for 
construction of special purpose facilities and facility renovations by 
the Agency.
    (b) Legislative proposals. As required by the CEQ Regulations, 
legislative EISs are required for any legislative proposal developed by 
EPA which significantly affects the quality of the human environment. A 
preliminary draft EIS shall be prepared by the responsible EPA office 
concurrently with the development of the legislative proposal and 
contain information required under subpart B. The EIS shall be processed 
in accordance with the requirements set forth under 40 CFR 1506.8.
    (c) Application to ongoing activities--(1) General. The effective 
date for these regulations is December 5, 1979. These regulations do not 
apply to an EIS or supplement to that EIS if the draft EIS was filed 
with the Office of External Affairs, (OEA) before July 30, 1979. No 
completed environmental documents need be redone by reason of these 
regulations.
    (2) With regard to activities under subpart E, these regulations 
shall apply to all EPA environmental review procedures effective 
December 15, 1979. However, for facility plans begun before December 15, 
1979, the responsible official shall impose no new requirements on the 
grantee. Such grantees shall comply with requirements applicable before 
the effective date of this regulation. Notwithstanding the above, this 
regulation shall apply to any facility plan submitted to EPA after 
September 30, 1980.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]



Sec. 6.103  Responsibilities.

    (a) General responsibilities. (1) The responsible official's duties 
include:
    (i) Requiring applicants, contractors, and grantees to submit 
environmental information documents and related documents and assuring 
that environmental reviews are conducted on proposed EPA projects at the 
earliest possible point in EPA's decision-making process. In this 
regard, the responsible official shall assure the early involvement and 
availability of information for private applicants and other non- 

[[Page 100]]

Federal entities requiring EPA approvals.
    (ii) When required, assuring that adequate draft EISs are prepared 
and distributed at the earliest possible point in EPA's decision-making 
process, their internal and external review is coordinated, and final 
EISs are prepared and distributed.
    (iii) When an EIS is not prepared, assuring documentation of the 
decision to grant a categorical exclusion, or assuring that findings of 
no significant impact (FNSIs) and environmental assessments are prepared 
and distributed for those actions requiring them.
    (iv) Consulting with appropriate officials responsible for other 
environmental laws set forth in subpart C.
    (v) Consulting with the Office of External Affairs (OEA) on actions 
involving unresolved conflicts concerning this part or other Federal 
agencies.
    (vi) When required, assuring that public participation requirements 
are met.
    (2) Office of External Affairs duties include: (i) Supporting the 
Administrator in providing EPA policy guidance and assuring that EPA 
offices establish and maintain adequate administrative procedures to 
comply with this part.
    (ii) Monitoring the overall timeliness and quality of the EPA effort 
to comply with this part.
    (iii) Providing assistance to responsible officials as required, 
i.e., preparing guidelines describing the scope of environmental 
information required by private applicants relating to their proposed 
actions.
    (iv) Coordinating the training of personnel involved in the review 
and preparation of EISs and other associated documents.
    (v) Acting as EPA liaison with the Council on Environmental Quality 
and other Federal and State entities on matters of EPA policy and 
administrative mechanisms to facilitate external review of EISs, to 
determine lead agency and to improve the uniformity of the NEPA 
procedures of Federal agencies.
    (vi) Advising the Administrator and Deputy Administrator on projects 
which involve more than one EPA office, are highly controversial, are 
nationally significant, or pioneer EPA policy, when these projects have 
had or should have an EIS prepared on them.
    (vii) Carrying out administrative duties relating to maintaining 
status of EISs within EPA, i.e., publication of notices of intent in the 
Federal Register and making available to the public status reports on 
EISs and other elements of the environmental review process.
    (3) Office of an Assistant Administrator duties include: (i) 
Providing specific policy guidance to their respective offices and 
assuring that those offices establish and maintain adequate 
administrative procedures to comply with this part.
    (ii) Monitoring the overall timeliness and quality of their 
respective office's efforts to comply with this part.
    (iii) Acting as liaison between their offices and the OEA and 
between their offices and other Assistant Administrators or Regional 
Administrators on matters of agencywide policy and procedures.
    (iv) Advising the Administrator and Deputy Administrator through the 
OEA on projects or activities within their respective areas of 
responsibilities which involve more than one EPA office, are highly 
controversial, are nationally significant, or pioneer EPA policy, when 
these projects will have or should have an EIS prepared on them.
    (v) Pursuant to Sec. 6.102(b) of this subpart, preparing legislative 
EISs as appropriate on EPA legislative initiatives.
    (4) The Office of Policy, Planning, and Evaluation duties include: 
responsibilities for coordinating the preparation of EISs required on 
EPA legislative proposals in accordance with Sec. 6.102(b).
    (b) Responsibilities for subpart E--(1) Responsible official. The 
responsible official for EPA actions covered by this subpart is the 
Regional Administrator.
    (2) Assistant Administrator. The responsibilities of the Assistant 
Administrator, as described in Sec. 6.103(a)(3), shall be assumed by the 
Assistant Administrator for Water for EPA actions covered by this 
subpart.
    (c) Responsibilities for subpart F--(1) Responsible official. The 
responsible official for activities covered by this subpart is the 
Regional Administrator.

[[Page 101]]

    (2) Assistant Administrator. The responsibilities of the Assistant 
Administrator, as described in Sec. 6.103(a)(3), shall be assumed by the 
Assistant Administrator for Enforcement and Compliance Monitoring for 
EPA actions covered by this subpart.
    (d) Responsibilities for subpart G. The Assistant Administrator for 
Research and Development will be the responsible official for activities 
covered by this subpart.
    (e) Responsibilities for subpart H. The Assistant Administrator for 
Solid Waste and Emergency Response will be the responsible official for 
activities covered by this subpart.
    (f) Responsibilities for subpart I. The responsible official for new 
construction and modification of special purpose facilities is as 
follows:
    (1) The Chief, Facilities Engineering and Real Estate Branch, 
Facilities and Support Services Division, Office of the Assistant 
Administrator for Administration and Resource Management (OARM) shall be 
the responsible official on all new construction of special purpose 
facilities and on all new modification projects for which the Facilities 
Engineering and Real Estate Branch has received a funding allowance and 
for all other field components not covered elsewhere in paragraph (f) of 
this section.
    (2) The Regional Administrator shall be the responsible official on 
all improvement and modification projects for which the regional office 
has received the funding allowance.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982; 50 
FR 26315, June 25, 1985; 51 FR 32609, Sept. 12, 1986]



Sec. 6.104  Early involvement of private parties.

    As required by 40 CFR 1501.2(d) and Sec. 6.103(a)(3)(v) of this 
regulation, responsible officials must ensure early involvement of 
private applicants or other non-Federal entities in the environmental 
review process related to EPA grant and permit actions set forth under 
subparts E, F, G, and H. The responsible official in conjunction with 
OEA shall:
    (a) Prepare where practicable, generic guidelines describing the 
scope and level of environmental information required from applicants as 
a basis for evaluating their proposed actions, and make these guidelines 
available upon request.
    (b) Provide such guidance on a project-by-project basis to any 
applicant seeking assistance.
    (c) Upon receipt of an application for agency approval, or 
notification that an application will be filed, consult as required with 
other appropriate parties to initiate and coordinate the necessary 
environmental analyses.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]



Sec. 6.105  Synopsis of environmental review procedures.

    (a) Responsible official. The responsible official shall utilize a 
systematic, interdisciplinary approach to integrate natural and social 
sciences as well as environmental design arts in planning programs and 
making decisions which are subject to environmental review. The 
respective staffs may be supplemented by professionals from other 
agencies (see 40 CFR 1501.6) or consultants whenever in-house 
capabilities are insufficiently interdisciplinary.
    (b) Environmental information documents (EID). Environmental 
information documents (EIDs) must be prepared by applicants, grantees, 
or permittees and submitted to EPA as required in subparts E, F, G, H, 
and I. EIDs will be of sufficient scope to enable the responsible 
official to prepare an environmental assessment as described under 
Sec. 6.105(d) of this part and subparts E through I. EIDs will not have 
to be prepared for actions where a categorical exclusion has been 
granted.
    (c) Environmental reviews. Environmental reviews shall be conducted 
on the EPA activities outlined in Sec. 6.102 of this part and set forth 
under subparts E, F, G, H and I. This process shall consist of a study 
of the action to identify and evaluate the related environmental 
impacts. The process shall include a review of any related environmental 
information document to determine whether any significant impacts are 
anticipated and whether any changes can be made in the proposed action 
to eliminate significant adverse impacts;

[[Page 102]]

when an EIS is required, EPA has overall responsibility for this review, 
although grantees, applicants, permittees or contractors will contribute 
to the review through submission of environmental information documents.
    (d) Environmental assessments. Environmental assessments (i.e., 
concise public documents for which EPA is responsible) are prepared to 
provide sufficient data and analysis to determine whether an EIS or 
finding of no significant impact is required. Where EPA determines that 
a categorical exclusion is appropriate or an EIS will be prepared, there 
is no need to prepare a formal environmental assessment.
    (e) Notice of intent and EISs. When the environmental review 
indicates that a significant environmental impact may occur and 
significant adverse impacts can not be eliminated by making changes in 
the project, a notice of intent to prepare an EIS shall be published in 
the Federal Register, scoping shall be undertaken in accordance with 40 
CFR 1501.7, and a draft EIS shall be prepared and distributed. After 
external coordination and evaluation of the comments received, a final 
EIS shall be prepared and disseminated. The final EIS shall list any 
mitigation measures necessary to make the recommended alternative 
environmentally acceptable.
    (f) Finding of no significant impact (FNSI). When the environmental 
review indicates no significant impacts are anticipated or when the 
project is altered to eliminate any significant adverse impacts, a FNSI 
shall be issued and made available to the public. The environmental 
assessment shall be included as a part of the FNSI. The FNSI shall list 
any mitigation measures necessary to make the recommended alternative 
environmentally acceptable.
    (g) Record of decision. At the time of its decision on any action 
for which a final EIS has been prepared, the responsible official shall 
prepare a concise public record of the decision. The record of decision 
shall describe those mitigation measures to be undertaken which will 
make the selected alternative environmentally acceptable. Where the 
final EIS recommends the alternative which is ultimately chosen by the 
responsible official, the record of decision may be extracted from the 
executive summary to the final EIS.
    (h) Monitoring. The responsible official shall provide for 
monitoring to assure that decisions on any action where a final EIS has 
been prepared are properly implemented. Appropriate mitigation measures 
shall be included in actions undertaken by EPA.

[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26315, June 25, 1985; 51 
FR 32610, Sept. 12, 1986]



Sec. 6.106  Deviations.

    (a) General. The Assistant Administrator, OEA, is authorized to 
approve deviations from these regulations. Deviation approvals shall be 
made in writing by the Assistant Administrator, OEA.
    (b) Requirements. (1) Where emergency circumstances make it 
necessary to take an action with significant environmental impact 
without observing the substantive provisions of these regulations or the 
CEQ Regulations, the responsible official shall notify the Assistant 
Administrator, OEA, before taking such action. The responsible official 
shall consider to the extent possible alternative arrangements; such 
arrangements will be limited to actions necessary to control the 
immediate impacts of the emergency; other actions remain subject to the 
environmental review process. The Assistant Administrator, OEA, after 
consulting CEQ, will inform the responsible official, as expeditiously 
as possible of the disposition of his request.
    (2) Where circumstances make it necessary to take action without 
observing procedural provisions of these regulations, the responsible 
official shall notify the Assistant Administrator, OEA, before taking 
such action. If the Assistant Administrator, OEA, determines such a 
deviation would be in the best interest of the Government, he shall 
inform the responsible official, as soon as possible, of his approval.
    (3) The Assistant Administrator, OEA, shall coordinate his action on 
a deviation under Sec. 6.106(b)(1) or (2) of this part with the 
Director, Grants Administration Division, Office of Planning and 
Management, for any required grant-related deviation under 40 CFR

[[Page 103]]

30.1000, as well as the appropriate Assistant Administrator.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]



Sec. 6.107  Categorical exclusions.

    (a) General. Categories of actions which do not individually, 
cumulatively over time, or in conjunction with other Federal, State, 
local, or private actions have a significant effect on the quality of 
the human environment and which have been identified as having no such 
effect based on the requirements in Sec. 6.505, may be exempted from the 
substantive environmental review requirements of this part. 
Environmental information documents and environmental assessments or 
environmental impact statements will not be required for excluded 
actions.
    (b) Determination. The responsible official shall determine whether 
an action is eligible for a categorical exclusion as established by 
general criteria in Sec. 6.107 (d) and (e) and any applicable criteria 
in program specific subparts of part 6 of this title. A determination 
shall be made as early as possible following the receipt of an 
application. The responsible official shall document the decision to 
issue or deny an exclusion as soon as practicable following review in 
accordance with Sec. 6.400(f). For qualified actions, the documentation 
shall include the application, a brief description of the proposed 
action, and a brief statement of how the action meets the criteria for a 
categorical exclusion without violating criteria for not granting an 
exclusion.
    (c) Revocation. The responsible official shall revoke a categorical 
exclusion and shall require a full environmental review if, subsequent 
to the granting of an exclusion, the responsible official determines 
that: (1) The proposed action no longer meets the requirements for a 
categorical exclusion due to changes in the proposed action; or (2) 
determines from new evidence that serious local or environmental issues 
exist; or (3) that Federal, State, local, or tribal laws are being or 
may be violated.
    (d) General categories of actions eligible for exclusion. Actions 
consistent with any of the following categories are eligible for a 
categorical exclusion:
    (1) Actions which are solely directed toward minor rehabilitation of 
existing facilities, functional replacement of equipment, or towards the 
construction of new ancillary facilities adjacent or appurtenant to 
existing facilities;
    (2) Other actions specifically allowed in program specific subparts 
of this regulation; or
    (3) Other actions developed in accordance with paragraph (f) of this 
section.
    (e) General criteria for not granting a categorical exclusion. (1) 
The full environmental review procedures of this part must be followed 
if undertaking an action consistent with allowable categories in 
paragraph (d) of this section may involve serious local or environmental 
issues, or meets any of the criteria listed below:
     (i) The action is known or expected to have a significant effect on 
the quality of the human environment, either individually, cumulatively 
over time, or in conjunction with other federal, State, local, tribal or 
private actions;
    (ii) The action is known or expected to directly or indirectly 
affect:
     (A) Cultural resource areas such as archaeological and historic 
sites in accordance with Sec. 6.301,
    (B) Endangered or threatened species and their critical habitats in 
accordance with Sec. 6.302 or State lists,
    (C) Environmentally important natural resource areas such as 
floodplains, wetlands, important farmlands, aquifer recharge zones in 
accordance with Sec. 6.302, or
    (D) Other resource areas identified in supplemental guidance issued 
by the OEA;
    (iii) The action is known or expected not to be cost-effective or to 
cause significant public controversy; or
    (iv) Appropriate specialized program specific criteria for not 
granting an exclusion found in other subparts of this regulation are 
applicable to the action.
    (2) Notwithstanding the provisions of paragraph (d) of this section, 
if any of the conditions cited in paragraph (e)(1) of this section 
exist, the responsible official shall ensure:
    (i) That a categorical exclusion is not granted or, if previously 
granted, that it is revoked according to paragraph (c) of this section;

[[Page 104]]

    (ii) That an adequate EID is prepared; and
    (iii) That either an environmental assessment and FNSI or a notice 
of intent for an EIS and ROD is prepared and issued.
    (f) Developing new categories of excluded actions. The responsible 
official, or other interested parties, may request that a new general or 
specialized program specific category of excluded actions be created, or 
that an existing category be amended or deleted. The request shall be in 
writing to the Assistant Administrator, OEA, and shall contain adequate 
information to support the request. Proposed new categories shall be 
developed by OEA and published in the Federal Register as a proposed 
rule, amending paragraph (d) of this section when the proposed new 
category applies to all eligible programs or, amending appropriate 
paragraphs in other subparts of this part when the proposed new category 
applies to one specific program. The publication shall include a thirty 
(30) day public comment period. In addition to criteria for specific 
programs listed in other subparts of this part, the following general 
criteria shall be considered in evaluating proposals for new categories:
    (1) Any action taken seldom results in the effects identified in 
general or specialized program specific criteria identified through the 
application of criteria for not granting a categorical exclusion;
    (2) Based upon previous environmental reviews, actions consistent 
with the proposed category have not required the preparation of an EIS; 
and
    (3) Whether information adequate to determine if a potential action 
is consistent with the proposed category will normally be available when 
needed.

[50 FR 26315, June 25, 1985, as amended at 51 FR 32610, Sept. 12, 1986]



Sec. 6.108  Criteria for initiating an EIS.

    The responsible official shall assure that an EIS will be prepared 
and issued for actions under subparts E, G, H, and I when it is 
determined that any of the following conditions exist:
    (a) The Federal action may significantly affect the pattern and type 
of land use (industrial, commercial, agricultural, recreational, 
residential) or growth and distribution of population;
    (b) The effects resulting from any structure or facility constructed 
or operated under the proposed action may conflict with local, regional 
or State land use plans or policies;
    (c) The proposed action may have significant adverse effects on 
wetlands, including indirect and cumulative effects, or any major part 
of a structure or facility constructed or operated under the proposed 
action may be located in wetlands;
    (d) The proposed action may significantly affect threatened and 
endangered species or their habitats identified in the Department of the 
Interior's list, in accordance with Sec. 6.302, or a State's list, or a 
structure or a facility constructed or operated under the proposed 
action may be located in the habitat;
    (e) Implementation of the proposed action or plan may directly cause 
or induce changes that significantly:
    (1) Displace population;
    (2) Alter the character of existing residential areas;
    (3) Adversely affect a floodplain; or
    (4) Adversely affect significant amounts of important farmlands as 
defined in requirements in Sec. 6.302(c), or agricultural operations on 
this land.
    (f) The proposed action may, directly, indirectly or cumulatively 
have significant adverse effect on parklands, preserves, other public 
lands or areas of recognized scenic, recreational, archaeological, or 
historic value; or
    (g) The Federal action may directly or through induced development 
have a significant adverse effect upon local ambient air quality, local 
ambient noise levels, surface water or groundwater quality or quantity, 
water supply, fish, shellfish, wildlife, and their natural habitats.

[50 FR 26315, June 25, 1985, as amended at 51 FR 32611, Sept. 12, 1986]



                       Subpart B--Content of EISs



Sec. 6.200  The environmental impact statement.

    Preparers of EISs must conform with the requirements of 40 CFR part 
1502 in writing EISs.

[[Page 105]]



Sec. 6.201  Format.

    The format used for EISs shall encourage good analysis and clear 
presentation of alternatives, including the proposed action, and their 
environmental, economic and social impacts. The following standard 
format for EISs should be used unless the responsible official 
determines that there is a compelling reason to do otherwise:
    (a) Cover sheet;
    (b) Executive Summary;
    (c) Table of contents;
    (d) Purpose of and need for action;
    (e) Alternatives including proposed action;
    (f) Affected environment;
    (g) Environmental consequences of the alternatives;
    (h) Coordination (includes list of agencies, organizations, and 
persons to whom copies of the EIS are sent);
    (i) List of preparers;
    (j) Index (commensurate with complexity of EIS);
    (k) Appendices.



Sec. 6.202  Executive summary.

    The executive summary shall describe in sufficient detail (10-15 
pages) the critical facets of the EIS so that the reader can become 
familiar with the proposed project or action and its net effects. The 
executive summary shall focus on:
    (a) The existing problem;
    (b) A brief description of each alternative evaluated (including the 
preferred and no action alternatives) along with a listing of the 
environmental impacts, possible mitigation measures relating to each 
alternative, and any areas of controversy (including issues raised by 
governmental agencies and the public); and
    (c) Any major conclusions.

A comprehensive summary may be prepared in instances where the EIS is 
unusually long in nature. In accordance with 40 CFR 1502.19, the 
comprehensive summary may be circulated in lieu of the EIS; however, 
both documents shall be distributed to any Federal, State and local 
agencies who have EIS review responsibilities and also shall be made 
available to other interested parties upon request.



Sec. 6.203  Body of EISs.

    (a) Purpose and need. The EIS shall clearly specify the underlying 
purpose and need to which EPA is responding. If the action is a request 
for a permit or a grant, the EIS shall clearly specify the goals and 
objectives of the applicant.
    (b) Alternatives including the proposed action. In addition to 40 
CFR 1502.14, the EIS shall discuss:
    (1) Alternatives considered by the applicant. This section shall 
include a balanced description of each alternative considered by the 
applicant. These discussions shall include size and location of 
facilities, land requirements, operation and maintenance requirements, 
auxiliary structures such as pipelines or transmission lines, and 
construction schedules. The alternative of no action shall be discussed 
and the applicant's preferred alternative(s) shall be identified. For 
alternatives which were eliminated from detailed study, a brief 
discussion of the reasons for their having been eliminated shall be 
included.
    (2) Alternatives available to EPA. EPA alternatives to be discussed 
shall include: (i) Taking an action; or (ii) taking an action on a 
modified or alternative project, including an action not considered by 
the applicant; and (iii) denying the action.
    (3) Alternatives available to other permitting agencies. When 
preparing a joint EIS, and if applicable, the alternatives available to 
other Federal and/or State agencies shall be discussed.
    (4) Identifying preferred alternative. In the final EIS, the 
responsible official shall signify the preferred alternative.
    (c) Affected environment and environmental consequences of the 
alternatives. The affected environment on which the evaluation of each 
alternative shall be based includes, for example, hydrology, geology, 
air quality, noise, biology, socioeconomics, energy, land use, and 
archeology and historic subjects. The discussion shall be structured so 
as to present the total impacts of each alternative for easy comparison 
among all alternatives by the reader. The effects of a ``no action'' 
alternative should be included to facilitate reader comparison of the 
beneficial and adverse impacts of other alternatives to the applicant 
doing nothing. A description of

[[Page 106]]

the environmental setting shall be included in the ``no action'' 
alternative for the purpose of providing needed background information. 
The amount of detail in describing the affected environment shall be 
commensurate with the complexity of the situation and the importance of 
the anticipated impacts.
    (d) Coordination. The EIS shall include:
    (1) The objections and suggestions made by local, State, and Federal 
agencies before and during the EIS review process must be given full 
consideration, along with the issues of public concern expressed by 
individual citizens and interested environmental groups. The EIS must 
include discussions of any such comments concerning our actions, and the 
author of each comment should be identified. If a comment has resulted 
in a change in the project or the EIS, the impact statement should 
explain the reason.
    (2) Public participation through public hearings or scoping meetings 
shall also be included. If a public hearing has been held prior to the 
publication of the EIS, a summary of the transcript should be included 
in this section. For the public hearing which shall be held after the 
publication of the draft EIS, the date, time, place, and purpose shall 
be included here.
    (3) In the final EIS, a summary of the coordination process and EPA 
responses to comments on the draft EIS shall be included.

[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26316, June 25, 1985]



Sec. 6.204  Incorporation by reference.

    In addition to 40 CFR 1502.21, material incorporated into an EIS by 
reference shall be organized to the extent possible into a Supplemental 
Information Document and be made available for review upon request. No 
material may be incorporated by reference unless it is reasonably 
available for inspection by potentially interested persons within the 
period allowed for comment.



Sec. 6.205  List of preparers.

    When the EIS is prepared by contract, either under direct contract 
to EPA or through an applicant's or grantee's contractor, the 
responsible official must independently evaluate the EIS prior to its 
approval and take responsibility for its scope and contents. The EPA 
officials who undertake this evaluation shall also be described under 
the list of preparers.



Subpart C--Coordination With Other Environmental Review and Consultation 
                              Requirements



Sec. 6.300  General.

    Various Federal laws and executive orders address specific 
environmental concerns. The responsible official shall integrate to the 
greatest practicable extent the applicable procedures in this subpart 
during the implementation of the environmental review process under 
Subparts E through I. This subpart presents the central requirements of 
these laws and executive orders. It refers to the pertinent authority 
and regulations or guidance that contain the procedures. These laws and 
executive orders establish review procedures independent of NEPA 
requirements. The responsible official shall be familiar with any other 
EPA or appropriate agency procedures implementing these laws and 
executive orders.

[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26316, June 25, 1985]



Sec. 6.301  Landmarks, historical, and archeological sites.

    EPA is subject to the requirements of the Historic Sites Act of 
1935, 16 U.S.C. 461 et seq., the National Historic Preservation Act of 
1966, as amended, 16 U.S.C. 470 et seq., the Archaeological and Historic 
Preservation Act of 1974, 16 U.S.C. 469 et seq., and Executive Order 
11593, entitled ``Protection and Enhancement of the Cultural 
Environment.'' These statutes, regulations and executive orders 
establish review procedures independent of NEPA requirements.
    (a) National natural landmarks. Under the Historic Sites Act of 
1935, the Secretary of the Interior is authorized to designate areas as 
national natural landmarks for listing on the National Registry of 
Natural Landmarks. In conducting an environmental review of a proposed 
EPA action, the responsible

[[Page 107]]

official shall consider the existence and location of natural landmarks 
using information provided by the National Park Service pursuant to 36 
CFR 62.6(d) to avoid undesirable impacts upon such landmarks.
    (b) Historic, architectural, archeological, and cultural sites. 
Under section 106 of the National Historic Preservation Act and 
Executive Order 11593, if an EPA undertaking affects any property with 
historic, architectural, archeological or cultural value that is listed 
on or eligible for listing on the National Register of Historic Places, 
the responsible official shall comply with the procedures for 
consultation and comment promulgated by the Advisory Council on Historic 
Preservation in 36 CFR part 800. The responsible official must identify 
properties affected by the undertaking that are potentially eligible for 
listing on the National Register and shall request a determination of 
eligibility from the Keeper of the National Register, Department of the 
Interior, under the procedures in 36 CFR part 63.
    (c) Historic, prehistoric and archeological data. Under the 
Archeological and Historic Preservation Act, if an EPA activity may 
cause irreparable loss or destruction of significant scientific, 
prehistoric, historic or archeological data, the responsible official or 
the Secretary of the Interior is authorized to undertake data recovery 
and preservation activities. Data recovery and preservation activities 
shall be conducted in accordance with implementing procedures 
promulgated by the Secretary of the Interior. The National Park Service 
has published technical standards and guidelines regarding archeological 
preservation activities and methods at 48 FR 44716 (September 29, 1983).

[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26316, June 25, 1985]



Sec. 6.302  Wetlands, floodplains, important farmlands, coastal zones, wild and scenic rivers, fish and wildlife, and endangered species.

    The following procedures shall apply to EPA administrative actions 
in programs to which the pertinent statute or executive order applies.
    (a) Wetlands protection. Executive Order 11990, Protection of 
Wetlands, requires Federal agencies conducting certain activities to 
avoid, to the extent possible, the adverse impacts associated with the 
destruction or loss of wetlands and to avoid support of new construction 
in wetlands if a practicable alternative exists. EPA's Statement of 
Procedures on Floodplain Management and Wetlands Protection (dated 
January 5, 1979, incorporated as appendix A hereto) requires EPA 
programs to determine if proposed actions will be in or will affect 
wetlands. If so, the responsible official shall prepare a floodplains/
wetlands assessment, which will be part of the environmental assessment 
or environmental impact statement. The responsible official shall either 
avoid adverse impacts or minimize them if no practicable alternative to 
the action exists.
    (b) Floodplain management. Executive Order 11988, Floodplain 
Management, requires Federal agencies to evaluate the potential effects 
of actions they may take in a floodplain to avoid, to the extent 
possible, adverse effects associated with direct and indirect 
development of a floodplain. EPA's Statement of Procedures on Floodplain 
Management and Wetlands Protection (dated January 5, 1979, incorporated 
as appendix A hereto), requires EPA programs to determine whether an 
action will be located in or will affect a floodplain. If so, the 
responsible official shall prepare a floodplain/wetlands assessment. The 
assessment will become part of the environmental assessment or 
environmental impact statement. The responsible official shall either 
avoid adverse impacts or minimize them if no practicable alternative 
exists.
    (c) Important farmlands. It is EPA's policy as stated in the EPA 
Policy To Protect Environmentally Significant Agricultural Lands, dated 
September 8, 1978, to consider the protection of the Nation's 
significant/important agricultural lands from irreversible conversion to 
uses which result in its loss as an environmental or essential food 
production resource. In addition the Farmland Protection Policy Act, 
(FPPA) 7 U.S.C. 4201 et seq., requires federal agencies to use criteria 
developed by the Soil Conservation Service, U.S. Department of 
Agriculture, to:

[[Page 108]]

    (1) Identify and take into account the adverse effects of their 
programs on the preservation of farmlands from conversion to other uses;
    (2) Consider alternative actions, as appropriate, that could lessen 
such adverse impacts; and
    (3) Assure that their programs, to the extent possible, are 
compatible with State and local government and private programs and 
policies to protect farmlands. If an EPA action may adversely impact 
farmlands which are classified prime, unique or of State and local 
importance as defined in the Act, the responsible official shall in all 
cases apply the evaluative criteria promulgated by the U.S. Department 
of Agriculture at 7 CFR part 658. If categories of important farmlands, 
which include those defined in both the FPPA and the EPA policy, are 
identified in the project study area, both direct and indirect effects 
of the undertaking on the remaining farms and farm support services 
within the project area and immediate environs shall be evaluated. 
Adverse effects shall be avoided or mitigated to the extent possible.
    (d) Coastal zone management. The Coastal Zone Management Act, 16 
U.S.C. 1451 et seq., requires that all Federal activities in coastal 
areas be consistent with approved State Coastal Zone Management 
Programs, to the maximum extent possible. If an EPA action may affect a 
coastal zone area, the responsible official shall assess the impact of 
the action on the coastal zone. If the action significantly affects the 
coastal zone area and the State has an approved coastal zone management 
program, a consistency determination shall be sought in accordance with 
procedures promulgated by the Office of Coastal Zone Management in 15 
CFR part 930.
    (e) Wild and scenic rivers. (1) The Wild and Scenic Rivers Act, 16 
U.S.C. 1274 et seq., establishes requirements applicable to water 
resource projects affecting wild, scenic or recreational rivers within 
the National Wild and Scenic Rivers system as well as rivers designated 
on the National Rivers Inventory to be studied for inclusion in the 
national system. Under the Act, a federal agency may not assist, through 
grant, loan, license or otherwise, the construction of a water resources 
project that would have a direct and adverse effect on the values for 
which a river in the National System or study river on the National 
Rivers Inventory was established, as determined by the Secretary of the 
Interior for rivers under the jurisdiction of the Department of the 
Interior and by the Secretary of Agriculture for rivers under the 
jurisdiction of the Department of Agriculture. Nothing contained in the 
foregoing sentence, however, shall:
    (i) Preclude licensing of, or assistance to, developments below or 
above a wild, scenic or recreational river area or on any stream 
tributary thereto which will not invade the area or unreasonably 
diminish the scenic, recreational, and fish and wildlife values present 
in the area on October 2, 1968; or
    (ii) Preclude licensing of, or assistance to, developments below or 
above a study river or any stream tributary thereto which will not 
invade the area or diminish the scenic, recreational and fish and 
wildlife values present in the area on October 2, 1968.
    (2) The responsible official shall:
    (i) Determine whether there are any wild, scenic or study rivers on 
the National Rivers Inventory or in the planning area, and
    (ii) Not recommend authorization of any water resources project that 
would have a direct and adverse effect on the values for which such 
river was established, as determined by the administering Secretary in 
request of appropriations to begin construction of any such project, 
whether heretofore or hereafter authorized, without advising the 
administering Secretary, in writing of this intention at least sixty 
days in advance, and without specifically reporting to the Congress in 
writing at the time the recommendation or request is made in what 
respect construction of such project would be in conflict with the 
purposes of the Wild and Scenic Rivers Act and would affect the 
component and the values to be protected by the Responsible Official 
under the Act.
    (3) Applicable consultation requirements are found in section 7 of 
the Act. The Department of Agriculture has promulgated implementing 
procedures,

[[Page 109]]

under section 7 at 36 CFR part 297, which apply to water resource 
projects located within, above, below or outside a wild and scenic river 
or study river under the Department's jurisdiction.
    (f) Barrier islands. The Coastal Barrier Resources Act, 16 U.S.C. 
3501 et seq., generally prohibits new federal expenditures or financial 
assistance for any purpose within the Coastal Barrier Resources System 
on or after October 18, 1982. Specified exceptions to this prohibition 
are allowed only after consultation with the Secretary of the Interior. 
The responsible official shall ensure that consultation is carried out 
with the Secretary of the Interior before making available new 
expenditures or financial assistance for activities within areas covered 
by the Coastal Barriers Resources Act in accord with the U.S. Fish and 
Wildlife Service published guidelines defining new expenditures and 
financial assistance, and describing procedures for consultation at 48 
FR 45664 (October 6, 1983).
    (g) Fish and wildlife protection. The Fish and Wildlife Coordination 
Act, 16 U.S.C. 661 et seq., requires Federal agencies involved in 
actions that will result in the control or structural modification of 
any natural stream or body of water for any purpose, to take action to 
protect the fish and wildlife resources which may be affected by the 
action. The responsible official shall consult with the Fish and 
Wildlife Service and the appropriate State agency to ascertain the means 
and measures necessary to mitigate, prevent and compensate for project-
related losses of wildlife resources and to enhance the resources. 
Reports and recommendations of wildlife agencies should be incorporated 
into the environmental assessment or environmental impact statement. 
Consultation procedures are detailed in 16 U.S.C. 662.
    (h) Endangered species protection. Under the Endangered Species Act, 
16 U.S.C. 1531 et seq., Federal agencies are prohibited from 
jeopardizing threatened or endangered species or adversely modifying 
habitats essential to their survival. The responsible official shall 
identify all designated endangered or threatened species or their 
habitat that may be affected by an EPA action. If listed species or 
their habitat may be affected, formal consultation must be undertaken 
with the Fish and Wildlife Service or the National Marine Fisheries 
Service, as appropriate. If the consultation reveals that the EPA 
activity may jeopardize a listed species or habitat, mitigation measures 
should be considered. Applicable consultation procedures are found in 50 
CFR part 402.

[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26316, June 25, 1985]



Sec. 6.303  Air quality.

    (a) The Clean Air Act, as amended in 1990, 42 U.S.C. 7476(c), 
requires Federal actions to conform to any State implementation plan 
approved or promulgated under section 110 of the Act. For EPA actions, 
the applicable conformity requirements specified in 40 CFR part 51, 
subpart W, 40 CFR part 93, subpart B, and the applicable State 
implementation plan must be met.
    (b) In addition, with regard to wastewater treatment works subject 
to review under Subpart E of this part, the responsible official shall 
consider the air pollution control requirements specified in section 
316(b) of the Clean Air Act, 42 U.S.C. 7616, and Agency implementation 
procedures.
    (c)-(g) [Reserved]

[58 FR 63247, Nov. 30, 1993]



         Subpart D--Public and Other Federal Agency Involvement



Sec. 6.400  Public involvement.

    (a) General. EPA shall make diligent efforts to involve the public 
in the environmental review process consistent with program regulations 
and EPA policies on public participation. The responsibile official 
shall ensure that public notice is provided for in accordance with 40 
CFR 1506.6(b) and shall ensure that public involvement is carried

[[Page 110]]

out in accordance with EPA Public Participation Regulations, 40 CFR part 
25, and other applicable EPA public participation procedures.
    (b) Publication of notices of intent. As soon as practicable after 
his decision to prepare an EIS and before the scoping process, the 
responsible official shall send the notice of intent to interested and 
affected members of the public and shall request the OEA to publish the 
notice of intent in the Federal Register. The responsible official shall 
send to OEA the signed original notice of intent for Federal Register 
publication purposes. The scoping process should be initiated as soon as 
practicable in accordance with the requirements of 40 CFR 1501.7. 
Participants in the scoping process shall be kept informed of 
substantial changes which evolve during the EIS drafting process.
    (c) Public meetings or hearings. Public meetings or hearings shall 
be conducted consistent with Agency program requirements. There shall be 
a presumption that a scoping meeting will be conducted whenever a notice 
of intent has been published. The responsible official shall conduct a 
public hearing on a draft EIS. The responsible official shall ensure 
that the draft EIS is made available to the public at least 30 days in 
advance of the hearing.
    (d) Findings of no significant impact (FNSI). The responsible 
official shall allow for sufficient public review of a FNSI before it 
becomes effective. The FNSI and attendant publication must state that 
interested persons disagreeing with the decision may submit comments to 
EPA. The responsible official shall not take administrative action on 
the project for at least thirty (30) calendar days after release of the 
FNSI and may allow more time for response. The responsible official 
shall consider, fully, comments submitted on the FNSI before taking 
administrative action. The FNSI shall be made available to the public in 
accordance with the requirements and all appropriate recommendations 
contained in Sec. 1506.6 of this title.
    (e) Record of Decision (ROD). The responsible official shall 
disseminate the ROD to those parties which commented on the draft or 
final EIS.
    (f) Categorical exclusions. (1) For categorical exclusion 
determinations under subpart E (Wastewater Treatment Construction Grants 
Program), an applicant who files for and receives a determination of 
categorical exclusion under Sec. 6.107(a), or has one rescinded under 
Sec. 6.107(c), shall publish a notice indicating the determination of 
eligibility or rescission in a local newspaper of community-wide 
circulation and indicate the availability of the supporting 
documentation for public inspection. The responsible official shall, 
concurrent with the publication of the notice, make the documentation as 
outlined in Sec. 6.107(b) available to the public and distribute the 
notice of the determination to all known interested parties.
    (2) For categorical exclusion determinations under other subparts of 
this regulation, no public notice need be issued; however, information 
regarding these determinations may be obtained by contacting the U.S. 
Environmental Protection Agency's Office of Research Program Management 
for ORD actions, or the Office of Federal Activities for other program 
actions.

[44 FR 64177, Nov. 6, 1979, as amended at 51 FR 32611, Sept. 12, 1986; 
56 FR 20543, May 6, 1991]



Sec. 6.401  Official filing requirements.

    (a) General. OEA is responsible for the conduct of the official 
filing system for EISs. This system was established as a central 
repository for all EISs which serves not only as means of advising the 
public of the availability of each EIS but provides a uniform method for 
the computation of minimum time periods for the review of EISs. OEA 
publishes a weekly notice in the Federal Register listing all EISs 
received during a given week. The 45-day and 30-day review periods for 
draft and final EISs, respectively, are computed from the Friday 
following a given reporting week. Pursuant to 40 CFR 1506.9, responsible 
officials shall comply with the guidelines established by OEA on the 
conduct of the filing system.
    (b) Minimum time periods. No decision on EPA actions shall be made 
until the later of the following dates:

[[Page 111]]

    (1) Ninety (90) days after the date established in Sec. 6.401(a) of 
this part from which the draft EIS review time period is computed.
    (2) Thirty (30) days after the date established in Sec. 6.401(a) of 
this part from which the final EIS review time period is computed.
    (c) Filing of EISs. All EISs, including supplements, must be 
officially filed with OEA. Responsible officials shall transmit each EIS 
in five (5) copies to the Director, Office of Environmental Review, EIS 
Filing Section (A-104). OEA will provide CEQ with one copy of each EIS 
filed. No EIS will be officially filed by OER unless the EIS has been 
made available to the public. OEA will not accept unbound copies of EISs 
for filing.
    (d) Extensions or waivers. The responsible official may 
independently extend review periods. In such cases, the responsible 
official shall notify OEA as soon as possible so that adequate notice 
may be published in the weekly Federal Register report. OEA upon a 
showing of compelling reasons of national policy may reduce the 
prescribed review periods. Also, OEA upon a showing by any other Federal 
agency of compelling reasons of national policy may extend prescribed 
review periods, but only after consultation with the responsible 
official. If the responsible official does not concur with the extension 
of time, OEA may not extend a prescribed review period more than 30 days 
beyond the minimum prescribed review period.
    (e) Rescission of filed EISs. The responsible official shall file 
EISs with OEA at the same time they are transmitted to commenting 
agencies and made available to the public. The responsible official is 
required to reproduce an adequate supply of EISs to satisfy these 
distribution requirements prior to filing an EIS. If the EIS is not made 
available, OEA will consider retraction of the EIS or revision of the 
prescribed review periods based on the circumstances.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]



Sec. 6.402  Availability of documents.

    (a) General. The responsible official will ensure sufficient copies 
of the EIS are distributed to interested and affected members of the 
public and are made available for further public distribution. EISs, 
comments received, and any underlying documents should be available to 
the public pursuant to the provisions of the Freedom of Information Act 
(5 U.S.C. 552(b)), without regard to the exclusion for interagency 
memoranda where such memoranda transmit comments of Federal agencies on 
the environmental impact of the proposed actions. To the extent 
practicable, materials made available to the public shall be provided 
without charge; otherwise, a fee may be imposed which is not more than 
the actual cost of reproducing copies required to be sent to another 
Federal agency.
    (b) Public information. Lists of all notices, determinations and 
other reports/documentation, related to these notices and 
determinations, involving CEs, EAs, FNSIs, notices of intent, EISs, and 
RODs prepared by EPA shall be available for public inspection and 
maintained by the responsible official as a monthly status report. OEA 
shall maintain a comprehensive list of notices of intent and draft and 
final EISs provided by all responsible officials for public inspection 
including publication in the Federal Register. In addition, OEA will 
make copies of all EPA-prepared EISs available for public inspection; 
the responsible official shall do the same for any EIS he/she 
undertakes.

[44 FR 64177, Nov. 6, 1979, as amended at 51 FR 32611, Sept. 12, 1986]



Sec. 6.403  The commenting process.

    (a) Inviting comments. After preparing a draft EIS and before 
preparing a final EIS, the responsible official shall obtain the 
comments of Federal agencies, other governmental entities and the public 
in accordance with 40 CFR 1503.1.
    (b) Response to comments. The responsible official shall respond to 
comments in the final EIS in accordance with 40 CFR 1503.4.



Sec. 6.404  Supplements.

    (a) General. The responsible official shall consider preparing 
supplements to draft and final EISs in accordance with 40 CFR 1502.9(c). 
A supplement

[[Page 112]]

shall be prepared, circulated and filed in the same fashion (exclusive 
of scoping) as draft and final EISs.
    (b) Alternative procedures. In the case where the responsible 
official wants to deviate from existing procedures, OEA shall be 
consulted. OEA shall consult with CEQ on any alternative arrangements.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9829, Mar. 8, 1982]



  Subpart E--Environmental Review Procedures for Wastewater Treatment 
                       Construction Grants Program

    Source: 50 FR 26317, June 25, 1985, unless otherwise noted.



Sec. 6.500  Purpose.

    This subpart amplifies the procedures described in subparts A 
through D with detailed environmental review procedures for the 
Municipal Wastewater Treatment Works Construction Grants Program under 
Title II of the Clean Water Act.



Sec. 6.501  Definitions.

    (a) Step 1 facilities planning means preparation of a plan for 
facilities as described in 40 CFR part 35, subpart E or I.
    (b) Step 2 means a project to prepare design drawings and 
specifications as described in 40 CFR part 35, subpart E or I.
    (c) Step 3 means a project to build a publicly owned treatment works 
as described in 40 CFR part 35, subpart E or I.
    (d) Step 2+3 means a project which combines preparation of design 
drawings and specifications as described in Sec. 6.501(b) and building 
as described in Sec. 6.501(c).
    (e) Applicant means any individual, agency, or entity which has 
filed an application for grant assistance under 40 CFR part 35, subpart 
E or I.
    (f) Grantee means any individual, agency, or entity which has been 
awarded wastewater treatment construction grant assistance under 40 CFR 
part 35, subpart E or I.
    (g) Responsible Official means a Federal or State official 
authorized to fulfill the requirements of this subpart. The responsible 
federal official is the EPA Regional Administrator and the responsible 
State official is as defined in a delegation agreement under 205(g) of 
the Clean Water Act. The responsibilities of the State official are 
subject to the limitations in Sec. 6.514 of this subpart.
    (h) Approval of the facilities plan means approval of the facilities 
plan for a proposed wastewater treatment works pursuant to 40 CFR part 
35, subpart E or I.



Sec. 6.502  Applicability and limitations.

    (a) Applicability. This subpart applies to the following actions:
    (1) Approval of a facilities plan or an amendment to the plan;
    (2) Award of grant assistance for a project where signficant change 
has occurred in the project or its impact since prior compliance with 
this part; and
    (3) Approval of preliminary Step 3 work prior to the award of grant 
assistance pursuant to 40 CFR part 35, subpart E or I.
    (b) Limitations. (1) Except as provided in Sec. 6.504(c), all 
recipients of Step 1 grant assistance must comply with the requirements, 
steps, and procedures described in this subpart.
    (2) As specified in 40 CFR 35.2113, projects that have not received 
Step 1 grant assistance must comply with the requirements of this 
subpart prior to submission of an application for Step 3 or Step 2+3 
grant assistance.
    (3) Except as otherwise provided in Sec. 6.507, no step 3 or 2+3 
grant assistance may be awarded for the construction of any component/
portion of a proposed wastewater treatment system(s) until the 
responsible official has:
    (i) Completed the environmental review for all complete wastewater 
treatment system alternatives under consideration for the facilities 
planning area, or any larger study area identified for the purposes of 
conducting an adequate environmental review as required under this 
subpart; and
    (ii) Recorded the selection of the preferred alternative(s) in the 
appropriate decision document (ROD for EISs, FNSI for environmental 
assessments,

[[Page 113]]

or written determination for categorical exclusions).
    (4) In accord with Sec. 6.302(f), on or after October 18, 1982, no 
new expenditures or financial assistance involving the construction 
grants program can be made within the Coastal Barrier Resource System, 
or for projects outside the system which would have the effect of 
encouraging development in the system, other than specified exceptions 
made by the EPA after consultation with the Secretary of the Interior.

[50 FR 26317, June 25, 1985, as amended at 51 FR 32611, Sept. 12, 1986]



Sec. 6.503  Overview of the environmental review process.

    The process for conducting an environmental review of wastewater 
treatment construction grant projects includes the following steps:
    (a) Consultation. The Step 1 grantee or the potential Step 3 or Step 
2+3 applicant is encouraged to consult with the State and EPA early in 
project formulation or the facilities planning stage to determine 
whether a project is eligible for a categorical exclusion from the 
remaining substantive environmental review requirements of this part 
(Sec. 6.505), to determine alternatives to the proposed project for 
evaluation, to identify potential environmental issues and opportunities 
for public recreation and open space, and to determine the potential 
need for partitioning the environmental review process and/or the need 
for an Environmental Impact Statement (EIS).
    (b) Determining categorical exclusion eligibility. At the request of 
a potential Step 3 or Step 2+3 grant applicant, or a Step 1 facilities 
planning grantee, the responsible official will determine if a project 
is eligible for a categorical exclusion in accordance with Sec. 6.505. A 
Step 1 facilities planning grantee awarded a Step 1 grant on or before 
December 29, 1981 may request a categorical exclusion at any time during 
Step 1 facilities planning. A potential Step 3 or Step 2+3 grant 
applicant may request a categorical exclusion at any time before the 
submission of a Step 3 or Step 2+3 grant application.
    (c) Documenting environmental information. If the project is 
determined to be ineligible for a categorical exclusion, or if no 
request for a categorical exclusion is made, the potential Step 3 or 
Step 2+3 applicant or the Step 1 grantee subsequently prepares an 
Environmental Information Document (EID) (Sec. 6.506) for the project.
    (d) Preparing environmental assessments. Except as provided in 
Sec. 6.506(c)(4) and following a review of the EID by EPA or by a State 
with delegated authority, EPA prepares an environmental assessment 
(Sec. 6.506), or a State with delegated authority (Sec. 6.514) prepares 
a preliminary environmental assessment. EPA reviews and finalizes any 
preliminary assessments. EPA subsequently:
    (1) Prepares and issues a Finding of No Significant Impact (FNSI) 
(Sec. 6.508); or
    (2) Prepares and issues a Notice of Intent to prepare an original or 
supplemental EIS (Sec. 6.510) and Record of Decision (ROD) (Sec. 6.511).
    (e) Monitoring. The construction and post-construction operation and 
maintenance of the facilities are monitored (Sec. 6.512) to ensure 
implementation of mitigation measures (Sec. 6.511) identified in the 
FNSI or ROD.

[50 FR 26317, June 25, 1985, as amended at 51 FR 32611, Sept. 12, 1986]



Sec. 6.504  Consultation during the facilities planning process.

    (a) General. Consistent with 40 CFR 1501.2 and 35.2030(c), the 
responsible official shall initiate the environmental review process 
early to identify environmental effects, avoid delays, and resolve 
conflicts. The environmental review process should be integrated 
throughout the facilities planning process. Two processes for 
consultation are described in this section to meet this objective. The 
first addresses projects awarded Step 1 grant assistance on or before 
December 29, 1981. The second applies to projects not receiving grant 
assistance for facilities planning on or before December 29, 1981 and, 
therefore, subject to the regulations implementing the Municipal 
Wastewater Treatment Construction Grant Amendments of 1981 (40 CFR part 
35, subpart I).
    (b) Projects receiving Step 1 grant assistance on or before December 
29, 1981. (1) During facilities planning, the

[[Page 114]]

grantee shall evaluate project alternatives and the existence of 
environmentally important resource areas including those identified in 
Sec. 6.108 and Sec. 6.509 of this subpart, and potential for open space 
and recreation opportunities in the facilities planning area. This 
evaluation is intended to be brief and concise and should draw on 
existing information from EPA, State agencies, regional planning 
agencies, areawide water quality management agencies, and the Step 1 
grantee. The Step 1 grantee should submit this information to EPA or a 
delegated State at the earliest possible time during facilities planning 
to allow EPA to determine if the action is eligible for a categorical 
exclusion. The evaluation and any additional analysis deemed necessary 
by the responsible official may be used by EPA to determine whether the 
action is eligible for a categorical exclusion from the substantive 
environmental review requirements of this part. If a categorical 
exclusion is granted, the grantee will not be required to prepare a 
formal EID nor will the responsible official be required to prepare an 
environmental assessment under NEPA. If an action is not granted a 
categorical exclusion, this evaluation may be used to determine the 
scope of the EID required of the grantee. This information can also be 
used to make an early determination of the need for partitioning the 
environmental review or for an EIS. Whenever possible, the Step 1 
grantee should discuss this initial evaluation with both the delegated 
State and EPA.
    (2) A review of environmental information developed by the grantee 
should be conducted by the responsible official whenever meetings are 
held to assess the progress of facilities plan development. These 
meetings should be held after completion of the majority of the EID 
document and before a preferred alternative is selected. Since any 
required EIS must be completed before the approval of a facilities plan, 
a decision whether to prepare an EIS is encouraged early during the 
facilities planning process. These meetings may assist in this early 
determination. EPA should inform interested parties of the following:
    (i) The preliminary nature of the Agency's position on preparing an 
EIS;
    (ii) The relationship between the facilities planning and 
environmental review processes;
    (iii) The desirability of public input; and
    (iv) A contact person for further information.
    (c) Projects not receiving grant assistance for Step 1 facilities 
planning on or before December 29, 1981. Potential Step 3 or Step 2+3 
grant applicants should, in accordance with Sec. 35.2030(c), consult 
with EPA and the State early in the facilities planning process to 
determine the appropriateness of a categorical exclusion, the scope of 
an EID, or the appropriateness of the early preparation of an 
environmental assessment or an EIS. The consultation would be most 
useful during the evaluation of project alternatives prior to the 
selection of a preferred alternative to assist in resolving any 
identified environmental problems.



Sec. 6.505  Categorical exclusions.

    (a) General. At the request of an existing Step 1 facilities 
planning grantee or of a potential Step 3 or Step 2+3 grant applicant, 
the responsible official, as provided for in Sec. Sec. 6.107(b), 
6.400(f) and 6.504(a), shall determine from existing information and 
document whether an action is consistent with the categories eligible 
for exclusion from NEPA review identified in Sec. 6.107(d) or 
Sec. 6.505(b) and not inconsistent with the criteria in Sec. 6.107(e) or 
Sec. 6.505(c).
    (b) Specialized categories of actions eligible for exclusion. For 
this subpart, eligible actions consist of any of the categories in 
Sec. 6.107(d), or:
    (1) Actions for which the facilities planning is consistent with the 
category listed in Sec. 6.107(d)(1) which do not affect the degree of 
treatment or capacity of the existing facility including, but not 
limited to, infiltration and inflow corrections, grant-eligible 
replacement of existing mechanical equipment or structures, and the 
construction of small structures on existing sites;
    (2) Actions in sewered communities of less than 10,000 persons which 
are for minor upgrading and minor expansion

[[Page 115]]

of existing treatment works. This category does not include actions that 
directly or indirectly involve the extension of new collection systems 
funded with federal or other sources of funds;
    (3) Actions in unsewered communities of less than 10,000 persons 
where on-site technologies are proposed; or
    (4) Other actions are developed in accordance with Sec. 6.107(f).
    (c) Specialized Criteria for not granting a categorical exclusion. 
(1) The full environmental review procedures of this part must be 
followed if undertaking an action consistent with the categories 
described in paragraph (b) of this section meets any of the criteria 
listed in Sec. 6.107(e) or when:
    (i) The facilities to be provided will (A) create a new, or (B) 
relocate an existing, discharge to surface or ground waters;
    (ii) The facilities will result in substantial increases in the 
volume of discharge or the loading of pollutants from an existing source 
or from new facilities to receiving waters; or
    (iii) The facilities would provide capacity to serve a population 
30% greater than the existing population.
    (d) Proceeding with grant awards. (1) After a categorical exclusion 
on a proposed treatment works has been granted, and notices published in 
accordance with Sec. 6.400(f), grant awards may proceed without being 
subject to any further environmental review requirements under this 
part, unless the responsible official later determines that the project, 
or the conditions at the time the categorical determination was made, 
have changed significantly since the independent EPA review of 
information submitted by the grantee in support of the exclusion.
    (2) For all categorical exclusion determinations:
    (i) That are five or more years old on projects awaiting Step 2+3 or 
Step 3 grant funding, the responsible official shall re-evaluate the 
project, environmental conditions and public views and, prior to grant 
award, either:
    (A) Reaffirm--issue a public notice reaffirming EPA's decision to 
proceed with the project without need for any further environmental 
review;
    (B) Supplement--update the information in the decision document on 
the categorically excluded project and prepare, issue, and distribute a 
revised notice in accordance with Sec. 6.107(f); or
    (C) Reassess--revoke the categorical exclusion in accordance with 
Sec. 6.107(c) and require a complete environmental review to determine 
the need for an EIS in accordance with Sec. 6.506, followed by 
preparation, issuance and distribution of an EA/FNSI or EIS/ROD.
    (ii) That are made on projects that have been awarded a Step 2+3 
grant, the responsible official shall, at the time of plans and 
specifications review under Sec. 35.2202(b) of this title, assess 
whether the environmental conditions or the project's anticipated impact 
on the environment have changed and, prior to plans and specifications 
approval, advise the Regional Administrator if additional environmental 
review is necessary.

[50 FR 26317, June 25, 1985, as amended at 51 FR 32611, Sept. 12, 1986]



Sec. 6.506  Environmental review process.

    (a) Review of completed facilities plans. The responsible official 
shall ensure a review of the completed facilities plan with particular 
attention to the EID and its utilization in the development of 
alternatives and the selection of a preferred alternative. An adequate 
EID shall be an integral part of any facilities plan submitted to EPA or 
to a State. The EID shall be of sufficient scope to enable the 
responsible official to make determinations on requests for partitioning 
the environmental review process in accordance with Sec. 6.507 and for 
preparing environmental assessments in accordance with Sec. 6.506(b).
    (b) Environmental assessment. The environmental assessment process 
shall cover all potentially significant environmental impacts. The 
responsible official shall prepare a preliminary environmental 
assessment on which to base a recommendation to finalize and issue the 
environmental assessment/FNSI. For those States delegated environmental 
review responsibilities under Sec. 6.514, the State responsible official 
shall prepare the preliminary environmental assessment in sufficient 
detail to serve as an adequate basis for EPA's independent NEPA review 
and decision to finalize and issue an environmental assessment/FNSI or 
to prepare and

[[Page 116]]

issue a notice of intent for an EIS/ROD. The EPA also may require 
submission of supplementary information before the facilities plan is 
approved if needed for its independent review of the State's preliminary 
assessment for compliance with environmental review requirements. 
Substantial requests for supplementary information by EPA, including the 
review of the facilities plan, shall be made in writing. Each of the 
following subjects outlined below, and requirements of subpart C of this 
part, shall be reviewed by the responsible official to identify 
potentially significant environmental concerns and their associated 
potential impacts, and the responsible official shall furthermore 
address these concerns and impacts in the environmental assessment:
    (1) Description of the existing environment. For the delineated 
facilities planning area, the existing environmental conditions relevant 
to the analysis of alternatives, or to determining the environmental 
impacts of the proposed action, shall be considered.
    (2) Description of the future environment without the project. The 
relevant future environmental conditions shall be described. The no 
action alternative should be discussed.
    (3) Purpose and need. This should include a summary discussion and 
demonstration of the need, or absence of need, for wastewater treatment 
in the facilities planning area, with particular emphasis on existing 
public health or water quality problems and their severity and extent.
    (4) Documentation. Citations to information used to describe the 
existing environment and to assess future environmental impacts should 
be clearly referenced and documented. These sources should include, as 
appropriate but not limited to, local, tribal, regional, State, and 
federal agencies as well as public and private organizations and 
institutions with responsibility or interest in the types of conditions 
listed in Sec. 6.509 and in subpart C of this part.
    (5) Analysis of alternatives. This discussion shall include a 
comparative analysis of feasible alternatives, including the no action 
alternative, throughout the study area. The alternatives shall be 
screened with respect to capital and operating costs; direct, indirect, 
and cumulative environmental effects; physical, legal, or institutional 
constraints; and compliance with regulatory requirements. Special 
attention should given to: the environmental consequences of long-term, 
irreversible, and induced impacts; and for projects initiated after 
September 30, 1978, that grant applicants have satisfactorily 
demonstrated analysis of potential recreation and open-space 
opportunities in the planning of the proposed treatment works. The 
reasons for rejecting any alternatives shall be presented in addition to 
any significant environmental benefits precluded by rejection of an 
alternative. The analysis should consider when relevant to the project:
    (i) Flow and waste reduction measures, including infiltration/inflow 
reduction and pretreatment requirements;
    (ii) Appropriate water conservation measures;
    (iii) Alternative locations, capacities, and construction phasing of 
facilities;
    (iv) Alternative waste management techniques, including 
pretreatment, treatment and discharge, wasterwater reuse, land 
application, and individual systems;
    (v) Alternative methods for management of sludge, other residual 
materials, including utilization options such as land application, 
composting, and conversion of sludge for marketing as a soil conditioner 
or fertilizer;
    (vi) Improving effluent quality through more efficient operation and 
maintenance;
    (vii) Appropriate energy reduction measures; and
    (viii) Multiple use including recreation, other open space, and 
environmental education.
    (6) Evaluating environmental consequences of proposed action. A full 
range of relevant impacts of the proposed action shall be discussed, 
including measures to mitigate adverse impacts, any irreversible or 
irretrievable commitments of resources to the project and the 
relationship between local short-term uses of the environment and the 
maintenance and enhancement of long-term productivity.

[[Page 117]]

Any specific requirements, including grant conditions and areawide waste 
treatment management plan requirements, should be identified and 
referenced. In addition to these items, the responsible official may 
require that other analyses and data in accordance with subpart C which 
are needed to satisfy environmental review requirements be included with 
the facilities plan. Such requirements should be discussed whenever 
meetings are held with Step 1 grantees or potential Step 3 or Step 2 + 3 
applicants.
    (7) Minimizing adverse effects of the proposed action. (i) 
Structural and nonstructural measures, directly or indirectly related to 
the facilities plan, to mitigate or eliminate adverse effects on the 
human and natural environments, shall be identified during the 
environmental review. Among other measures, structual provisions include 
changes in facility design, size, and location; non-structural 
provisions include staging facilities, monitoring and enforcement of 
environmental regulations, and local commitments to develop and enforce 
land use regulations.
    (ii) The EPA shall not accept a facilities plan, nor award grant 
assistance for its implementation, if the applicant/grantee has not 
made, or agreed to make, changes in the project, in accordance with 
determinations made in a FNSI based on its supporting environmental 
assessment or the ROD for a EIS. The EPA shall condition a grant, or 
seek other ways, to ensure that the grantee will comply with such 
environmental review determinations.
    (c) FNSI/EIS determination. The responsible official shall apply the 
criteria under Sec. 6.509 to the following:
    (1) A complete facilities plan;
    (2) The EID;
    (3) The preliminary environmental assessment; and
    (4) Other documentation, deemed necessary by the responsible 
official adequate to make an EIS determination by EPA. Where EPA 
determines that an EIS is to be prepared, there is no need to prepare a 
formal environmental assessment. If EPA or the State identifies 
deficiencies in the EID, preliminary environmental assessment, or other 
supporting documentation, necessary corrections shall be made to this 
documentation before the conditions of the Step 1 grant are considered 
satisfied or before the Step 3 or Step 2+3 application is considered 
complete. The responsible official's determination to issue a FNSI or to 
prepare an EIS shall constitute final Agency action, and shall not be 
subject to administrative review under 40 CFR part 30, subpart L.

[50 FR 26317, June 25, 1985, as amended at 51 FR 32612, Sept. 12, 1986]



Sec. 6.507  Partitioning the environmental review process.

    (a) Purpose. Under certain circumstances the building of a 
component/portion of a wastewater treatment system may be justified in 
advance of completing all NEPA requirements for the remainder of the 
system(s). When there are overriding considerations of cost or impaired 
program effectiveness, the responsible official may award a construction 
grant, or approve procurement by other than EPA funds, for a discrete 
component of a complete wastewater treatment system(s). The process of 
partitioning the environmental review for the discrete component shall 
comply with the criteria and procedures described in paragraph (b) of 
this section. In addition, all reasonable alternatives for the overall 
wastewater treatment works system(s) of which the component is a part 
shall have been previously identified, and each part of the 
environmental review for the remainder of the overall facilities 
system(s) in the planning area in accordance with Sec. 6.502(b)(3) shall 
comply with all requirements under Sec. 6.506.
    (b) Criteria for partitioning. (1) Projects may be partitioned under 
the following circumstances:
    (i) To overcome impaired program effectiveness, the project 
component, in addition to meeting the criteria listed in paragraph 
(b)(2) of this section, must immediately remedy a severe public health, 
water quality or other environmental problem; or
    (ii) To significantly reduce direct costs on EPA projects, or other 
related public works projects, the project component (such as major 
pieces of equipment, portions of conveyances or small structures) in 
addition to meeting the criteria listed in paragraph (b)(2) of

[[Page 118]]

this section, must achieve a cost savings to the federal government and/
or to the grantee's or potential grantee's overall costs incurred in 
procuring the wastewater treatment component(s) and/or the installation 
of other related public works projects funded in coordination with other 
federal, State, tribal or local agencies.
    (2) The project component also must:
    (i) Not foreclose any reasonable alternatives identified for the 
overall wastewater treatment works system(s);
    (ii) Not cause significant adverse direct or indirect environmental 
impacts including those which cannot be acceptably mitigated without 
completing the entire wastewater treatment system of which the component 
is a part; and
    (iii) Not be highly controversial.
    (c) Requests for partitioning. The applicant's or State's request 
for partitioning must contain the following:
    (1) A description of the discrete component proposed for 
construction before completing the environmental review of the entire 
facilities plan;
    (2) How the component meets the above criteria;
    (3) The environmental information required by Sec. 6.506 of this 
subpart for the component; and
    (4) Any preliminary information that may be important to EPA in an 
EIS determination for the entire facilities plan (Sec. 6.509).
    (d) Approval of requests for partitioning. The responsible official 
shall:
    (1) Review the request for partitioning against all requirements of 
this subpart;
    (2) If approvable, prepare and issue a FNSI in accordance with 
Sec. 6.508;
    (3) Include a grant condition prohibiting the building of additional 
or different components of the entire facilities system(s) in the 
planning area as described in Sec. 6.502(b)(3)(i).

[50 FR 26317, June 25, 1985, as amended at 51 FR 32612, Sept. 12, 1986]



Sec. 6.508  Finding of No Significant Impact (FNSI) determination.

    (a) Criteria for producing and distributing FNSIs. If, after 
completion of the environmental review, EPA determines that an EIS will 
not be required, the responsible official shall issue a FNSI in 
accordance with Sec. Sec. 6.105(f) and 6.400(d). The FNSI will be based 
on EPA's independent review of the preliminary environmental assessment 
and any other environmental information deemed necessary by the 
responsible official consistent with the requirements of Sec. 6.506(c). 
Following the Agency's independent review, the environmental assessment 
will be finalized and either be incorporated into, or attached to, the 
FNSI. The FNSI shall list all mitigation measures as defined in 
Sec. 1508.20 of this title, and specifically identify those mitigation 
measures necessary to make the recommended alternative environmentally 
acceptable.
    (b) Proceeding with grant awards. (1) Once an environmental 
assessment has been prepared and the issued FNSI becomes effective for 
the treatment works within the study area, grant awards may proceed 
without preparation of additional FNSIs, unless the responsible official 
later determines that the project or environmental conditions have 
changed significantly from that which underwent environmental review.
    (2) For all environmental assessment/FNSI determinations:
    (i) That are five or more years old on projects awaiting Step 2+3 or 
Step 3 grant funding, the responsible official shall re-evaluate the 
project, environmental conditions and public views and, prior to grant 
award, either:
    (A) Reaffirm--issue a public notice reaffirming EPA's decision to 
proceed with the project without revising the environmental assessment;
    (B) Supplement--update information and prepare, issue and distribute 
a revised EA/FNSI in accordance with Sec. Sec. 6.105(f) and 6.400(d); or
    (C) Reassess--withdraw the FNSI and publish a notice of intent to 
produce an EIS followed by the preparation, issuance and distribution of 
the EIS/ROD.
    (ii) That are made on projects that have been awarded a Step 2+3 
grant, the responsible official shall, at the time of plans and 
specifications review under Sec. 35.2202(b) of this title, assess 
whether the environmental conditions or the project's anticipated impact 
on the environment have changed and,

[[Page 119]]

prior to plans and specifications approval, advise the Regional 
Administrator if additional environmental review is necessary.

[51 FR 32612, Sept. 12, 1986]



Sec. 6.509  Criteria for initiating Environmental Impact Statements (EIS).

    (a) Conditions requiring EISs. (1) The responsible official shall 
assure that an EIS will be prepared and issued when it is determined 
that the treatment works or collector system will cause any of the 
conditions under Sec. 6.108 to exist, or when
    (2) The treated effluent is being discharged into a body of water 
where the present classification is too lenient or is being challenged 
as too low to protect present or recent uses, and the effluent will not 
be of sufficient quality or quantity to meet the requirements of these 
uses.
    (b) Other conditions. The responsible official shall also consider 
preparing an EIS if: The project is highly controversial; the project in 
conjunction with related Federal, State, local or tribal resource 
projects produces significant cumulative impacts; or if it is determined 
that the treatment works may violate federal, State, local or tribal 
laws or requirements imposed for the protection of the environment.



Sec. 6.510  Environmental Impact Statement (EIS) preparation.

    (a) Steps in preparing EISs. In addition to the requirements 
specified in subparts A, B, C, and D of this part, the responsible 
official will conduct the following activities:
    (1) Notice of intent. If a determination is made that an EIS will be 
required, the responsible official shall prepare and distribute a notice 
of intent as required in Sec. 6.105(e) of this part.
    (2) Scoping. As soon as possible, after the publication of the 
notice of intent, the responsible official will convene a meeting of 
affected federal, State and local agencies, or affected Indian tribes, 
the grantee and other interested parties to determine the scope of the 
EIS. A notice of this scoping meeting must be made in accordance with 
Sec. 6.400(a) and 40 CFR 1506.6(b). As part of the scoping meeting EPA, 
in cooperation with any delegated State, will as a minimum:
    (i) Determine the significance of issues for and the scope of those 
significant issues to be analyzed in depth, in the EIS;
    (ii) Identify the preliminary range of alternatives to be 
considered;
    (iii) Identify potential cooperating agencies and determine the 
information or analyses that may be needed from cooperating agencies or 
other parties;
    (iv) Discuss the method for EIS preparation and the public 
participation strategy;
    (v) Identify consultation requirements of other environmental laws, 
in accordance with subpart C; and
    (vi) Determine the relationship between the EIS and the completion 
of the facilities plan and any necessary coordination arrangements 
between the preparers of both documents.
    (3) Identifying and evaluating alternatives. Immediately following 
the scoping process, the responsible official shall commence the 
identification and evaluation of all potentially viable alternatives to 
adequately address the range of issues identified in the scoping 
process. Additional issues may be addressed, or others eliminated, 
during this process and the reasons documented as part of the EIS.
    (b) Methods for preparing EISs. After EPA determines the need for an 
EIS, it shall select one of the following methods for its preparation:
    (1) Directly by EPA's own staff;
    (2) By EPA contracting directly with a qualified consulting firm;
    (3) By utilizing a third party method, whereby the responsible 
official enters into ``third party agreements'' for the applicant to 
engage and pay for the services of a third party contractor to prepare 
the EIS. Such agreement shall not be initiated unless both the applicant 
and the responsible official agree to its creation. A third party 
agreement will be established prior to the applicant's EID and eliminate 
the need for that document. In proceeding under the third party 
agreement, the responsible official shall carry out the following 
practices:

[[Page 120]]

    (i) In consultation with the applicant, choose the third party 
contractor and manage that contract;
    (ii) Select the consultant based on ability and an absence of 
conflict of interest. Third party contractors will be required to 
execute a disclosure statement prepared by the responsible official 
signifying they have no financial or other conflicting interest in the 
outcome of the project; and
    (iii) Specify the information to be developed and supervise the 
gathering, analysis and presentation of the information. The responsible 
official shall have sole authority for approval and modification of the 
statements, analyses, and conclusions included in the third party EIS; 
or
    (4) By utilizing a joint EPA/State process on projects within States 
which have requirements and procedures comparable to NEPA, whereby the 
EPA and the State agree to prepare a single EIS document to fulfill both 
federal and State requirements. Both EPA and the State shall sign a 
Memorandum of Agreement which includes the responsibilities and 
procedures to be used by both parties for the preparation of the EIS as 
provided for in 40 CFR 1506.2(c).



Sec. 6.511  Record of Decision (ROD) for EISs and identification of mitigation measures.

    (a) Record of Decision. After a final EIS has been issued, the 
responsible official shall prepare and issue a ROD in accordance with 40 
CFR 1505.2 prior to, or in conjunction with, the approval of the 
facilities plan. The ROD shall include identification of mitigation 
measures derived from the EIS process including grant conditions which 
are necessary to minimize the adverse impacts of the selected 
alternative.
    (b) Specific mitigation measures. Prior to the approval of a 
facilities plan, the responsible official must ensure that effective 
mitigation measures identified in the ROD will be implemented by the 
grantee. This should be done by revising the facilities plan, initiating 
other steps to mitigate adverse effects, or including conditions in 
grants requiring actions to minimize effects. Care should be exercised 
if a condition is to be imposed in a grant document to assure that the 
applicant possesses the authority to fulfill the conditions.
    (c) Proceeding with grant awards. (1) Once the ROD has been prepared 
on the selected, or preferred, alternative(s) for the treatment works 
described within the EIS, grant awards may proceed without the 
preparation of supplemental EISs unless the responsible official later 
determines that the project or the environmental conditions described 
within the current EIS have changed significantly from the previous 
environmental review in accordance with Sec. 1502.9(c) of this title.
    (2) For all EIS/ROD determinations:
    (i) That are five or more years old on projects awaiting Step 2+3 or 
Step 3 grant funding, the responsible official shall re-evaluate the 
project, environmental conditions and public views and, prior to grant 
award, either:
    (A) Reaffirm--issue a public notice reaffirming EPA's decision to 
proceed with the project, and documenting that no additional significant 
impacts were identified during the re-evaluation which would require 
supplementing the EIS; or
    (B) Supplement--conduct additional studies and prepare, issue and 
distribute a supplemental EIS in accordance with Sec. 6.404 and document 
the original, or any revised, decision in an addendum to the ROD.
    (ii) That are made on projects that have been awarded a Step 2+3 
grant, the responsible official shall, at the time of plans and 
specifications review under Sec. 35.2202(b) of this title, assess 
whether the environmental conditions or the project's anticipated impact 
on the environment have changed, and prior to plans and specifications 
approval, advise the Regional Administrator if additional environmental 
review is necessary.

[50 FR 26317, June 25, 1985, as amended at 51 FR 32613, Sept. 12, 1986]



Sec. 6.512  Monitoring for compliance.

    (a) General. The responsible official shall ensure adequate 
monitoring of mitigation measures and other grant conditions identified 
in the FNSI, or ROD.

[[Page 121]]

    (b) Enforcement. If the grantee fails to comply with grant 
conditions, the responsible official may consider applying any of the 
sanctions specified in 40 CFR 30.900.



Sec. 6.513  Public participation.

    (a) General. Consistent with public participation regulations in 
part 25 of this title, and subpart D of this part, it is EPA policy that 
certain public participation steps be achieved before the State and EPA 
complete the environmental review process. As a minimum, all potential 
applicants that do not qualify for a categorical exclusion shall conduct 
the following steps in accordance with procedures specified in part 25 
of this title:
    (1) One public meeting when alternatives have been developed, but 
before an alternative has been selected, to discuss all alternatives 
under consideration and the reasons for rejection of others; and
    (2) One public hearing prior to formal adoption of a facilities plan 
to discuss the proposed facilities plan and any needed mitigation 
measures.
    (b) Coordination. Public participation activities undertaken in 
connection with the environmental review process should be coordinated 
with any other applicable public participation program wherever 
possible.
    (c) Scope. The requirements of 40 CFR 6.400 shall be fulfilled, and 
consistent with 40 CFR 1506.6, the responsible official may institute 
such additional NEPA-related public participation procedures as are 
deemed necessary during the environmental review process.

[50 FR 26317, June 25, 1985, as amended at 51 FR 32613, Sept. 12, 1986]



Sec. 6.514  Delegation to States.

    (a) General. Authority delegated to the State under section 205(g) 
of the Clean Water Act to review a facilities plan may include all EPA 
activities under this part except for the following:
    (1) Determinations of whether or not a project qualifies for a 
categorical exclusion;
    (2) Determinations to partition the environmental review process;
    (3) Finalizing the scope of an EID when required to adequately 
conclude an independent review of a preliminary environmental 
assessment;
    (4) Finalizing the scope of an environmental assessment, and 
finalization, approval and issuance of a final environmental assessment;
    (5) Determination to issue, and issuance of, a FNSI based on a 
completed (Sec. 6.508) or partitioned (Sec. 6.507(d)(2)) environmental 
review;
    (6) Determination to issue, and issuance of, a notice of intent for 
preparing an EIS;
    (7) Preparation of EISs under Sec. 6.510(b) (1) and (2), final 
decisions required for preparing an EIS under Sec. 6.510(b)(3), 
finalizing the agreement to prepare an EIS under Sec. 6.510(b)(4), 
finalizing the scope of an EIS, and issuance of draft, final and 
supplemental EISs;
    (8) Preparation and issuance of the ROD based on an EIS;
    (9) Final decisions under other applicable laws described in subpart 
C of this part;
    (10) Determination following re-evaluations of projects awaiting 
grant funding in the case of Step 3 projects whose existing evaluations 
and/or decision documents are five or more years old, or determinations 
following re-evaluations on projects submitted for plans and 
specifications review and approval in the case of awarded Step 2+3 
projects where the EPA Regional Administrator has been advised that 
additional environmental review is necessary, in accordance with 
Sec. 6.505(d)(2), Sec. 6.508(b)(2) or Sec. 6.511(c)(2); and
    (11) Maintenance of official EPA monthly status reports as required 
under Sec. 6.402(b).
    (b) Elimination of duplication. The responsible official shall 
assure that maximum efforts are undertaken to minimize duplication 
within the limits described under paragraph (a) of this section. In 
carrying out requirements under this subpart, maximum consideration 
shall be given to eliminating duplication in accordance with Sec. 1506.2 
of this title. Where there are State or local procedures comparable to 
NEPA, EPA should enter into memoranda of understanding with these States 
concerning workload distribution and responsibilities not specifically 
reserved to EPA in paragraph (a) of this section

[[Page 122]]

for implementing the environmental review and facilities planning 
process.

[50 FR 26317, June 25, 1985, as amended at 51 FR 32613, Sept. 12, 1986]



  Subpart F--Environmental Review Procedures for the New Source NPDES 
                                 Program



Sec. 6.600  Purpose.

    (a) General. This subpart provides procedures for carrying out the 
environmental review process for the issuance of new source National 
Pollutant Discharge Elimination System (NPDES) discharge permits 
authorized under section 306, section 402, and section 511(c)(1) of the 
Clean Water Act.
    (b) Permit regulations. All references in this subpart to the permit 
regulations shall mean parts 122 and 124 of title 40 of the CFR relating 
to the NPDES program.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982]



Sec. 6.601  Definitions.

    (a) The term administrative action for the sake of this subpart 
means the issuance by EPA of an NPDES permit to discharge as a new 
source, pursuant to 40 CFR 124.15.
    (b) The term applicant for the sake of this subpart means any person 
who applies to EPA for the issuance of an NPDES permit to discharge as a 
new source.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982]



Sec. 6.602  Applicability.

    (a) General. The procedures set forth under subparts A, B, C and D, 
and this subpart shall apply to the issuance of new source NPDES 
permits, except for the issuance of a new source NPDES permit from any 
State which has an approved NPDES program in accordance with section 
402(b) of the Clean Water Act.
    (b) New Source Determination. An NPDES permittee must be determined 
a new source before these procedures apply. New source determinations 
will be undertaken pursuant to the provisions of the permit regulations 
under Sec. 122.29(a) and (b) of this chapter and Sec. 122.53(h).

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982; 51 
FR 32613, Sept. 12, 1986]



Sec. 6.603  Limitations on actions during environmental review process.

    The processing and review of an applicant's NPDES permit application 
shall proceed concurrently with the procedures within this subpart. 
Actions undertaken by the applicant or EPA shall be performed consistent 
with the requirements of Sec. 122.29(c) of this chapter.

[47 FR 9831, Mar. 8, 1982, as amended at 51 FR 32613, Sept. 12, 1986]



Sec. 6.604  Environmental review process.

    (a) New source. If EPA's initial determination under Sec. 6.602(b) 
is that the facility is a new source, the responsible official shall 
evaluate any environmental information to determine if any significant 
impacts are anticipated and an EIS is necessary. If the permit applicant 
requests, the responsible official shall establish time limits for the 
completion of the environmental review process consistent with 40 CFR 
1501.8.
    (b) Information needs. Information necessary for a proper 
environmental review shall be provided by the permit applicant in an 
environmental information document. The responsible official shall 
consult with the applicant to determine the scope of an environmental 
information document. In doing this the responsible official shall 
consider the size of the new source and the extent to which the 
applicant is capable of providing the required information. The 
responsible official shall not require the applicant to gather data or 
perform analyses which unnecessarily duplicate either existing data or 
the results of existing analyses available to EPA. The responsible 
official shall keep requests for data to the minimum consistent with his 
responsibilities under NEPA.
    (c) Environmental assessment. The responsible official shall prepare 
a written environmental assessment based on an environmental review of 
either the environmental information document

[[Page 123]]

and/or any other available environmental information.
    (d) EIS determination. (1) When the environmental review indicates 
that a significant environmental impact may occur and that the 
significant adverse impacts cannot be eliminated by making changes in 
the proposed new source project, a notice of intent shall be issued, and 
a draft EIS prepared and distributed. When the environmental review 
indicates no significant impacts are anticipated or when the proposed 
project is changed to eliminate the significant adverse impacts, a FNSI 
shall be issued which lists any mitigation measures necessary to make 
the recommended alternative environmentally acceptable.
    (2) The FNSI together with the environmental assessment that 
supports the finding shall be distributed in accordance with 
Sec. 6.400(d) of this regulation.
    (e) Lead agency. (1) If the environmental review reveals that the 
preparation of an EIS is required, the responsible official shall 
determine if other Federal agencies are involved with the project. The 
responsible official shall contact all other involved agencies and 
together the agencies shall decide the lead agency based on the criteria 
set forth in 40 CFR 1501.5.
    (2) If, after the meeting of involved agencies, EPA has been 
determined to be the lead agency, the responsible official may request 
that other involved agencies be cooperating agencies. Cooperating 
agencies shall be chosen and shall be involved in the EIS preparation 
process in the manner prescribed in the 40 CFR 1501.6(a). If EPA has 
been determined to be a cooperating agency, the responsible official 
shall be involved in assisting in the preparation of the EIS in the 
manner prescribed in 40 CFR 1501.6(b).
    (f) Notice of intent. (1) If EPA is the lead agency for the 
preparation of an EIS, the responsible official shall arrange through 
OER for the publication of the notice of intent in the Federal Register, 
distribute the notice of intent and arrange and conduct a scoping 
meeting as outlined in 40 CFR 1501.7.
    (2) If the responsible official and the permit applicant agree to a 
third party method of EIS preparation, pursuant to Sec. 6.604(g)(3) of 
this part, the responsible official shall insure that a notice of intent 
is published and that a scoping meeting is held before the third party 
contractor begins work which may influence the scope of the EIS.
    (g) EIS method. EPA shall prepare EISs by one of the following 
means:
    (1) Directly by its own staff;
    (2) By contracting directly with a qualified consulting firm; or
    (3) By utilizing a third party method, whereby the responsible 
official enters into a third party agreement for the applicant to engage 
and pay for the services of a third party contractor to prepare the EIS. 
Such an agreement shall not be initiated unless both the applicant and 
the responsible official agree to its creation. A third party agreement 
will be established prior to the applicant's environmental information 
document and eliminate the need for that document. In proceeding under 
the third party agreement, the responsible official shall carry out the 
following practices:
    (i) In consultation with the applicant, choose the third party 
contractor and manage that contract.
    (ii) Select the consultant based on his ability and an absence of 
conflict of interest. Third party contractors will be required to 
execute a disclosure statement prepared by the responsible official 
signifying they have no financial or other conflicting interest in the 
outcome of the project.
    (iii) Specify the information to be developed and supervise the 
gathering, analysis and presentation of the information. The responsible 
official shall have sole authority for approval and modification of the 
statements, analyses, and conclusions included in the third party EIS.
    (h) Documents for the administrative record. Pursuant to 40 CFR 
124.9(b)(6) and 124.18(b)(5) any environmental assessment, FNSI EIS, or 
supplement to an EIS shall be made a part of the administrative record 
related to permit issuance.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982]



Sec. 6.605  Criteria for preparing EISs.

    (a) General guidelines. (1) When determining the significance of a 
proposed

[[Page 124]]

new source's impact, the responsible official shall consider both its 
short term and long term effects as well as its direct and indirect 
effects and beneficial and adverse environmental impacts as defined in 
40 CFR 1508.8.
    (2) If EPA is proposing to issue a number of new source NPDES 
permits during a limited time span and in the same general geographic 
area, the responsible official shall examine the possibility of tiering 
EISs. If the permits are minor and environmentally insignificant when 
considered separately, the responsible official may determine that the 
cumulative impact of the issuance of all these permits may have a 
significant environmental effect and require an EIS for the area. Each 
separate decision to issue an NPDES permit shall then be based on the 
information in this areawide EIS. Site specific EISs may be required in 
certain circumstances in addition to the areawide EIS.
    (b) Specific criteria. An EIS will be prepared when:
    (1) The new source will induce or accelerate significant changes in 
industrial, commercial, agricultural, or residential land use 
concentrations or distributions which have the potential for significant 
environmental effects. Factors that should be considered in determining 
if these changes are environmentally significant include but are not 
limited to: The nature and extent of the vacant land subject to 
increased development pressure as a result of the new source; the 
increases in population or population density which may be induced and 
the ramifications of such changes; the nature of land use regulations in 
the affected area and their potential effects on development and the 
environment; and the changes in the availability or demand for energy 
and the resulting environmental consequences.
    (2) The new source will directly, or through induced development, 
have significant adverse effect upon local ambient air quality, local 
ambient noise levels, floodplains, surface or groundwater quality or 
quantity, fish, wildlife, and their natural habitats.
    (3) Any major part of the new source will have significant adverse 
effect on the habitat of threatened or endangered species on the 
Department of the Interior's or a State's lists of threatened and 
endangered species.
    (4) The environmental impact of the issuance of a new source NPDES 
permit will have significant direct and adverse effect on a property 
listed in or eligible for listing in the National Register of Historic 
Places.
    (5) Any major part of the source will have significant adverse 
effects on parklands, wetlands, wild and scenic rivers, reservoirs or 
other important bodies of water, navigation projects, or agricultural 
lands.



Sec. 6.606  Record of decision.

    (a) General. At the time of permit award, the responsible official 
shall prepare a record of decision in those cases where a final EIS was 
issued in accordance with 40 CFR 1505.2 and pursuant to the provisions 
of the permit regulations under 40 CFR 124.15 and 124.18(b)(5). The 
record of decision shall list any mitigation measures necessary to make 
the recommended alternative environmentally acceptable.
    (b) Mitigation measures. The mitigation measures derived from the 
EIS process shall be incorporated as conditions of the permit; ancillary 
agreements shall not be used to require mitigation.

[44 FR 64177, Nov. 6, 1979, as amended at 47 FR 9831, Mar. 8, 1982]



Sec. 6.607  Monitoring.

    In accordance with 40 CFR 1505.3 and pursuant to 40 CFR 122.66(c) 
and 122.10 the responsible official shall ensure that there is adequate 
monitoring of compliance with all NEPA related requirements contained in 
the permit.

[47 FR 9831, Mar. 8, 1982]



 Subpart G--Environmental Review Procedures for Office of Research and 
                          Development Projects

    Source: 56 FR 20543, May 6, 1991, unless otherwise noted.



Sec. 6.700  Purpose.

    (a) This subpart amplifies the requirements described in subparts A

[[Page 125]]

through D by providing specific environmental review procedures for 
activities undertaken or funded by the Office of Research and 
Development (ORD).
    (b) The ORD Program provides scientific support for setting 
environmental standards as well as the technology needed to prevent, 
monitor and control pollution. Intramural research is conducted at EPA 
laboratories and field stations throughout the United States. Extramural 
research is implemented through grants, cooperative agreements, and 
contracts. The majority of ORD's research is conducted within the 
confines of laboratories. Outdoor research includes monitoring, 
sampling, and environmental stress and ecological effects studies.



Sec. 6.701  Definition.

    The term appropriate program official means the official at each 
decision level within ORD to whom the Assistant Administrator has 
delegated responsibility for carrying out the environmental review 
process.



Sec. 6.702  Applicability.

    The requirements of this subpart apply to administrative actions 
undertaken to approve intramural and extramural projects under the 
purview of ORD.



Sec. 6.703  General.

    (a) Environmental information. (1) For intramural research projects, 
information necessary to perform the environmental review shall be 
obtained by the appropriate program official.
    (2) For extramural research projects, environmental information 
documents shall be submitted to EPA by applicants to facilitate the 
Agency's environmental review process. Guidance on environmental 
information documents shall be included in all assistance application 
kits and in contract proposal instructions. If there is a question 
concerning the preparation of an environmental information document, the 
applicant should consult with the project officer or contract officer 
for guidance.
    (b) Environmental review. The diagram in figure 1 represents the 
various stages of the environmental review process to be undertaken for 
ORD projects.
    (1) For intramural research projects, an environmental review will 
be performed for each laboratory's projects at the start of the planning 
year. The review will be conducted before projects are incorporated into 
the ORD program planning system. Projects added at a later date and, 
therefore, not identified at the start of the planning year, or any 
redirection of a project that could have significant environmental 
effects, also will be subjected to an environmental review. This review 
will be performed in accordance with the process set forth in this 
subpart and depicted in figure 1.
    (2) For extramural research projects, the environmental review shall 
be conducted before an initial or continuing award is made. The 
appropriate program official will perform the environmental review in 
accordance with the process set forth in this subpart and depicted in 
figure 1. EPA form 5300-23 will be used to document categorical 
exclusion determinations or, with appropriate supporting analysis, as 
the environmental assessment (EA). The completed form 5300-23 and any 
finding of no significant impact (FNSI) or environmental impact 
statement (EIS) will be submitted with the proposal package to the 
appropriate EPA assistance or contract office.
    (c) Agency coordination. In order to avoid duplication of effort and 
ensure consistency throughout the Agency, environmental reviews of ORD 
projects will be coordinated, as appropriate and feasible, with reviews 
performed by other program offices. Technical support documents prepared 
for reviews in other EPA programs may be adopted for use in ORD's 
environmental reviews and supplemented, as appropriate.



Sec. 6.704   Categorical exclusions.

    (a) At the beginning of the environmental review process (see Figure 
1), the appropriate program official shall determine whether an ORD 
project can be categorically excluded from the substantive requirements 
of a NEPA review. This determination shall be based on general criteria 
in Sec. 6.107(d) and specialized categories of ORD actions eligible for 
exclusion in Sec. 6.704(b). If the

[[Page 126]]

appropriate program official determines that an ORD project is 
consistent with the general criteria and any of the specialized 
categories of eligible activities, and does not satisfy the criteria in 
Sec. 6.107(e) for not granting a categorical exclusion, then this 
finding shall be documented and no further action shall be required. A 
categorical exclusion shall be revoked by the appropriate program 
official if it is determined that the project meets the criteria for 
revocation in Sec. 6.107(c). Projects that fail to qualify for 
categorical exclusion or for which categorical exclusion has been 
revoked must undergo full environmental review in accordance with 
Sec. 6.705 and Sec. 6.706.
    (b) The following specialized categories of ORD actions are eligible 
for categorical exclusion from a detailed NEPA review:
    (1) Library or literature searches and studies;
    (2) Computer studies and activities;
    (3) Monitoring and sample collection wherein no significant 
alteration of existing ambient conditions occurs;
    (4) Projects conducted completely within a contained facility, such 
as a laboratory or other enclosed building, where methods are employed 
for appropriate disposal of laboratory wastes and safeguards exist 
against hazardous, toxic, and radioactive materials entering the 
environment. Laboratory directors or other appropriate officials must 
certify and provide documentation that the laboratory follows good 
laboratory practices and adheres to applicable federal statutes, 
regulations and guidelines.



Sec. 6.705   Environmental assessment and finding of no significant impact.

    (a) When a project does not meet any of the criteria for categorical 
exclusion, the appropriate program official shall undertake an 
environmental assessment in accordance with 40 CFR 1508.9 in order to 
determine whether an EIS is required or if a FNSI can be made. ORD 
projects which normally result in the preparation of an EA include the 
following:
    (1) Initial field demonstration of a new technology;
    (2) Field trials of a new product or new uses of an existing 
technology;
    (3) Alteration of a local habitat by physical or chemical means.
    (b) If the environmental assessment reveals that the research is not 
anticipated to have a significant impact on the environment, the 
appropriate program official shall prepare a FNSI in accordance with 
Sec. 6.105(f). Pursuant to Sec. 6.400(d), no administrative action will 
be taken on a project until the prescribed 30-day comment period for a 
FNSI has elapsed and the Agency has fully considered all comments.
    (c) On actions involving potentially significant impacts on the 
environment, a FNSI may be prepared if changes have been made in the 
proposed action to eliminate any significant impacts. These changes must 
be documented in the proposal and in the FNSI.
    (d) If the environmental assessment reveals that the research may 
have a significant impact on the environment, an EIS must be prepared. 
The appropriate program official may make a determination that an EIS is 
necessary without preparing a formal environmental assessment. This 
determination may be made by applying the criteria for preparation of an 
EIS in Sec. 6.706.



Sec. 6.706   Environmental impact statement.

    (a) Criteria for preparation. In performing the environmental 
review, the appropriate program official shall assure that an EIS is 
prepared when any of the conditions under Sec. 6.108 (a) through (g) 
exist or when:
    (1) The proposed action may significantly affect the environment 
through the release of radioactive, hazardous or toxic substances;
    (2) The proposed action, through the release of an organism or 
organisms, may involve environmental effects which are significant;
    (3) The proposed action involves effects upon the environment which 
are likely to be highly controversial;
    (4) The proposed action involves environmental effects which may 
accumulate over time or combine with effects of other actions to create 
impacts which are significant;

[[Page 127]]

    (5) The proposed action involves uncertain environmental effects or 
highly unique environmental risks which may be significant.
    (b) ORD actions which may require preparation of an EIS. There are 
no ORD actions which normally require the preparation of an EIS. 
However, each ORD project will be evaluated using the EIS criteria as 
stated in Sec. 6.706(a) to determine whether an EIS must be prepared.
    (c) Notice of intent. (1) If the environmental review reveals that a 
proposed action may have a significant effect on the environment and 
this effect cannot be eliminated by redirection of the research or other 
means, the appropriate program official shall issue a notice of intent 
to prepare an EIS pursuant to Sec. 6.400(b).
    (2) As soon as possible after release of the notice of intent, the 
appropriate program official shall ensure that a draft EIS is prepared 
in accordance with subpart B and that the public is involved in 
accordance with subpart D.
    (3) Draft and final EISs shall be sent to the Assistant 
Administrator for ORD for approval.
    (4) Pursuant to Sec. 6.401(b), a decision on whether to undertake or 
fund a project must be made in conformance with the time frames 
indicated.
    (d) Record of decision. Before the project is undertaken or funded, 
the appropriate program official shall prepare, in accordance with 
Sec. 6.105 (g) and (h), a record of decision in any case where a final 
EIS has been issued.

[[Page 128]]

Insert/illustration(s) 0 908

[[Page 129]]



Subpart H--Environmental Review Procedures for Solid Waste Demonstration 
                                Projects



Sec. 6.800  Purpose.

    This subpart amplifies the procedures described in subparts A 
through D by providing more specific environmental review procedures for 
demonstration projects undertaken by the Office of Solid Waste and 
Emergency Response.

[44 FR 64177, Nov. 6, 1979, as amended at 51 FR 32613, Sept. 12, 1986]



Sec. 6.801  Applicability.

    The requirements of this subpart apply to solid waste demonstration 
projects for resource recovery systems and improved solid waste disposal 
facilities undertaken pursuant to section 8006 of the Resource 
Conservation and Recovery Act of 1976.



Sec. 6.802  Criteria for preparing EISs.

    The responsible official shall assure that an EIS will be prepared 
when it is determined that any of the conditions in Sec. 6.108 exist.

[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26323, June 25, 1985]



Sec. 6.803  Environmental review process.

    (a) Environmental information. (1) Environmental information 
documents shall be submitted to EPA by grant applicants or contractors. 
If there is a question concerning the need for a document, the potential 
contractor or grantee should consult with the appropriate project 
officer for the grant or contract.
    (2) The environmental information document shall contain the same 
sections specified for EIS's in subpart B. Guidance alerting potential 
grantees and contractors of the environmental information documents 
shall be included in all grant application kits, attached to letters 
concerning the submission of unsolicited proposals, and included with 
all requests for proposal.
    (b) Environmental review. An environmental review will be conducted 
before a grant or contract award is made. This review will include the 
preparation of an environmental assessment by the responsible official; 
the appropriate Regional Administrator's input will include his 
recommendations on the need for an EIS.
    (c) Notice of intent and EIS. Based on the environmental review if 
the criteria in Sec. 6.802 of this part apply, the responsible official 
will assure that a notice of intent and a draft EIS are prepared. The 
responsible official may request the appropriate Regional Administrator 
to assist him in the preparation and distribution of the environmental 
documents.
    (d) Finding of no significant impact. If the environmental review 
indicated no significant environmental impacts, the responsible official 
will assure that a FNSI is prepared which lists any mitigation measures 
necessary to make the recommended alternative environmentally 
acceptable.
    (e) Timing of action. Pursuant to Sec. 6.401(b), in no case shall a 
contract or grant be awarded until the prescribed 30-day review period 
for a final EIS has elapsed. Similarly, no action shall be taken until 
the 30-day comment period for a FNSI is completed.



Sec. 6.804  Record of decision.

    The responsible official shall prepare a record of decision in any 
case where final EIS has been issued in accordance with 40 CFR 1505.2. 
It shall be prepared at the time of contract or grant award. The record 
of decision shall list any mitigation measures necessary to make the 
recommended alternative environmentally acceptable.



  Subpart I--Environmental Review Procedures for EPA Facility Support 
                               Activities



Sec. 6.900  Purpose.

    This subpart amplifies the general requirements described in 
subparts A through D by providing environmental procedures for the 
preparation of EISs on construction and renovation of special purpose 
facilities.



Sec. 6.901  Definitions.

    (a) The term special purpose facility means a building or space, 
including land incidental to its use, which is wholly or predominantly 
utilized for the special purpose of an agency and not generally suitable 
for other uses,

[[Page 130]]

as determined by the General Services Administration.
    (b) The term program of requirements means a comprehensive document 
(booklet) describing program activities to be accomplished in the new 
special purpose facility or improvement. It includes architectural, 
mechanical, structural, and space requirements.
    (c) The term scope of work means a document similar in content to 
the program of requirements but substantially abbreviated. It is usually 
prepared for small-scale projects.



Sec. 6.902  Applicability.

    (a) Actions covered. These procedures apply to all new special 
purpose facility construction, activities related to this construction 
(e.g., site acquisition and clearing), and any improvements or 
modifications to facilities having potential environmental effects 
external to the facility, including new construction and improvements 
undertaken and funded by the Facilities Engineering and Real Estate 
Branch, Facilities and Support Services Division, Office of the 
Assistant Administrator for Administration and Resource Management; or 
by a regional office .
    (b) Actions excluded. This subpart does not apply to those 
activities of the Facilities Engineering and Real Estate Branch, 
Facilities and Support Services Division, for which the branch does not 
have full fiscal responsibility for the entire project. This includes 
pilot plant construction, land acquisition, site clearing and access 
road construction where the Facilities Engineering and Real Estate 
Branch's activity is only supporting a project financed by a program 
office. Responsibility for considering the environmental impacts of such 
projects rests with the office managing and funding the entire project. 
Other subparts of this regulation apply depending on the nature of the 
project.

[44 FR 64177, Nov. 6, 1979, as amended at 51 FR 32613, Sept. 12, 1986]



Sec. 6.903  Criteria for preparing EISs.

    (a) Preliminary information. The responsible official shall request 
an environmental information document from a construction contractor or 
consulting architect/engineer employed by EPA if he is involved in the 
planning, construction or modification of special purpose facilities 
when his activities have potential environmental effects external to the 
facility. Such modifications include but are not limited to facility 
additions, changes in central heating systems or wastewater treatment 
systems, and land clearing for access roads and parking lots.
    (b) EIS preparation criteria. The responsible official shall conduct 
an environmental review of all actions involving construction of special 
purpose facilities and improvements to these facilities. The responsible 
official shall assure that an EIS will be prepared when it is determined 
that any of the conditions in Sec. 6.108 of this part exist.

[44 FR 64177, Nov. 6, 1979, as amended at 50 FR 26323, June 25, 1985]



Sec. 6.904  Environmental review process.

    (a) Environmental review. (1) An environmental review shall be 
conducted when the program of requirements or scope of work has been 
completed for the construction, improvements, or modification of special 
purpose facilities. For special purpose facility construction, the 
Chief, Facilities Engineering and Real Estate Branch, shall request the 
assistance of the appropriate program office and Regional Administrator 
in the review. For modifications and improvement, the appropriate 
responsible official shall request assistance in making the review from 
other cognizant EPA offices.
    (2) Any environmental information documents requested shall contain 
the same sections listed for EISs in subpart B. Contractors and 
consultants shall be notified in contractual documents when an 
environmental information document must be prepared.
    (b) Notice of intent, EIS, and FNSI. The responsible official shall 
decide at the completion of the Environmental review whether there may 
be any significant environmental impacts. If there could be significant 
environmental impacts, a notice of intent and an EIS shall be prepared 
according to the procedures under subparts A, B, C and D. If there are 
not any significant environmental impacts, a FNSI shall be prepared 
according to the procedures in subparts A and D. The FNSI shall list

[[Page 131]]

any mitigation measures necessary to make the recommended alternative 
environmentally acceptable.
    (c) Timing of action. Pursuant to Sec. 6.401(b), in no case shall a 
contract be awarded or construction activities begun until the 
prescribed 30-day wait period for a final EIS has elapsed. Similarly, 
under Sec. 6.400(d), no action shall be taken until the 30-day comment 
period for FNSIs is completed.



Sec. 6.905  Record of decision.

    At the time of contract award, the responsible official shall 
prepare a record of decision in those cases where a final EIS has been 
issued in accordance with 40 CFR 1505.2. The record of decision shall 
list any mitigation measures necessary to make the recommended 
alternative environmentally acceptable.



  Subpart J--Assessing the Environmental Effects Abroad of EPA Actions

    Authority: Executive Order 12114, 42 U.S.C. 4321, note.

    Source: 46 FR 3364, Jan. 14, 1981, unless otherwise noted.



Sec. 6.1001  Purpose and policy.

    (a) Purpose. On January 4, 1979, the President signed Executive 
Order 12114 entitled ``Environmental Effects Abroad of Major Federal 
Actions.'' The purpose of this Executive Order is to enable responsible 
Federal officials in carrying out or approving major Federal actions 
which affect foreign nations or the global commons to be informed of 
pertinent environmental considerations and to consider fully the 
environmental impacts of the actions undertaken. While based on 
independent authority, this Order furthers the purpose of the National 
Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) and the Marine 
Protection Research and Sanctuaries Act (MPRSA) (33 U.S.C. 1401 et 
seq.). It should be noted, however, that in fulfilling its 
responsibilities under Executive Order 12114, EPA shall be guided by CEQ 
regulations only to the extent that they are made expressly applicable 
by this subpart. The procedures set forth below reflect EPA's duties and 
responsibilities as required under the Executive Order and satisfy the 
requirement for issuance of procedures under section 2-1 of the 
Executive Order.
    (b) Policy. It shall be the policy of this Agency to carry out the 
purpose and requirements of the Executive Order to the fullest extent 
possible. EPA, within the realm of its expertise, shall work with the 
Department of State and the Council on Environmental Quality to provide 
information to other Federal agencies and foreign nations to heighten 
awareness of and interest in the environment. EPA shall further 
cooperate to the extent possible with Federal agencies to lend special 
expertise and assistance in the preparation of required environmental 
documents under the Executive Order. EPA shall perform environmental 
reviews of activities significantly affecting the global commons and 
foreign nations as required under Executive Order 12114 and as set forth 
under these procedures.



Sec. 6.1002  Applicability.

    (a) Administrative actions requiring environmental review. The 
environmental review requirements apply to the activities of EPA as set 
forth below:
    (1) Major research or demonstration projects which affect the global 
commons or a foreign nation.
    (2) Ocean dumping activities carried out under section 102 of the 
MPRSA which affect the related environment.
    (3) Major permitting or licensing by EPA of facilities which affect 
the global commons or the environment of a foreign nation. This may 
include such actions as the issuance by EPA of hazardous waste 
treatment, storage, or disposal facility permits pursuant to section 
3005 of the Resource Conservation and Recovery Act (42 U.S.C. 6925), 
NPDES permits pursuant to section 402 of the Clean Water Act (33 U.S.C. 
1342), and prevention of significant deterioration approvals pursuant to 
Part C of the Clean Air Act (42 U.S.C. 7470 et seq.).
    (4) Wastewater Treatment Construction Grants Program under section 
201 of the Clean Water Act when activities

[[Page 132]]

addressed in the facility plan would have environmental effects abroad.
    (5) Other EPA activities as determined by OER and OIA (see 
Sec. 6.1007(c)).



Sec. 6.1003  Definitions.

    As used in this subpart, environment means the natural and physical 
environment and excludes social, economic and other environments; global 
commons is that area (land, air, water) outside the jurisdiction of any 
nation; and responsible official is either the EPA Assistant 
Administrator or Regional Administrator as appropriate for the 
particular EPA program. Also, an action significantly affects the 
environment if it does significant harm to the environment even though 
on balance the action may be beneficial to the environment. To the 
extent applicable, the responsible official shall address the 
considerations set forth in the CEQ Regulations under 40 CFR 1508.27 in 
determining significant effect.



Sec. 6.1004  Environmental review and assessment requirements.

    (a) Research and demonstration projects. The appropriate Assistant 
Administrator is responsible for performing the necessary degree of 
environmental review on research and demonstration projects undertaken 
by EPA. If the research or demonstration project affects the environment 
of the global commons, the applicant shall prepare an environmental 
analysis. This will assist the responsible official in determining 
whether an EIS is necessary. If it is determined that the action 
significantly affects the environment of the global commons, then an EIS 
shall be prepared. If the undertaking significantly affects a foreign 
nation EPA shall prepare a unilateral, bilateral or multilateral 
environmental study. EPA shall afford the affected foreign nation or 
international body or organization an opportunity to participate in this 
study. This environmental study shall discuss the need for the action, 
analyze the environmental impact of the various alternatives considered 
and list the agencies and other parties consulted.
    (b) Ocean dumping activities. (1) The Assistant Administrator for 
Water and Waste Management shall ensure the preparation of appropriate 
environmental documents relating to ocean dumping activities in the 
global commons under section 102 of the MPRSA. For ocean dumping site 
designations prescribed pursuant to section 102(c) of the MPRSA and 40 
CFR part 228, EPA shall prepare an environmental impact statement 
consistent with the requirements of EPA's Procedures for the Voluntary 
Preparation of Environmental Impact Statements dated October 21, 1974 
(see 39 FR 37419). Also EPA shall prepare an environmental impact 
statement for the establishment or revision of criteria under section 
102(a) of MPRSA.
    (2) For individual permits issued by EPA under section 102(b) an 
environmental assessment shall be made by EPA. Pursuant to 40 CFR part 
221, the permit applicant shall submit with the application an 
environmental analysis which includes a discussion of the need for the 
action, an outline of alternatives, and an analysis of the environmental 
impact of the proposed action and alternatives consistent with the EPA 
criteria established under section 102(a) of MPRSA. The information 
submitted under 40 CFR part 221 shall be sufficient to satisfy the 
environmental assessment requirement.
    (c) EPA permitting and licensing activities. The appropriate 
Regional Administrator is responsible for conducting concise 
environmental reviews with regard to permits issued under section 3005 
of the Resource Conservation and Recovery Act (RCRA permits), section 
402 of the Clean Water Act (NPDES permits), and section 165 of the Clean 
Air Act (PSD permits), for such actions undertaken by EPA which affect 
the global commons or foreign nations. The information submitted by 
applicants for such permits or approvals under the applicable 
consolidated permit regulations (40 CFR parts 122 and 124) and 
Prevention of Significant Deterioration (PSD) regulations (40 CFR part 
52) shall satisfy the environmental document requirement under section 
2-4(b) of Executive Order 12114. Compliance with applicable requirements 
in part 124 of the consolidated permit regulations (40 CFR part 124) 
shall be sufficient to satisfy the requirements to

[[Page 133]]

conduct a concise environmental review for permits subject to this 
paragraph.
    (d) Wastewater treatment facility planning. 40 CFR 6.506 details the 
environmental review process for the facilities planning process under 
the wastewater treatment works construction grants program. For the 
purpose of these regulations, the facility plan shall also include a 
concise environmental review of those activities that would have 
environmental effects abroad. This shall apply only to the Step 1 grants 
awarded after January 14, 1981, but on or before December 29, 1981, and 
facilities plans developed after December 29, 1981. Where water quality 
impacts identified in a facility plan are the subject or water quality 
agreements with Canada or Mexico, nothing in these regulations shall 
impose on the facility planning process coordination and consultation 
requirements in addition to those required by such agreements.
    (e) Review by other Federal agencies and other appropriate 
officials. The responsible officials shall consult with other Federal 
agencies with relevant expertise during the preparation of the 
environmental document. As soon as feasible after preparation of the 
environmental document, the responsible official shall make the document 
available to the Council on Environmental Quality, Department of State, 
and other appropriate officials. The responsible official with 
assistance from OIA shall work with the Department of State to establish 
procedures for communicating with and making documents available to 
foreign nations and international organizations.

[46 FR 3364, Jan. 14, 1981, as amended at 50 FR 26323, June 25, 1985]



Sec. 6.1005  Lead or cooperating agency.

    (a) Lead Agency. Section 3-3 of Executive Order 12114 requires the 
creation of a lead agency whenever an action involves more than one 
federal agency. In implementing section 3-3, EPA shall, to the fullest 
extent possible, follow the guidance for the selection of a lead agency 
contained in 40 CFR 1501.5 of the CEQ regulations.
    (b) Cooperating Agency. Under section 2-4(d) of the Executive Order, 
Federal agencies with special expertise are encouraged to provide 
appropriate resources to the agency preparing environmental documents in 
order to avoid duplication of resources. In working with a lead agency, 
EPA shall to the fullest extent possible serve as a cooperating agency 
in accordance with 40 CFR 1501.6. When other program commitments 
preclude the degree of involvement requested by the lead agency, the 
responsible EPA official shall so inform the lead agency in writing.



Sec. 6.1006  Exemptions and considerations.

    Under section 2-5 (b) and (c) of the Executive Order, Federal 
agencies may provide for modifications in the contents, timing and 
availability of documents or exemptions from certain requirements for 
the environmental review and assessment. The responsible official, in 
consultation with the Director, Office of Environmental Review (OER), 
and the Director, Office of International Activities (OIA), may approve 
modifications for situations described in section 2-5(b). The 
responsible official, in consultation with the Director, OER and 
Director OIA, shall obtain exemptions from the Administrator for 
situations described in section 2-5(c). The Department of State and the 
Council on Environmental Quality shall be consulted as soon as possible 
on the utilization of such exemptions.



Sec. 6.1007  Implementation.

    (a) Oversight. OER is responsible for overseeing the implementation 
of these procedures and shall consult with OIA wherever appropriate. OIA 
shall be utilized for making formal contacts with the Department of 
State. OER shall assist the responsible officials in carrying out their 
responsibilities under these procedures.
    (b) Information exchange. OER with the aid of OIA, shall assist the 
Department of State and the Council on Environmental Quality in 
developing the informational exchange on environmental review activities 
with foreign nations.
    (c) Unidentified activities. The responsible official shall consult 
with OER

[[Page 134]]

and OIA to establish the type of environmental review or document 
appropriate for any new EPA activities or requirements imposed upon EPA 
by statute, international agreement or other agreements.

    Appendix A--Statement of Procedures on Floodplain Management and 
                           Wetlands Protection

Contents:

Section 1  General
Section 2  Purpose
Section 3  Policy
Section 4  Definitions
Section 5  Applicability
Section 6  Requirements
Section 7  Implementation

                           Section 1  General

    a. Executive Order 11988 entitled ``Floodplain Management'' dated 
May 24, 1977, requires Federal agencies to evaluate the potential 
effects of actions it may take in a floodplain to avoid adversely 
impacting floodplains wherever possible, to ensure that its planning 
programs and budget requests reflect consideration of flood hazards and 
floodplain management, including the restoration and preservation of 
such land areas as natural undeveloped floodplains, and to prescribe 
procedures to implement the policies and procedures of this Executive 
Order. Guidance for implementation of the Executive Order has been 
provided by the U.S. Water Resources Council in its Floodplain 
Management Guidelines dated February 10, 1978 (see 40 FR 6030).
    b. Executive Order 11990 entitled ``Protection of Wetlands'', dated 
May 24, 1977, requires Federal agencies to take action to avoid 
adversely impacting wetlands wherever possible, to minimize wetlands 
destruction and to preserve the values of wetlands, and to prescribe 
procedures to implement the policies and procedures of this Executive 
Order.
    c. It is the intent of these Executive Orders that, wherever 
possible, Federal agencies implement the floodplains/wetlands 
requirements through existing procedures, such as those internal 
procedures established to implement the National Environmental Policy 
Act (NEPA) and OMB A-95 review procedures. In those instances where the 
environmental impacts of a proposed action are not significant enough to 
require an environmental impact statement (EIS) pursuant to section 
102(2)(C) of NEPA, or where programs are not subject to the requirements 
of NEPA, alternative but equivalent floodplain/wetlands evaluation and 
notice procedures must be established.

                           Section 2  Purpose

    a. The purpose of this Statement of Procedures is to set forth 
Agency policy and guidance for carrying out the provisions of Executive 
Orders 11988 and 11990.
    b. EPA program offices shall amend existing regulations and 
procedures to incorporate the policies and procedures set forth in this 
Statement of Procedures.
    c. To the extent possible, EPA shall accommodate the requirements of 
Executive Orders 11988 and 11990 through the Agency NEPA procedures 
contained in 40 CFR part 6.

                            Section 3  Policy

    a. The Agency shall avoid wherever possible the long and short term 
impacts associated with the destruction of wetlands and the occupancy 
and modification of floodplains and wetlands, and avoid direct and 
indirect support of floodplain and wetlands development wherever there 
is a practicable alternative.
    b. The Agency shall incorporate floodplain management goals and 
wetlands protection considerations into its planning, regulatory, and 
decisionmaking processes. It shall also promote the preservation and 
restoration of floodplains so that their natural and beneficial values 
can be realized. To the extent possible EPA shall:
    (1) Reduce the hazard and risk of flood loss and wherever it is 
possible to avoid direct or indirect adverse impact on floodplains;
    (2) Where there is no practical alternative to locating in a 
floodplain, minimize the impact of floods on human safety, health, and 
welfare, as well as the natural environment;
    (3) Restore and preserve natural and beneficial values served by 
floodplains;
    (4) Require the construction of EPA structures and facilities to be 
in accordance with the standards and criteria, of the regulations 
promulgated pursuant to the National Flood Insurance Program;
    (5) Identify floodplains which require restoration and preservation 
and recommend management programs necessary to protect these floodplains 
and to include such considerations as part of on-going planning 
programs; and
    (6) Provide the public with early and continuing information 
concerning floodplain management and with opportunities for 
participating in decision making including the (evaluation of) tradeoffs 
among competing alternatives.
    c. The Agency shall incorporate wetlands protection considerations 
into its planning, regulatory, and decisionmaking processes. It shall 
minimize the destruction, loss, or degradation of wetlands and preserve 
and enhance the natural and beneficial values of wetlands. Agency 
activities shall continue to

[[Page 135]]

be carried out consistent with the Administrator's Decision Statement 
No. 4 dated February 21, 1973 entitled ``EPA Policy to Protect the 
Nation's Wetlands.''

                         Section 4  Definitions

    a. Base Flood means that flood which has a one percent chance of 
occurrence in any given year (also known as a 100-year flood). This term 
is used in the National Flood Insurance Program (NFIP) to indicate the 
minimum level of flooding to be used by a community in its floodplain 
management regulations.
    b. Base Floodplain means the land area covered by a 100-year flood 
(one percent chance floodplain). Also see definition of floodplain.
    c. Flood or Flooding means a general and temporary condition of 
partial or complete inundation of normally dry land areas from the 
overflow of inland and/or tidal waters, and/or the unusual and rapid 
accumulation or runoff of surface waters from any source, or flooding 
from any other source.
    d. Floodplain means the lowland and relatively flat areas adjoining 
inland and coastal waters and other floodprone areas such as offshore 
islands, including at a minimum, that area subject to a one percent or 
greater chance of flooding in any given year. The base floodplain shall 
be used to designate the 100-year floodplain (one percent chance 
floodplain). The critical action floodplain is defined as the 500-year 
floodplain (0.2 percent chance floodplain).
    e. Floodproofing means modification of individual structures and 
facilities, their sites, and their contents to protect against 
structural failure, to keep water out or to reduce effects of water 
entry.
    f. Minimize means to reduce to the smallest possible amount or 
degree.
    g. Practicable means capable of being done within existing 
constraints. The test of what is practicable depends upon the situation 
and includes consideration of the pertinent factors such as environment, 
community welfare, cost, or technology.
    h. Preserve means to prevent modification to the natural floodplain 
environment or to maintain it as closely as possible to its natural 
state.
    i. Restore means to re-establish a setting or environment in which 
the natural functions of the floodplain can again operate.
    j. Wetlands means those areas that are inundated by surface or 
ground water with a frequency sufficient to support and under normal 
circumstances does or would support a prevalence of vegetative or 
aquatic life that requires saturated or seasonally saturated soil 
conditions for growth and reproduction. Wetlands generally include 
swamps, marshes, bogs, and similar areas such as sloughs, potholes, wet 
meadows, river overflows, mud flats, and natural ponds.

                        Section 5  Applicability

    a. The Executive Orders apply to activities of Federal agencies 
pertaining to (1) acquiring, managing, and disposing of Federal lands 
and facilities, (2) providing Federally undertaken, financed, or 
assisted construction and improvements, and (3) conducting Federal 
activities and programs affecting land use, including but not limited to 
water and related land resources planning, regulating, and licensing 
activities.
    b. These procedures shall apply to EPA's programs as follows: (1) 
All Agency actions involving construction of facilities or management of 
lands or property. This will require amendment of the EPA Facilities 
Management Manual (October 1973 and revisions thereafter).
    (2) All Agency actions where the NEPA process applies. This would 
include the programs under sections 306/402 of the Clean Water Act 
pertaining to new source permitting and section 201 of the Clean Water 
Act pertaining to wastewater treatment construction grants.
    (3) All agency actions where there is sufficient independent 
statutory authority to carry out the floodplain/wetlands procedures.
    (4) In program areas where there is no EIS requirement nor clear 
statutory authority for EPA to require procedural implementation, EPA 
shall continue to provide leadership and offer guidance so that the 
value of floodplain management and wetlands protection can be understood 
and carried out to the maximum extent practicable in these programs.
    c. These procedures shall not apply to any permitting or source 
review programs of EPA once such authority has been transferred or 
delegated to a State. However, EPA shall, to the extent possible, 
require States to provide equivalent effort to assure support for the 
objectives of these procedures as part of the state assumption process.

                         Section 6  Requirements

    a. Floodplain/Wetlands review of proposed Agency actions.
    (1) Floodplain/Wetlands Determination--Before undertaking an Agency 
action, each program office must determine whether or not the action 
will be located in or affect a floodplain or wetlands. The Agency shall 
utilize maps prepared by the Federal Insurance Administration of the 
Federal Emergency Management Agency (Flood Insurance Rate Maps or Flood 
Hazard Boundary Maps), Fish and Wildlife Service (National Wetlands 
Inventory Maps), and other appropriate agencies to determine whether a 
proposed action is located in or will likely affect a floodplain or 
wetlands. If there is no floodplain/wetlands impact identified, the 
action may proceed without further consideration of the remaining 
procedures set forth below.

[[Page 136]]

    (2) Early Public Notice--When it is apparent that a proposed or 
potential agency action is likely to impact a floodplain or wetlands, 
the public should be informed through appropriate public notice 
procedures.
    (3) Floodplain/Wetlands Assessment--If the Agency determines a 
proposed action is located in or affects a floodplain or wetlands, a 
floodplain/wetlands assessment shall be undertaken. For those actions 
where an environmental assessment (EA) or environmental impact statement 
(EIS) is prepared pursuant to 40 CFR part 6, the floodplain/wetlands 
assessment shall be prepared concurrently with these analyses and shall 
be included in the EA or EIS. In all other cases, a floodplain/wetlands 
assessment shall be prepared. Assessments shall consist of a description 
of the proposed action, a discussion of its effect on the floodplain/
wetlands, and shall also describe the alternatives considered.
    (4) Public Review of Assessments--For proposed actions impacting 
floodplain/wetlands where an EA or EIS is prepared, the opportunity for 
public review will be provided through the EIS provisions contained in 
40 CFR parts 6, 25, or 35, where appropriate. In other cases, an 
equivalent public notice of the floodplain/wetlands assessment shall be 
made consistent with the public involvement requirements of the 
applicable program.
    (5) Minimize, Restore or Preserve--If there is no practicable 
alternative to locating in or affecting the floodplain or wetlands, the 
Agency shall act to minimize potential harm to the floodplain or 
wetlands. The Agency shall also act to restore and preserve the natural 
and beneficial values of floodplains and wetlands as part of the 
analysis of all alternatives under consideration.
    (6) Agency Decision--After consideration of alternative actions, as 
they have been modified in the preceding analysis, the Agency shall 
select the desired alternative. For all Agency actions proposed to be in 
or affecting a floodplain/wetlands, the Agency shall provide further 
public notice announcing this decision. This decision shall be 
accompanied by a Statement of Findings, not to exceed three pages. This 
Statement shall include: (i) The reasons why the proposed action must be 
located in or affect the floodplain or wetlands; (ii) a description of 
significant facts considered in making the decision to locate in or 
affect the floodplain or wetlands including alternative sites and 
actions; (iii) a statement indicating whether the proposed action 
conforms to applicable State or local floodplain protection standards; 
(iv) a description of the steps taken to design or modify the proposed 
action to minimize potential harm to or within the floodplain or 
wetlands; and (v) a statement indicating how the proposed action affects 
the natural or beneficial values of the floodplain or wetlands. If the 
provisions of 40 CFR part 6 apply, the Statement of Findings may be 
incorporated in the final EIS or in the environmental assessment. In 
other cases, notice should be placed in the Federal Register or other 
local medium and copies sent to Federal, State, and local agencies and 
other entities which submitted comments or are otherwise concerned with 
the floodplain/wetlands assessment. For floodplain actions subject to 
Office of Management and Budget (OMB) Circular A-95, the Agency shall 
send the Statement of Findings to State and areawide A-95 clearinghouse 
in the geographic area affected. At least 15 working days shall be 
allowed for public and interagency review of the Statement of Findings.
    (7) Authorizations/Appropriations--Any requests for new 
authorizations or appropriations transmitted to OMB shall include, a 
floodplain/wetlands assessment and, for floodplain impacting actions, a 
Statement of Findings, if a proposed action will be located in a 
floodplain or wetlands.
    b. Lead agency concept. To the maximum extent possible, the Agency 
shall relay on the lead agency concept to carry out the provisions set 
forth in section 6.a of this appendix. Therefore, when EPA and another 
Federal agency have related actions, EPA shall work with the other 
agency to identify which agency shall take the lead in satisfying these 
procedural requirements and thereby avoid duplication of efforts.
    c. Additional floodplain management provisions relating to Federal 
property and facilities.
    (1) Construction Activities--EPA controlled structures and 
facilities must be constructed in accordance with existing criteria and 
standards set forth under the NFIP and must include mitigation of 
adverse impacts wherever feasible. Deviation from these requirements may 
occur only to the extent NFIP standards are demonstrated as 
inappropriate for a given structure or facility.
    (2) Flood Protection Measures--If newly constructed structures or 
facilities are to be located in a floodplain, accepted floodproofing and 
other flood protection measures shall be undertaken. To achieve flood 
protection, EPA shall, wherever practicable, elevate structures above 
the base flood level rather than filling land.
    (3) Restoration and Preservation--As part of any EPA plan or action, 
the potential for restoring and preserving floodplains and wetlands so 
that their natural and beneficial values can be realized must be 
considered and incorporated into the plan or action wherever feasible.
    (4) Property Used by Public--If property used by the public has 
suffered damage or is located in an identified flood hazard area, EPA 
shall provide on structures, and other places where appropriate, 
conspicuous indicators of past and probable flood height to enhance 
public knowledge of flood hazards.

[[Page 137]]

    (5) Transfer of EPA Property--When property in flood plains is 
proposed for lease, easement, right-of-way, or disposal to non-Federal 
public or private parties, EPA shall reference in the conveyance those 
uses that are restricted under Federal, State and local floodplain 
regulations and attach other restrictions to uses of the property as may 
be deemed appropriate. Notwithstanding, EPA shall consider withholding 
such properties from conveyance.

                        Section 7  Implementation

    a. Pursuant to section 2, the EPA program offices shall amend 
existing regulations, procedures, and guidance, as appropriate, to 
incorporate the policies and procedures set forth in this Statement of 
Procedures. Such amendments shall be made within six months of the date 
of these Procedures.
    b. The Office of External Affairs (OEA) is responsible for the 
oversight of the implementation of this Statement of Procedures and 
shall be given advanced opportunity to review amendments to regulations, 
procedures, and guidance. OEA shall coordinate efforts with the program 
offices to develop necessary manuals and more specialized supplementary 
guidance to carry out this Statement of Procedures.

[44 FR 64177, Nov. 6, 1976, as amended at 50 FR 26323, June 25, 1985]



PART 7--NONDISCRIMINATION IN PROGRAMS RECEIVING FEDERAL ASSISTANCE FROM THE ENVIRONMENTAL PROTECTION AGENCY--Table of Contents




                           Subpart A--General

Sec.
7.10  Purpose of this part.
7.15  Applicability.
7.20  Responsible agency officers.
7.25  Definitions.

   Subpart B--Discrimination Prohibited on the Basis of Race, Color, 
                         National Origin or Sex

7.30  General prohibition.
7.35  Specific prohibitions.

      Subpart C--Discrimination Prohibited on the Basis of Handicap

7.45  General prohibition.
7.50  Specific prohibitions against discrimination.
7.55  Separate or different programs.
7.60  Prohibitions and requirements relating to employment.
7.65  Accessibility.
7.70  New construction.
7.75  Transition plan.

          Subpart D--Requirements for Applicants and Recipients

7.80  Applicants.
7.85  Recipients.
7.90  Grievance procedures.
7.95  Notice of nondiscrimination.
7.100  Intimidation and retaliation prohibited.

                 Subpart E--Agency Compliance Procedures

7.105  General policy.
7.110  Preaward compliance.
7.115  Postaward compliance.
7.120  Complaint investigations.
7.125  Coordination with other agencies.
7.130  Actions available to EPA to obtain compliance.
7.135  Procedure for regaining eligibility.

Appendix A to Part 7--EPA Assistance Programs as Listed in the ``Catalog 
          of Federal Domestic Assistance''

    Authority: 42 U.S.C. 2000d to 2000d-4; 29 U.S.C. 794; 33 U.S.C. 1251 
nt.

    Source: 49 FR 1659, Jan. 12, 1984, unless otherwise noted.



                           Subpart A--General



Sec. 7.10  Purpose of this part.

    This part implements: Title VI of the Civil Rights Act of 1964, as 
amended; section 504 of the Rehabilitation Act of 1973, as amended; and 
section 13 of the Federal Water Pollution Control Act Amendments of 
1972, Public Law 92-500, (collectively, the Acts).



Sec. 7.15  Applicability.

    This part applies to all applicants for, and recipients of, EPA 
assistance in the operation of programs or activities receiving such 
assistance beginning February 13, 1984. New construction (Sec. 7.70) for 
which design was initiated prior to February 13, 1984, shall comply with 
the accessibility requirements in the Department of Health, Education 
and Welfare (now the Department of Health and Human Services) 
nondiscrimination regulation, 45 CFR 84.23, issued June 3, 1977, or with 
equivalent standards that ensure the facility is readily accessible to 
and usable by handicapped persons. Such assistance includes but is not 
limited to that which is listed in the Catalogue of Federal Domestic 
Assistance under the

[[Page 138]]

66.000 series. It supersedes the provisions of former 40 CFR parts 7 and 
12.



Sec. 7.20  Responsible agency officers.

    (a) The EPA Office of Civil Rights (OCR) is responsible for 
developing and administering EPA's compliance programs under the Acts.
    (b) EPA's Project Officers will, to the extent possible, be 
available to explain to each recipient its obligations under this part 
and to provide recipients with technical assistance or guidance upon 
request.



Sec. 7.25  Definitions.

    As used in this part:
    Administrator means the Administrator of EPA. It includes any other 
agency official authorized to act on his or her behalf, unless explicity 
stated otherwise.
    Alcohol abuse means any misuse of alcohol which demonstrably 
interferes with a person's health, interpersonal relations or working 
ability.
    Applicant means any entity that files an application or unsolicited 
proposal or otherwise requests EPA assistance (see definition for EPA 
assistance).
    Assistant Attorney General is the head of the Civil Rights Division, 
U.S. Department of Justice.
    Award Official means the EPA official with the authority to approve 
and execute assistance agreements and to take other assistance related 
actions authorized by this part and by other EPA regulations or 
delegation of authority.
    Drug abuse means:
    (a) The use of any drug or substance listed by the Department of 
Justice in 21 CFR 1308.11, under authority of the Controlled Substances 
Act, 21 U.S.C. 801, as a controlled substance unavailable for 
prescription because:
    (1) The drug or substance has a high potential for abuse,
    (2) The drug or other substance has no currently accepted medical 
use in treatment in the United States, or
    (3) There is a lack of accepted safety for use of the drug or other 
substance under medical supervision.

    Note: Examples of drugs under paragraph (a)(1) of this section 
include certain opiates and opiate derivatives (e.g., heroin) and 
hallucinogenic substances (e.g., marijuana, mescaline, peyote) and 
depressants (e.g., methaqualone). Examples of (a)(2) include opium, coca 
leaves, methadone, amphetamines and barbiturates.

    (b) The misuse of any drug or substance listed by the Department of 
Justice in 21 CFR 1308.12-1308.15 under authority of the Controlled 
Substances Act as a controlled substance available for prescription.
    EPA means the United States Environmental Protection Agency.
    EPA assistance means any grant or cooperative agreement, loan, 
contract (other than a procurement contract or a contract of insurance 
or guaranty), or any other arrangement by which EPA provides or 
otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of personnel; or
    (3) Real or personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if EPA's share of its fair market value is not returned to EPA.
    Facility means all, or any part of, or any interests in structures, 
equipment, roads, walks, parking lots, or other real or personal 
property.
    Handicapped person:
    (a) Handicapped person means any person who (1) has a physical or 
mental impairment which substantially limits one or more major life 
activities, (2) has a record of such an impairment, or (3) is regarded 
as having such an impairment. For purposes of employment, the term 
handicapped person does not include any person who is an alcoholic or 
drug abuser whose current use of alcohol or drugs prevents such 
individual from performing the duties of the job in question or whose 
employment, by reason of such current drug or alcohol abuse, would 
constitute a direct threat to property or the safety of others.
    (b) As used in this paragraph, the phrase:
    (1) Physical or mental impairment means (i) any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: Neurological; 
musculoskeletal; special sense

[[Page 139]]

organs; respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and 
endocrine; and (ii) any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (2) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means:
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but that is treated by a recipient as 
constituting such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined above but is treated by a 
recipient as having such an impairment.
    Office of Civil Rights or OCR means the Director of the Office of 
Civil Rights, EPA Headquarters or his/her designated representative.
    Project Officer means the EPA official designated in the assistance 
agreement (as defined in EPA assistance) as EPA's program contact with 
the recipient; Project Officers are responsible for monitoring the 
project.
    Qualified handicapped person means:
    (a) With respect to employment: A handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question.
    (b) With respect to services: A handicapped person who meets the 
essential eligibility requirements for the receipt of such services.
    Racial classifications: 1
---------------------------------------------------------------------------

    \1\ Additional subcategories based on national origin or primary 
language spoken may be used where appropriate on either a national or a 
regional basis. Subparagraphs (a) through (e) are in conformity with 
Directive 15 of the Office of Federal Statistical Policy and Standards, 
whose function is now in the Office of Information and Regulatory 
Affairs, Office of Management and Budget. Should that office, or any 
successor office, change or otherwise amend the categories listed in 
Directive 15, the categories in this paragraph shall be interpreted to 
conform with any such changes or amendments.
---------------------------------------------------------------------------

    (a) American Indian or Alaskan native. A person having origins in 
any of the original peoples of North America, and who maintains cultural 
identification through tribal affiliation or community recognition.
    (b) Asian or Pacific Islander. A person having origins in any of the 
original peoples of the Far East, Southeast Asia, the Indian 
subcontinent, or the Pacific Islands. This area includes, for example, 
China, Japan, Korea, the Philippine Islands, and Samoa.
    (c) Black and not of Hispanic origin. A person having origins in any 
of the black racial groups of Africa.
    (d) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or 
South American or other Spanish culture or origin, regardless or race.
    (e) White, not of Hispanic origin. A person having origins in any of 
the original peoples of Europe, North Africa, or the Middle East.
    Recipient means, for the purposes of this regulation, any state or 
its political subdivision, any instrumentality of a state or its 
political subdivision, any public or private agency, institution, 
organization, or other entity, or any person to which Federal financial 
assistance is extended directly or through another recipient, including 
any successor, assignee, or transferee of a recipient, but excluding the 
ultimate beneficiary of the assistance.
    Section 13 refers to section 13 of the Federal Water Pollution 
Control Act Amendments of 1972.
    United States includes the states of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, 
American Samoa, Guam, Wake Island, the Canal Zone, and all other 
territories and possessions of the United States; the term State 
includes any one of the foregoing.

[[Page 140]]



   Subpart B--Discrimination Prohibited on the Basis of Race, Color, 
                         National Origin or Sex



Sec. 7.30   General prohibition.

    No person shall be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any program or 
activity receiving EPA assistance on the basis of race, color, national 
origin, or on the basis of sex in any program or activity receiving EPA 
assistance under the Federal Water Pollution Control Act, as amended, 
including the Environmental Financing Act of 1972.



Sec. 7.35   Specific prohibitions.

    (a) As to any program or activity receiving EPA assistance, a 
recipient shall not directly or through contractual, licensing, or other 
arrangements on the basis of race, color, national origin or, if 
applicable, sex:
    (1) Deny a person any service, aid or other benefit of the program;
    (2) Provide a person any service, aid or other benefit that is 
different, or is provided differently from that provided to others under 
the program;
    (3) Restrict a person in any way in the enjoyment of any advantage 
or privilege enjoyed by others receiving any service, aid, or benefit 
provided by the program;
    (4) Subject a person to segregation in any manner or separate 
treatment in any way related to receiving services or benefits under the 
program;
    (5) Deny a person or any group of persons the opportunity to 
participate as members of any planning or advisory body which is an 
integral part of the program, such as a local sanitation board or sewer 
authority;
    (6) Discriminate in employment on the basis of sex in any program 
subject to section 13, or on the basis of race, color, or national 
origin in any program whose purpose is to create employment; or, by 
means of employment discrimination, deny intended beneficiaries the 
benefits of the EPA assistance program, or subject the beneficiaries to 
prohibited discrimination.
    (7) In administering a program or activity receiving Federal 
financial assistance in which the recipient has previously discriminated 
on the basis of race, color, sex, or national origin, the recipient 
shall take affirmative action to provide remedies to those who have been 
injured by the discrimination.
    (b) A recipient shall not use criteria or methods of administering 
its program which have the effect of subjecting individuals to 
discrimination because of their race, color, national origin, or sex, or 
have the effect of defeating or substantially impairing accomplishment 
of the objectives of the program with respect to individuals of a 
particular race, color, national origin, or sex.
    (c) A recipient shall not choose a site or location of a facility 
that has the purpose or effect of excluding individuals from, denying 
them the benefits of, or subjecting them to discrimination under any 
program to which this part applies on the grounds of race, color, or 
national origin or sex; or with the purpose or effect of defeating or 
substantially impairing the accomplishment of the objectives of this 
subpart.
    (d) The specific prohibitions of discrimination enumerated above do 
not limit the general prohibition of Sec. 7.30.



      Subpart C--Discrimination Prohibited on the Basis of Handicap



Sec. 7.45  General prohibition.

    No qualified handicapped person shall solely on the basis of 
handicap be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity receiving EPA assistance.



Sec. 7.50   Specific prohibitions against discrimination.

    (a) A recipient, in providing any aid, benefit or service under any 
program or activity receiving EPA assistance shall not, on the basis of 
handicap, directly or through contractual, licensing, or other 
arrangement:
    (1) Deny a qualified handicapped person any service, aid or other 
benefit of a federally assisted program;
    (2) Provide different or separate aids, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless the action is necessary to provide

[[Page 141]]

qualified handicapped persons with aids, benefits, or services that are 
as effective as those provided to others;
    (3) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an entity that 
discriminates on the basis of handicap in providing aids, benefits, or 
services to beneficiaries of the recipient's program;
    (4) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (5) Limit a qualified handicapped person in any other way in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit or service from the program.
    (b) A recipient may not, in determining the site or location of a 
facility, make selections: (1) That have the effect of excluding 
handicapped persons from, denying them the benefits of, or otherwise 
subjecting them to discrimination under any program or activity that 
receives or benefits from EPA assistance or (2) that have the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of the program or activity receiving EPA assistance with 
respect to handicapped persons.
    (c) A recipient shall not use criteria or methods of administering 
any program or activity receiving EPA assistance which have the effect 
of subjecting individuals to discrimination because of their handicap, 
or have the effect of defeating or substantially impairing 
accomplishment of the objectives of such program or activity with 
respect to handicapped persons.
    (d) Recipients shall take appropriate steps to ensure that 
communications with their applicants, employees, and beneficiaries are 
available to persons with impaired vision and hearing.
    (e) The exclusion of non-handicapped persons or specified classes of 
handicapped persons from programs limited by Federal statute or 
Executive Order to handicapped persons or a different class of 
handicapped persons is not prohibited by this subpart.



Sec. 7.55  Separate or different programs.

    Recipients shall not deny a qualified handicapped person an 
opportunity equal to that afforded others to participate in or benefit 
from the aid, benefit, or service in the program receiving EPA 
assistance. Recipients shall administer programs in the most integrated 
setting appropriate to the needs of qualified handicapped persons.



Sec. 7.60  Prohibitions and requirements relating to employment.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be subjected to discrimination in employment under any program or 
activity that receives or benefits from Federal assistance.
    (b) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap does not occur, and 
shall not limit, segregate, or classify applicants or employees in any 
way that adversely affects their opportunities or status because of 
handicap.
    (c) The prohibition against discrimination in employment applies to 
the following activities:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;

[[Page 142]]

    (8) Employer sponsored activities, including social or recreational 
programs; or
    (9) Any other term, condition, or privilege of employment.
    (d) A recipient shall not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this paragraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeship programs.
    (e) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program.
    (f) A recipient shall not use employment tests or criteria that 
discriminate against handicapped persons and shall ensure that 
employment tests are adapted for use by persons who have handicaps that 
impair sensory, manual, or speaking skills.
    (g) A recipient shall not conduct a preemployment medical 
examination or make a preemployment inquiry as to whether an applicant 
is a handicapped person or as to the nature or severity of a handicap 
except as permitted by the Department of Justice in 28 CFR 42.513.



Sec. 7.65  Accessibility.

    (a) General. A recipient shall operate each program or activity 
receiving EPA assistance so that such program or activity, when viewed 
in its entirety, is readily accessible to and usable by handicapped 
persons. This paragraph does not:
    (1) Necessarily require a recipient to make each of its existing 
facilities or every part of an existing facility accessible to and 
usable by handicapped persons.
    (2) Require a recipient to take any action that the recipient can 
demonstrate would result in a fundamental alteration in the nature of 
its program or activity or in undue financial and administrative 
burdens. If an action would result in such an alternation or such 
financial and administrative burdens, the recipient shall be required to 
take any other action that would not result in such an alteration or 
financial and administrative burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity receiving EPA assistance.
    (b) Methods of making existing programs accessible. A recipient may 
comply with the accessibility requirements of this section by making 
structural changes, redesigning equipment, reassigning services to 
accessible buildings, assigning aides to beneficiaries, or any other 
means that make its program or activity accessible to handicapped 
persons. In choosing among alternatives, a recipient must give priority 
to methods that offer program benefits to handicapped persons in the 
most integrated setting appropriate.
    (c) Deadlines. (1) Except where structural changes in facilities are 
necessary, recipients must adhere to the provisions of this section 
within 60 days after the effective date of this part.
    (2) Recipients having an existing facility which does require 
alterations in order to make a program or activity accessible must 
prepare a transition plan in accordance with Sec. 7.75 within six months 
from the effective date of this part. The recipient must complete the 
changes as soon as possible, but not later than three years from date of 
award.
    (d) Notice of accessibility. The recipient must make sure that 
interested persons, including those with impaired vision or hearing, can 
find out about the existence and location of the assisted program 
services, activities, and facilities that are accessible to and usable 
by handicapped persons.
    (e) Structural and financial feasibility. This section does not 
require structural alterations to existing facilities if making such 
alterations would not be structurally or financially feasible. An 
alteration is not structurally feasible when it has little likelihood of 
being accomplished without removing

[[Page 143]]

or altering a load-bearing structural member. Financial feasibility 
shall take into account the degree to which the alteration work is to be 
assisted by EPA assistance, the cost limitations of the program under 
which such assistance is provided, and the relative cost of 
accomplishing such alterations in manners consistent and inconsistent 
with accessibility.



Sec. 7.70  New construction.

    (a) General. New facilities shall be designed and constructed to be 
readily accessible to and usable by handicapped persons. Alterations to 
existing facilities shall, to the maximum extent feasible, be designed 
and constructed to be readily accessible to and usable by handicapped 
persons.
    (b) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of January 18, 1991, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[49 FR 1659, Jan. 12, 1984, as amended at 55 FR 52138, 52142, Dec. 19, 
1990]



Sec. 7.75  Transition plan.

    If structural changes to facilities are necessary to make the 
program accessible to handicapped persons, a recipient must prepare a 
transition plan.
    (a) Requirements. The transition plan must set forth the steps 
needed to complete the structural changes required and must be developed 
with the assistance of interested persons, including handicapped persons 
or organizations representing handicapped persons. At a minimum, the 
transition plan must:
    (1) Identify the physical obstacles in the recipient's facilities 
that limit handicapped persons' access to its program or activity,
    (2) Describe in detail what the recipient will do to make the 
facilities accessible,
    (3) Specify the schedule for the steps needed to achieve full 
program accessibility, and include a year-by-year timetable if the 
process will take more than one year,
    (4) Indicate the person responsible for carrying out the plan.
    (b) Availability. Recipients shall make available a copy of the 
transition plan to the OCR upon request and to the public for inspection 
at either the site of the project or at the recipient's main office.



          Subpart D--Requirements for Applicants and Recipients



Sec. 7.80  Applicants.

    (a) Assurances--(1) General. Applicants for EPA assistance shall 
submit an assurance with their applications stating that, with respect 
to their programs or activities that receive EPA assistance, they will 
comply with the requirements of this part. Applicants must also submit 
any other information that the OCR determines is necessary for preaward 
review. The applicant's acceptance of EPA assistance is an acceptance of 
the obligation of this assurance and this part.
    (2) Duration of assurance--(i) Real property. When EPA awards 
assistance in the form of real property, or assistance to acquire real 
property, or structures on the property, the assurance will obligate the 
recipient, or transferee, during the period the real property or 
structures are used for the purpose for which EPA assistance is 
extended, or for another purpose in which similar services or benefits 
are provided. The transfer instrument shall contain a covenant running 
with the

[[Page 144]]

land which assures nondiscrimination. Where applicable, the covenant 
shall also retain a right of reverter which will permit EPA to recover 
the property if the covenant is ever broken.
    (ii) Personal property. When EPA provides assistance in the form of 
personal property, the assurance will obligate the recipient for so long 
as it continues to own or possess the property.
    (iii) Other forms of assistance. In all other cases, the assurance 
will obligate the recipient for as long as EPA assistance is extended.
    (b) Wastewater treatment project. EPA Form 4700-4 shall also be 
submitted with applications for assistance under Title II of the Federal 
Water Pollution Control Act.
    (c) Compliance information. Each applicant for EPA assistance shall 
submit regarding the program or activity that would receive EPA 
assistance:
    (1) Notice of any lawsuit pending against the applicant alleging 
discrimination on the basis of race, color, sex, handicap, or national 
origin;
    (2) A brief description of any applications pending to other federal 
agencies for assistance, and of Federal assistance being provided at the 
time of the application; and
    (3) A statement describing any civil rights compliance reviews 
regarding the applicant conducted during the two-year period before the 
application, and information concerning the agency or organization 
performing the reviews.

 (Approved by the Office of Management and Budget under control number 
2000-0006)



Sec. 7.85  Recipients.

    (a) Compliance information. Each recipient shall collect, maintain, 
and on request of the OCR, provide the following information to show 
compliance with this part:
    (1) A brief description of any lawsuits pending against the 
recipient that allege discrimination which this part prohibits;
    (2) Racial/ethnic, national origin, sex and handicap data, or EPA 
Form 4700-4 information submitted with its application;
    (3) A log of discrimination complaints which identifies the 
complaint, the date it was filed, the date the recipient's investigation 
was completed, the disposition, and the date of disposition; and
    (4) Reports of any compliance reviews conducted by any other 
agencies.
    (b) Additional compliance information. If necessary, the OCR may 
require recipients to submit data and information specific to certain 
programs to determine compliance where there is reason to believe that 
discrimination may exist in a program or activity receiving EPA 
assistance or to investigate a complaint alleging discrimination in a 
program or activity receiving EPA assistance. Requests shall be limited 
to data and information which is relevant to determining compliance and 
shall be accompanied by a written statement summarizing the complaint or 
setting forth the basis for the belief that discrimination may exist.
    (c) Self-evaluation. Each recipient must conduct a self-evaluation 
of its administrative policies and practices, to consider whether such 
policies and practices may involve handicap discrimination prohibited by 
this part. When conducting the self-evaluation, the recipient shall 
consult with interested and involved persons including handicapped 
persons or organizations representing handicapped persons. The 
evaluation shall be completed within 18 months after the effective date 
of this part.
    (d) Preparing compliance information. In preparing compliance 
information, a recipient must:
    (1) [Reserved]
    (2) Use the racial classifications set forth in Sec. 7.25 in 
determining categories of race, color or national origin.
    (e) Maintaining compliance information. Recipients must keep records 
for paragraphs (a) and (b) of this section for three (3) years after 
completing the project. When any complaint or other action for alleged 
failure to comply with this part is brought before the three-year period 
ends, the recipient shall keep records until the complaint is resolved.
    (f) Accessibility to compliance information. A recipient shall:
    (1) Give the OCR access during normal business hours to its books, 
records, accounts and other sources of information, including its 
facilities, as

[[Page 145]]

may be pertinent to ascertain compliance with this part;
    (2) Make compliance information available to the public upon 
request; and
    (3) Assist in obtaining other required information that is in the 
possession of other agencies, institutions, or persons not under the 
recipient's control. If such party refuses to release that information, 
the recipient shall inform the OCR and explain its efforts to obtain the 
information.
    (g) Coordination of compliance effort. If the recipient employs 
fifteen (15) or more employees, it shall designate at least one person 
to coordinate its efforts to comply with its obligations under this 
part.

(Approved by the Office of Management and Budget under control number 
2000-0006)



Sec. 7.90  Grievance procedures.

    (a) Requirements. Each recipient shall adopt grievance procedures 
that assure the prompt and fair resolution of complaints which allege 
violation of this part.
    (b) Exception. Recipients with fewer than fifteen (15) full-time 
employees need not comply with this section unless the OCR finds a 
violation of this part or determines that creating a grievance procedure 
will not significantly impair the recipient's ability to provide 
benefits or services.



Sec. 7.95  Notice of nondiscrimination.

    (a) Requirements. A recipient shall provide initial and continuing 
notice that it does not discriminate on the basis of race, color, 
national origin, or handicap in a program or activity receiving EPA 
assistance or, in programs covered by section 13, on the basis of sex. 
Methods of notice must accommodate those with impaired vision or 
hearing. At a minimum, this notice must be posted in a prominent place 
in the recipient's offices or facilities. Methods of notice may also 
include publishing in newspapers and magazines, and placing notices in 
recipient's internal publications or on recipient's printed letterhead. 
Where appropriate, such notice must be in a language or languages other 
than English. The notice must identify the responsible employee 
designated in accordance with Sec. 7.85.
    (b) Deadline. Recipients of assistance must provide initial notice 
by thirty (30) calendar days after award and continuing notice for the 
duration of EPA assistance.



Sec. 7.100  Intimidation and retaliation prohibited.

    No applicant, recipient, nor other person shall intimidate, 
threaten, coerce, or discriminate against any individual or group, 
either:
    (a) For the purpose of interfering with any right or privilege 
guaranteed by the Acts or this part, or
    (b) Because the individual has filed a complaint or has testified, 
assisted or participated in any way in an investigation, proceeding or 
hearing under this part, or has opposed any practice made unlawful by 
this regulation.



                 Subpart E--Agency Compliance Procedures



Sec. 7.105  General policy.

    EPA's Administrator, Director of the Office of Civil Rights, Project 
Officers and other responsible officials shall seek the cooperation of 
applicants and recipients in securing compliance with this part, and are 
available to provide help.



Sec. 7.110  Preaward compliance.

    (a) Review of compliance information. Within EPA's application 
processing period, the OCR will determine whether the applicant is in 
compliance with this part and inform the Award Official. This 
determination will be based on the submissions required by Sec. 7.80 and 
any other information EPA receives during this time (including 
complaints) or has on file about the applicant. When the OCR cannot make 
a determination on the basis of this information, additional information 
will be requested from the applicant, local government officials, or 
interested persons or organizations, including handicapped persons or 
organizations representing such persons. The OCR may also conduct an on-
site review only when it has reason to believe discrimination may be 
occurring in a program

[[Page 146]]

or activity which is the subject of the application.
    (b) Voluntary compliance. If the review indicates noncompliance, an 
applicant may agree in writing to take the steps the OCR recommends to 
come into compliance with this part. The OCR must approve the written 
agreement before any award is made.
    (c) Refusal to comply. If the applicant refuses to enter into such 
an agreement, the OCR shall follow the procedure established by 
paragraph (b) of Sec. 7.130.



Sec. 7.115  Postaward compliance.

    (a) Periodic review. The OCR may periodically conduct compliance 
reviews of any recipient's programs or activities receiving EPA 
assistance, including the request of data and information, and may 
conduct on-site reviews when it has reason to believe that 
discrimination may be occurring in such programs or activities.
    (b) Notice of review. After selecting a recipient for review or 
initiating a complaint investigation in accordance with Sec. 7.120, the 
OCR will inform the recipient of:
    (1) The nature of and schedule for review, or investigation; and
    (2) Its opportunity, before the determination in paragraph (d) of 
this section is made, to make a written submission responding to, 
rebutting, or denying the allegations raised in the review or complaint.
    (c) Postreview notice. (1) Within 180 calendar days from the start 
of the compliance review or complaint investigation, the OCR will notify 
the recipient in writing by certified mail, return receipt requested, 
of:
    (i) Preliminary findings;
    (ii) Recommendations, if any, for achieving voluntary compliance; 
and
    (iii) Recipient's right to engage in voluntary compliance 
negotiations where appropriate.
    (2) The OCR will notify the Award Official and the Assistant 
Attorney General for Civil Rights of the preliminary findings of 
noncompliance.
    (d) Formal determination of noncompliance. After receiving the 
notice of the preliminary finding of noncompliance in paragraph (c) of 
this section, the recipient may:
    (1) Agree to the OCR's recommendations, or
    (2) Submit a written response sufficient to demonstrate that the 
preliminary findings are incorrect, or that compliance may be achieved 
through steps other than those recommended by OCR.

If the recipient does not take one of these actions within fifty (50) 
calendar days after receiving this preliminary notice, the OCR shall, 
within fourteen (14) calendar days, send a formal written determination 
of noncompliance to the recipient and copies to the Award Official and 
Assistant Attorney General.
    (e) Voluntary compliance time limits. The recipient will have ten 
(10) calendar days from receipt of the formal determination of 
noncompliance in which to come into voluntary compliance. If the 
recipient fails to meet this deadline, the OCR must start proceedings 
under paragraph (b) of Sec. 7.130.
    (f) Form of voluntary compliance agreements. All agreements to come 
into voluntary compliance must:
    (1) Be in writing;
    (2) Set forth the specific steps the recipient has agreed to take, 
and
    (3) Be signed by the Director, OCR or his/her designee and an 
official with authority to legally bind the recipient.



Sec. 7.120  Complaint investigations.

    The OCR shall promptly investigate all complaints filed under this 
section unless the complainant and the party complained against agree to 
a delay pending settlement negotiations.
    (a) Who may file a complaint. A person who believes that he or she 
or a specific class of persons has been discriminated against in 
violation of this part may file a complaint. The complaint may be filed 
by an authorized representative. A complaint alleging employment 
discrimination must identify at least one individual aggrieved by such 
discrimination. Complaints solely alleging employment discrimination 
against an individual on the basis of race, color, national origin, sex 
or religion shall be processed under the procedures for complaints of 
employment discrimination filed against recipients of federal assistance 
(see 28 CFR part 42, subpart H and 29 CFR part 1691).

[[Page 147]]

Complainants are encouraged but not required to make use of any 
grievance procedure established under Sec. 7.90 before filing a 
complaint. Filing a complaint through a grievance procedure does not 
extend the 180 day calendar requirement of paragraph (b)(2 of this 
section.
    (b) Where, when and how to file complaint. The complainant may file 
a complaint at any EPA office. The complaint may be referred to the 
region in which the alleged discriminatory acts occurred.
    (1) The complaint must be in writing and it must describe the 
alleged discriminatory acts which violate this part.
    (2) The complaint must be filed within 180 calendar days of the 
alleged discriminatory acts, unless the OCR waives the time limit for 
good cause. The filing of a grievance with the recipient does not 
satisfy the requirement that complaints must be filed within 180 days of 
the alleged discriminatory acts.
    (c) Notification. The OCR will notify the complainant and the 
recipient of the agency's receipt of the complaint within five (5) 
calendar days.
    (d) Complaint processing procedures. After acknowledging receipt of 
a complaint, the OCR will immediately initiate complaint processing 
procedures.
    (1) Preliminary investigation (i) Within twenty (20) calendar days 
of acknowledgment of the complaint, the OCR will review the complaint 
for acceptance, rejection, or referral to the appropriate Federal 
agency.
    (ii) If the complaint is accepted, the OCR will notify the 
complainant and the Award Official. The OCR will also notify the 
applicant or recipient complained against of the allegations and give 
the applicant or recipient opportunity to make a written submission 
responding to, rebutting, or denying the allegations raised in the 
complaint.
    (iii) The party complained against may send the OCR a response to 
the notice of complaint within thirty (30) calendar days of receiving 
it.
    (2) Informal resolution. (i) OCR shall attempt to resolve complaints 
informally whenever possible. When a complaint cannot be resolved 
informally, OCR shall follow the procedures established by paragraphs 
(c) through (e) of Sec. 7.115.
    (ii) [Reserved]
    (e) Confidentiality. EPA agrees to keep the complainant's identity 
confidential except to the extent necessary to carry out the purposes of 
this part, including the conduct of any investigation, hearing, or 
judicial proceeding arising thereunder. Ordinarily in complaints of 
employment discrimination, the name of the complainant will be given to 
the recipient with the notice of complaint.
    (f) [Reserved]
    (g) Dismissal of complaint. If OCR's investigation reveals no 
violation of this part, the Director, OCR, will dismiss the complaint 
and notify the complainant and recipient.



Sec. 7.125  Coordination with other agencies.

    If, in the conduct of a compliance review or an investigation, it 
becomes evident that another agency has jurisdiction over the subject 
matter, OCR will cooperate with that agency during the continuation of 
the review of investigation. EPA will:
    (a) Coordinate its efforts with the other agency, and
    (b) Ensure that one of the agencies is designated the lead agency 
for this purpose. When an agency other than EPA serves as the lead 
agency, any action taken, requirement imposed, or determination made by 
the lead agency, other than a final determination to terminate funds, 
shall have the same effect as though such action had been taken by EPA.



Sec. 7.130  Actions available to EPA to obtain compliance.

    (a) General. If compliance with this part cannot be assured by 
informal means, EPA may terminate or refuse to award or to continue 
assistance. EPA may also use any other means authorized by law to get 
compliance, including a referral of the matter to the Department of 
Justice.
    (b) Procedure to deny, annul, suspend or terminate EPA assistance.
    (1) OCR finding. If OCR determines that an applicant or recipient is 
not in compliance with this part, and if compliance cannot be achieved 
voluntarily,

[[Page 148]]

OCR shall make a finding of noncompliance. The OCR will notify the 
applicant or recipient (by registered mail, return receipt requested) of 
the finding, the action proposed to be taken, and the opportunity for an 
evidentiary hearing.
    (2) Hearing. (i) Within 30 days of receipt of the above notice, the 
applicant or recipient shall file a written answer, under oath or 
affirmation, and may request a hearing.
    (ii) The answer and request for a hearing shall be sent by 
registered mail, return receipt requested, to the Chief Administrative 
Law Judge (ALJ) (A-110), United States Environmental Protection Agency, 
401 M Street, SW., Washington, DC 20460. Upon receipt of a request for a 
hearing, the ALJ will send the applicant or recipient a copy of the 
ALJ's procedures. If the recipient does not request a hearing, it shall 
be deemed to have waived its right to a hearing, and the OCR finding 
shall be deemed to be the ALJ's determination.
    (3) Final decision and disposition. (i) The applicant or recipient 
may, within 30 days of receipt of the ALJ's determination, file with the 
Administrator its exceptions to that determination. When such exceptions 
are filed, the Administrator may, within 45 days after the ALJ's 
determination, serve to the applicant or recipient, a notice that he/she 
will review the determination. In the absence of either exceptions or 
notice of review, the ALJ's determination shall constitute the 
Administrator's final decision.
    (ii) If the Administrator reviews the ALJ's determination, all 
parties shall be given reasonable opportunity to file written 
statements. A copy of the Administrator's decision will be sent to the 
applicant or recipient.
    (iii) If the Administrator's decision is to deny an application, or 
annul, suspend or terminate EPA assistance, that decision becomes 
effective thirty (30) days from the date on which the Administrator 
submits a full written report of the circumstances and grounds for such 
action to the Committees of the House and Senate having legislative 
jurisdiction over the program or activity involved. The decision of the 
Administrator shall not be subject to further administrative appeal 
under EPA's General Regulation for Assistance Programs (40 CFR part 30, 
subpart L).
    (4) Scope of decision. The denial, annulment, termination or 
suspension shall be limited to the particular applicant or recipient who 
was found to have discriminated, and shall be limited in its effect to 
the particular program or the part of it in which the discrimination was 
found.



Sec. 7.135   Procedure for regaining eligibility.

    (a) Requirements. An applicant or recipient whose assistance has 
been denied, annulled, terminated, or suspended under this part regains 
eligibility as soon as it:
    (1) Provides reasonable assurance that it is complying and will 
comply with this part in the future, and
    (2) Satisfies the terms and conditions for regaining eligibility 
that are specified in the denial, annulment, termination or suspension 
order.
    (b) Procedure. The applicant or recipient must submit a written 
request to restore eligibility to the OCR declaring that it has met the 
requirements set forth in paragraph (a) of this section. Upon 
determining that these requirements have been met, the OCR must notify 
the Award Official, and the applicant or recipient that eligibility has 
been restored.
    (c) Rights on denial of restoration of eligibility. If the OCR 
denies a request to restore eligibility, the applicant or recipient may 
file a written request for a hearing before the EPA Chief Administrative 
Law Judge in accordance with paragraph (c) Sec. 7.130, listing the 
reasons it believes the OCR was in error.

Appendix A to Part 7--EPA Assistance Programs as Listed in the ``Catalog 
                    of Federal Domestic Assistance''

    1. Assistance provided by the Office of Air, Noise and Radiation 
under the Clean Air Act of 1977, as amended; Pub. L. 95-95, 42 U.S.C. 
7401 et seq. (ANR 66.001)
    2. Assistance provided by the Office of Air, Noise and Radiation 
under the Clean Air Act of 1977, as amended; Pub. L. 95-95, 42 U.S.C. 
7401 et seq. (ANR 66.003)
    3. Assistance provided by the Office of Water under the Clean Water 
Act of 1977, as amended; sections 101(e), 109(b), 201-05, 207,

[[Page 149]]

208(d), 210-12, 215-19, 304(d)(3), 313, 501, 502, 511 and 516(b); Pub. 
L. 97-117; Pub. L. 95-217; Pub. L. 96-483; 33 U.S.C. 1251 et seq. (OW 
66.418)
    4. Assistance provided by the Office of Water under the Clean Water 
Act of 1977, as amended; section 106; Pub. L. 95-217; 33 U.S.C. 1251 et 
seq. (OW 66.419)
    5. Assistance provided by the Office of Water under the Clean Water 
Act of 1977, as amended; Pub. L. 95-217; 33 U.S.C. 1251 et seq. (OW 
66.426)
    6. Assistance provided by the Office of Water under the Public 
Health Service Act, as amended by the Safe Drinking Water Act, Pub. L. 
93-523; as amended by Pub. L. 93-190; Pub. L. 96-63; and Pub. L. 93-502. 
(OW 66.432)
    7. Assistance provided by the Office of Water under the Safe 
Drinking Water Act, Pub. L. 93-523, as amended by Pub. L. 96-63, Pub. L. 
95-190, and Pub. L. 96-502. (OW 66.433)
    8. Assistance provided by the Office of Water under the Clean Water 
Act of 1977, section 205(g), as amended by Pub. L. 95-217 and the 
Federal Water Pollution Control Act, as amended; Pub. L. 97-117; 33 
U.S.C. 1251 et seq. (OW 66.438)
    9. Assistance provided by the Office of Water under the Resource 
Conservation and Recovery Act of 1976; as amended by the Solid Waste 
Disposal Act; Pub. L. 94-580; section 3011, 42 U.S.C. 6931, 6947, 6948-
49. (OW 66.802).
    10. Assistance provided by the Office of Research and Development 
under the Clean Air Act of 1977, as amended; Pub. L. 95-95; 42 U.S.C. et 
seq.; Clean Water Act of 1977, as amended; Pub. L. 95-217; 33 U.S.C. 
1251 et seq., section 8001 of the Solid Water Disposal Act, as amended 
by the Resource Conservation and Recovery Act of 1976; Pub. L. 94-580; 
42 U.S.C. 6901, Public Health Service Act as amended by the Safe 
Drinking Water Act as amended by Pub. L. 95-190; Federal Insecticide, 
Fungicide and Rodenticide Act; Pub. L. 95-516; 7 U.S.C. 136 et seq., as 
amended by Pub. L.'s 94-140 and 95-396; Toxic Substances Control Act; 15 
U.S.C. 2609; Pub. L. 94-469. (ORD 66.500)
    11. Assistance provided by the Office of Research and Development 
under the Clean Air Act of 1977, as amended; Pub. L. 95-95; 42 U.S.C. 
7401 et seq. (ORD 66.501)
    12. Assistance provided by the Office of Research and Development 
under the Federal Insecticide, Fungicide and Rodenticide Act, Pub. L. 
95-516, 7 U.S.C. 136 et seq., as amended by Pub. L.'s 94-140 and 95-396. 
(ORD 66.502)
    13. Assistance provided by the Office of Research and Development 
under the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act of 1976; 42 U.S.C. 6901, Pub. L. 94-580, 
section 8001. (ORD 66.504)
    14. Assistance provided by the Office of Research and Development 
under the Clean Water Act of 1977, as amended; Pub. L. 95-217; 33 U.S.C. 
1251 et seq. (ORD 66.505)
    15. Assistance provided by the Office of Research and Development 
under the Public Health Service Act as amended by the Safe Drinking 
Water Act, as amended by Pub. L. 95-190 (ORD 66.506)
    16. Assistance provided by the Office of Research and Development 
under the Toxic Substances Control Act; Pub. L. 94-469; 15 U.S.C. 2609; 
section 10. (ORD 66.507)
    17. Assistance provided by the Office of Administration, including 
but not limited to: Clean Air Act of 1977, as amended, Pub. L. 95-95; 42 
U.S.C. 7401 et seq., Clean Water Act of 1977, as amended; Pub. L. 95-
217; 33 U.S.C. 1251 et seq.; Solid Waste Disposal Act, as amended by the 
Resource Conservation and Recovery Act of 1976; 42 U.S.C. 6901; Pub. L. 
94-580; Federal Insecticide, Fungicide and Rodenticide Act; Pub. L. 92-
516; 7 U.S.C. 136 et seq. as amended by Pub. L.'s 94-140 and 95-396; 
Public Health Service Act, as amended by the Safe Drinking Water Act, as 
amended by Pub. L. 95-190. (OA 66.600)
    18. Assistance provided by the Office of Administration under the 
Clean Water Act of 1977, as amended; Pub. L. 95-217; section 213; 33 
U.S.C. 1251 et seq. (OA 66.603)
    19. Assistance provided by the Office of Enforcement Counsel under 
the Federal Insecticide and Rodenticide Act, as amended; Pub. L. 92-516; 
7 U.S.C. 136 et seq., as amended by Pub. L. 94-140, section 23(a) and 
Pub. L. 95-396. (OA 66.700)
    20. Assistance provided by the Office of Solid Waste and Emergency 
Response under the Comprehensive Environmental Responses, Compensation 
and Liability Act of 1980; Pub. L. 96-510, section 3012, 42 U.S.C. 9601, 
et seq. (OSW--number not to be assigned since Office of Management and 
Budget does not catalog one-year programs.)
    21. Assistance provided by the Office of Water under the Clean Water 
Act as amended; Pub. L. 97-117, 33 U.S.C. 1313. (OW--66.454)



PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT--Table of Contents




    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342, 
1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 
Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2, 
300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4, 300j-9, 
1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657, 11023, 11048.



Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

    This part consolidates the display of control numbers assigned to 
collections of information in certain EPA

[[Page 150]]

regulations by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (PRA). This part fulfills the requirements of 
section 3507(f) of the PRA.

------------------------------------------------------------------------
                                                            OMB control 
                     40 CFR citation                            No.     
------------------------------------------------------------------------
                           Public Information                           
                                                                        
Part 2, subpart B.......................................       2050-0143
------------------------------------------------------------------------
                                                                        
   General Regulation for Assistance Programs for Other than State and  
                           Local Governments                            
                                                                        
30.400..................................................       2030-0020
30.500..................................................       2030-0020
30.501..................................................       2030-0020
30.503..................................................       2030-0020
30.505..................................................       2030-0020
30.510..................................................       2030-0020
30.520..................................................       2030-0020
30.530..................................................       2030-0020
30.531..................................................       2030-0020
30.532..................................................       2030-0020
30.535..................................................       2030-0020
30.1002.................................................       2030-0020
30.1003.................................................       2030-0020
30.1200.................................................       2030-0020
------------------------------------------------------------------------
                                                                        
     Uniform Administrative Requirements for Grants and Cooperative     
               Agreements to State and Local Governments                
                                                                        
------------------------------------------------------------------------
31.10...................................................       2030-0020
31.20-31.21.............................................       2030-0020
31.31-31.32.............................................       2030-0020
31.36(g)-31.36(h).......................................       2030-0020
31.40...................................................       2030-0020
31.42...................................................       2030-0020
31.6....................................................       2030-0020
                                                                        
------------------------------------------------------------------------
                 Procurement Under Assistance Agreements                
                                                                        
------------------------------------------------------------------------
33.110..................................................       2030-0003
33.211..................................................       2030-0003
                                                                        
------------------------------------------------------------------------
                       State and Local Assistance                       
                                                                        
------------------------------------------------------------------------
35.2015.................................................       2040-0027
35.2025.................................................       2040-0027
35.2034.................................................       2040-0027
35.2040.................................................       2040-0027
35.2105-35.2107.........................................       2040-0027
35.2110.................................................       2040-0027
35.2114.................................................       2040-0027
35.2118.................................................       2040-0027
35.2120.................................................       2040-0027
35.2127.................................................       2040-0027
35.2130.................................................       2040-0027
35.2140.................................................       2040-0027
35.2211-35.2212.........................................       2040-0027
35.2215-35.2216.........................................       2040-0027
35.2218.................................................       2040-0027
35.3010.................................................       2040-0095
35.3030.................................................       2040-0095
35.3130.................................................       2040-0118
35.3135.................................................       2040-0118
35.3140.................................................       2040-0118
35.3145.................................................       2040-0118
35.3150.................................................       2040-0118
35.3155.................................................       2040-0118
35.3160.................................................       2040-0118
35.3165.................................................       2040-0118
35.3170.................................................       2040-0118
35.6055(a)(2)...........................................       2010-0020
35.6055(b)(1)...........................................       2010-0020
35.6055(b)(2)(i)-(ii)...................................       2010-0020
35.6105(a)(2)(i)-(v), (vii).............................       2010-0020
35.6110(b)(2)...........................................       2010-0020
35.6120.................................................       2010-0020
35.6145.................................................       2010-0020
35.6155(a), (c).........................................       2010-0020
35.6230(a), (c).........................................       2010-0020
35.6300(a)(3)...........................................       2010-0020
35.6315(c)..............................................       2010-0020
35.6320.................................................       2010-0020
35.6340(a)..............................................       2010-0020
35.6350.................................................       2010-0020
35.6500.................................................       2010-0020
35.6550(a)(1)(ii).......................................       2010-0020
35.6550(b)(1)(iii)......................................       2010-0020
35.6550(b)(2)(i)........................................       2010-0020
35.6585.................................................       2010-0020
35.6595(a)..............................................       2010-0020
35.6600(a)..............................................       2010-0020
35.6650.................................................       2010-0020
35.6655.................................................       2010-0020
35.6660.................................................       2010-0020
35.6665(a)..............................................       2010-0020
35.6700.................................................       2010-0020
35.6705.................................................       2010-0020
35.6710.................................................       2010-0020
35.6805.................................................       2010-0020
35.6815 (a), (d), (e)...................................       2010-0020
35.9000-35.9070.........................................       2040-0138
                                                                        
------------------------------------------------------------------------
 Requirements for Preparation, Adoption, and Submittal of Implementation
                                  Plans                                 
                                                                        
------------------------------------------------------------------------
51.160-51.166...........................................       2060-0003
51.321-51.323...........................................       2060-0088
51.353-51.354...........................................       2060-0252
51.365-51.366...........................................       2060-0252
51.370-51.371...........................................       2060-0252
51.850-51.860...........................................       2060-0279
                                                                        
------------------------------------------------------------------------
            Approval and Promulgation of Implementation Plans           
                                                                        
------------------------------------------------------------------------
52.21...................................................       2060-0003
52.741..................................................       2060-0203
                                                                        
------------------------------------------------------------------------
                 Outer Continental Shelf Air Regulations                
                                                                        
------------------------------------------------------------------------
55.4-55.8...............................................       2060-0249
55.11-55.14.............................................       2060-0249
                                                                        
------------------------------------------------------------------------
                    Ambient Air Quality Surveillance                    
                                                                        
------------------------------------------------------------------------
58.11-58.14.............................................       2060-0084
58.20-58.23.............................................       2060-0084
58.25-58.28.............................................       2060-0084
58.30-58.31.............................................       2060-0084
58.33...................................................       2060-0084
58.35...................................................       2060-0084
58.40-58.41.............................................       2060-0084
58.43...................................................       2060-0084
58.45...................................................       2060-0084
58.50...................................................       2060-0084
                                                                        
------------------------------------------------------------------------
         Standards of Performance for New Stationary Sources \1\        
                                                                        
------------------------------------------------------------------------
60.7(d).................................................       2060-0207

[[Page 151]]

                                                                        
60.45-60.47.............................................       2060-0026
60.46a-60.49a...........................................       2060-0023
60.40b..................................................       2060-0072
60.42b..................................................       2060-0072
60.44b-60.49b...........................................       2060-0072
60.42c..................................................       2060-0202
60.44c-60.48c...........................................       2060-0202
60.53-60.54.............................................       2060-0040
60.50a..................................................       2060-0210
60.56a-60.59a...........................................       2060-0210
60.63-60.65.............................................       2060-0025
60.73-60.74.............................................       2060-0019
60.84-60.85.............................................       2060-0041
60.93...................................................       2060-0083
60.104-60.108...........................................       2060-0022
60.113a-60.115a.........................................       2060-0121
60.113b-60.116b.........................................       2060-0074
60.123..................................................       2060-0080
60.133..................................................       2060-0110
60.142-60.144...........................................       2060-0029
60.143a-60.145a.........................................       2060-0029
60.153-60.155...........................................       2060-0035
60.192(b)...............................................       2060-0031
60.194-60.195...........................................       2060-0031
60.203-60.204...........................................       2060-0037
60.213-60.214...........................................       2060-0037
60.223-60.224...........................................       2060-0037
60.233-60.234...........................................       2060-0037
60.243-60.244...........................................       2060-0037
60.253-60.254...........................................       2060-0122
60.273-60.276...........................................       2060-0038
60.273a-60.276a.........................................       2060-0038
60.284-60.286...........................................       2060-0021
60.292-60.293...........................................       2060-0054
60.296..................................................       2060-0054
60.303..................................................       2060-0082
60.310..................................................       2060-0106
60.313-60.316...........................................       2060-0106
60.334-60.335...........................................       2060-0028
60.343-60.344...........................................       2060-0063
60.373-60.374...........................................       2060-0081
60.384-60.386...........................................       2060-0016
60.393-60.396...........................................       2060-0034
60.398..................................................       2060-0034
60.403-60.404...........................................       2060-0111
60.433-60.435...........................................       2060-0105
60.443-60.447...........................................       2060-0004
60.453-60.456...........................................       2060-0108
60.463-60.466...........................................       2060-0107
60.473-60.474...........................................       2060-0002
60.482-2................................................       2060-0012
60.482-3................................................       2060-0012
60.482-4................................................       2060-0012
60.482-7................................................       2060-0012
60.482-8................................................       2060-0012
60.482-10...............................................       2060-0012
60.483-1................................................       2060-0012
60.483-2................................................       2060-0012
60.484-60.487...........................................       2060-0012
60.493-60.496...........................................       2060-0001
60.502-60.503...........................................       2060-0006
60.505..................................................       2060-0006
60.530-60.536...........................................       2060-0161
60.537 (a)(1)-(2), (a)(4)-(5), (b)-(i)..................       2060-0161
60.538-60.539...........................................       2060-0161
60.543 (b)(2)-(4), (c)-(n)..............................       2060-0156
60.544..................................................       2060-0156
60.545 (a)-(d), (f).....................................       2060-0156
60.546 (a)-(e), (f)(4)-(6), (g)-(j).....................       2060-0156
60.547..................................................       2060-0156
60.562-1................................................       2060-0145
60.562-2................................................       2060-0145
60.563-60.565...........................................       2060-0145
60.580..................................................       2060-0073
60.583-60.585...........................................       2060-0073
60.592-60.593...........................................       2060-0067
60.603-60.604...........................................       2060-0059
60.613-60.615...........................................       2060-0197
60.622..................................................       2060-0079
60.624-60.625...........................................       2060-0079
60.632-60.636...........................................       2060-0120
60.640..................................................       2060-0120
60.642-60.644...........................................       2060-0120
60.646-60.647...........................................       2060-0120
60.663-60.665...........................................       2060-0197
60.670..................................................       2060-0050
60.672..................................................       2060-0050
60.674-60.676...........................................       2060-0050
60.683-60.685...........................................       2060-0114
60.692-1................................................       2060-0172
60.692-2................................................       2060-0172
60.692-3................................................       2060-0172
60.692-4................................................       2060-0172
60.692-5................................................       2060-0172
60.693-1................................................       2060-0172
60.693-2................................................       2060-0172
60.695-60.698...........................................       2060-0172
60.703-60.705...........................................       2060-0269
60.710..................................................       2060-0171
60.713-60.717...........................................       2060-0171
60.722-60.725...........................................       2060-0162
60.734-60.736...........................................       2060-0251
60.740..................................................       2060-0181
60.743-60.747...........................................       2060-0181
                                                                        
------------------------------------------------------------------------
      National Emission Standards for Hazardous Air Pollutants \2\      
                                                                        
------------------------------------------------------------------------
                                                                        
61.24-61.25.............................................       2060-0191
61.32-61.34.............................................       2060-0092
61.53-61.55.............................................       2060-0097
61.65(b)-(d)............................................       2060-0071
61.67-61.71.............................................       2060-0071
61.93-61.95.............................................       2060-0191
61.103-61.105...........................................       2060-0191
61.107..................................................       2060-0191
61.123-61.124...........................................       2060-0191
61.126..................................................       2060-0191
61.132-61.133...........................................       2060-0185
61.135-61.139...........................................       2060-0185
61.142..................................................       2060-0101
61.144-61.147...........................................       2060-0101
61.149..................................................       2060-0101
61.150-61.155...........................................       2060-0101
61.163-61.165...........................................       2060-0043
61.203..................................................       2060-0191
61.206-61.209...........................................       2060-0191
61.223-61.224...........................................       2060-0191
61.242-1................................................       2060-0068
61.242-2................................................       2060-0068
61.242-3................................................       2060-0068
61.242-4................................................       2060-0068
61.242-7................................................       2060-0068
61.242-8................................................       2060-0068
61.242-10...............................................       2060-0068
61.242-11...............................................       2060-0068
61.243-1................................................       2060-0068
61.243-2................................................       2060-0068
61.244-61.247...........................................       2060-0068
61.253-61.255...........................................       2060-0191
61.271-61.276...........................................       2060-0185
61.300..................................................       2060-0182
61.302-61.305...........................................       2060-0182
61.342..................................................       2060-0183

[[Page 152]]

                                                                        
61.344-61.349...........................................       2060-0183
61.354-61.357...........................................       2060-0183
                                                                        
------------------------------------------------------------------------
   National Emission Standards for Hazardous Air Pollutants for Source  
                             Categories \3\                             
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
63.52-63.56.............................................       2060-0266
63.72...................................................       2060-0222
63.74-63.79.............................................       2060-0222
63.91-63.96.............................................       2060-0264
63.103..................................................       2060-0282
63.105..................................................       2060-0282
63.117-63.118...........................................       2060-0282
63.122-63.123...........................................       2060-0282
63.129-63.130...........................................       2060-0282
63.146-63.148...........................................       2060-0282
63.151-63.152...........................................       2060-0282
63.181-63.182...........................................       2060-0282
63.302-63.311...........................................       2060-0253
63.322-63.325...........................................       2060-0234
63.345-63.347...........................................       2060-0327
63.363-63.367...........................................       2060-0283
63.403-63.406...........................................       2060-0268
63.420..................................................       2060-0325
63.422-63.428...........................................       2060-0325
63.467-63.468...........................................       2060-0273
63.525-63.528...........................................       2060-0290
63.548-63.550...........................................       2060-0296
63.563-63.567...........................................       2060-0289
63.653..................................................       2060-0340
63.654..................................................       2060-0340
63.703-63.707...........................................       2060-0326
63.752-63.753...........................................       2060-0341
63.806-63.807...........................................       2060-0324
63.829-63.830...........................................       2060-0335
                                                                        
------------------------------------------------------------------------
                 Chemical Accident Prevention Provisions                
                                                                        
------------------------------------------------------------------------
68.120 (a), (e), and (g)................................       2050-0127
                                                                        
------------------------------------------------------------------------
                     State Operating Permit Programs                    
                                                                        
------------------------------------------------------------------------
70.3-70.11..............................................       2060-0243
                                                                        
------------------------------------------------------------------------
                    Federal Operating Permit Programs                   
                                                                        
------------------------------------------------------------------------
71.5....................................................       2060-0336
71.6(a),(c),(d),(g).....................................       2060-0336
71.7....................................................       2060-0336
71.9(e)-(j).............................................       2060-0336
71.24-71.26.............................................       2060-0276
                                                                        
------------------------------------------------------------------------
                           Permits Regulation                           
                                                                        
------------------------------------------------------------------------
72.7-72.10..............................................       2060-0258
72.20-72.25.............................................       2060-0258
72.30-72.33.............................................       2060-0258
72.40-72.44.............................................       2060-0258
72.50-72.51.............................................       2060-0258
72.60-72.69.............................................       2060-0258
72.70-72.74.............................................       2060-0258
72.80-72.85.............................................       2060-0258
72.90-72.96.............................................       2060-0258
                                                                        
------------------------------------------------------------------------
                            Allowance System                            
                                                                        
------------------------------------------------------------------------
73.10-73.13.............................................       2060-0261
73.16...................................................       2060-0261
73.18-73.21.............................................       2060-0261
73.30-73.38.............................................       2060-0258
73.50-73.53.............................................       2060-0258
73.70-73.77.............................................       2060-0221
73.80-73.86.............................................       2060-0258
73.90...................................................       2060-0258
                                                                        
------------------------------------------------------------------------
                         Sulfur Dioxide Opt-ins                         
                                                                        
------------------------------------------------------------------------
74.12...................................................       2060-0258
74.14...................................................       2060-0258
74.16...................................................       2060-0258
74.18...................................................       2060-0258
74.20...................................................       2060-0258
74.22...................................................       2060-0258
74.24-74.25.............................................       2060-0258
74.41...................................................       2060-0258
74.43-74.44.............................................       2060-0258
74.46-74.47.............................................       2060-0258
74.60-74.64.............................................       2060-0258
                                                                        
------------------------------------------------------------------------
                     Continuous Emission Monitoring                     
                                                                        
------------------------------------------------------------------------
75.4-75.5...............................................       2060-0258
75.10-75.18.............................................       2060-0258
75.20-75.24.............................................       2060-0258
75.30-75.34.............................................       2060-0258
75.40-75.48.............................................       2060-0258
75.50-75.52.............................................       2060-0258
75.53-75.56.............................................       2060-0258
75.60-75.67.............................................       2060-0258
                                                                        
------------------------------------------------------------------------
               Nitrogen Oxides Emission Reduction Program               
                                                                        
------------------------------------------------------------------------
76.8-76.15..............................................       2060-0258
                                                                        
------------------------------------------------------------------------
                            Excess Emissions                            
                                                                        
------------------------------------------------------------------------
77.3-77.6...............................................       2060-0258
                                                                        
------------------------------------------------------------------------
                 Appeal Procedures for Acid Rain Program                
                                                                        
------------------------------------------------------------------------
78.1-78.20..............................................       2060-0258
                                                                        
------------------------------------------------------------------------
                Registration of Fuels and Fuel Additives                
                                                                        
------------------------------------------------------------------------
79.10-79.11.............................................       2060-0150
79.20-79.21.............................................       2060-0150
79.31-79.33.............................................       2060-0150
79.51(a), (c), (d), (g), (h)............................       2060-0150
79.52...................................................       2060-0150
79.57(a)(5).............................................       2060-0150
79.57(f)(5).............................................       2060-0150
79.58(e)................................................       2060-0150
79.59(b)-(d)............................................       2060-0150
79.60...................................................       2060-0150
79.61(e)................................................       2060-0150
79.62-79.68.............................................       2060-0297
                                                                        
------------------------------------------------------------------------
                 Regulation of Fuels and Fuel Additives                 
                                                                        
------------------------------------------------------------------------
80.20...................................................       2060-0066
80.25...................................................       2060-0066
80.27...................................................       2060-0178
80.29(c)................................................       2060-0308
80.141(c)-(f)...........................................       2060-0275
80.157..................................................       2060-0275
80.158..................................................       2060-0275

[[Page 153]]

                                                                        
80.160..................................................       2060-0275
                                                                        
------------------------------------------------------------------------
                   Protection of Stratospheric Ozone                    
                                                                        
------------------------------------------------------------------------
82.9-82.13..............................................       2060-0170
82.21...................................................       2060-0170
82.36...................................................       2060-0247
82.38...................................................       2060-0247
82.40...................................................       2060-0247
82.42...................................................       2060-0247
82.122..................................................       2060-0259
82.156..................................................       2060-0256
82.160-82.162...........................................       2060-0256
82.164..................................................       2060-0256
82.166..................................................       2060-0256
82.176(a)...............................................       2060-0226
82.176(c)(3)............................................       2060-0226
82.178..................................................       2060-0226
82.180(a)(5)............................................       2060-0226
82.180(b)(3)............................................       2060-0226
82.184(c)...............................................       2060-0226
82.184(e)...............................................       2060-0226
                                                                        
------------------------------------------------------------------------
 Control of Air Pollution From Motor Vehicles and Motor Vehicle Engines 
                                                                        
------------------------------------------------------------------------
85.503..................................................       2060-0104
85.505..................................................       2060-0104
85.1503-85.1507.........................................       2060-0095
85.1509-85.1510.........................................       2060-0095
85.1511(b)-(d), (f).....................................       2060-0095
85.1511(b)(3)...........................................       2060-0007
85.1512.................................................       2060-0095
85.1514-85.1515.........................................       2060-0095
85.1703.................................................       2060-0124
85.1705-85.1706.........................................       2060-0007
85.1901-85.1909.........................................       2060-0048
85.2112-85.2123.........................................       2060-0065
85.2114.................................................       2060-0016
85.2115.................................................       2060-0016
                                                                        
------------------------------------------------------------------------
 Control of Air Pollution From New and In-Use Motor Vehicles and New and
     In-Use Motor Vehicle Engines: Certification and Test Procedures    
                                                                        
------------------------------------------------------------------------
86.079-31-86.079-33.....................................       2060-0104
86.079-36...............................................       2060-0104
86.079-39...............................................       2060-0104
86.080-12...............................................       2060-0104
86.082-34...............................................       2060-0104
86.085-13...............................................       2060-0104
86.085-37...............................................       2060-0104
86.087-38...............................................       2060-0104
86.090-14...............................................       2060-0104
86.090-21...............................................       2060-0104
86.090-25...............................................       2060-0104
86.090-26...............................................       2060-0104
86.090-27...............................................       2060-0104
86.091-7................................................       2060-0104
86.091-15...............................................       2060-0104
86.091-21...............................................       2060-0104
86.091-23...............................................       2060-0104
86.091-28...............................................       2060-0104
86.091-30...............................................       2060-0104
86.092-14...............................................       2060-0104
86.092-15...............................................       2060-0104
86.092-23...............................................       2060-0104
86.092-24...............................................       2060-0104
86.092-26...............................................       2060-0104
86.092-35...............................................       2060-0104
86.094-7-86.094-9.......................................       2060-0104
86.094-15-86.094-16.....................................       2060-0104
86.094-17...............................................       2060-0104
86.094-18...............................................       2060-0104
86.094-21...............................................       2060-0104
86.094-23...............................................       2060-0104
86.094-24(a)(3)(iii)....................................       2060-0314
86.094-25...............................................       2060-0104
86.094-30...............................................       2060-0104
86.094-35...............................................       2060-0104
86.095-14...............................................       2060-0104
86.095-23...............................................       2060-0104
86.095-24...............................................       2060-0104
86.095-26...............................................       2060-0104
86.095-30...............................................       2060-0104
86.095-35...............................................       2060-0104
86.094-38...............................................       2060-0104
86.096-7................................................       2060-0104
86.096-8................................................       2060-0104
86.096-9................................................       2060-0104
86.096-10...............................................       2060-0104
86.096-14...............................................       2060-0104
86.096-21...............................................       2060-0104
86.096-23...............................................       2060-0104
86.096-24...............................................       2060-0104
86.096-26...............................................       2060-0104
86.096-30...............................................       2060-0104
86.096-35...............................................       2060-0104
86.097-9................................................       2060-0104
86.098-23...............................................       2060-0104
86.098-28...............................................       2060-0104
86.099-8................................................       2060-0104
86.099-9................................................       2060-0104
86.099-10...............................................       2060-0104
86.111-94...............................................       2060-0104
86.113-82...............................................       2060-0104
86.113-87...............................................       2060-0104
86.113-90...............................................       2060-0104
86.113-91...............................................       2060-0104
86.113-94...............................................       2060-0104
86.135-82...............................................       2060-0104
86.135-90...............................................       2060-0104
86.135-94...............................................       2060-0104
86.142-90...............................................       2060-0104
86.144-90...............................................       2060-0104
86.144-94...............................................       2060-0104
86.150-98...............................................       2060-0104
86.336-79...............................................       2060-0104
86.337-79...............................................       2060-0104
86.412-78...............................................       2060-0104
86.414-78...............................................       2060-0104
86.415-78...............................................       2060-0104
86.416-80...............................................       2060-0104
86.421-78...............................................       2060-0104
86.423-78...............................................       2060-0104
86.427-78...............................................       2060-0104
86.428-80...............................................       2060-0104
86.429-78...............................................       2060-0104
86.431-78...............................................       2060-0104
86.432-78...............................................       2060-0104
86.434-78...............................................       2060-0104
86.435-78...............................................       2060-0104
86.436-78...............................................       2060-0104
86.437-78...............................................       2060-0104
86.438-78...............................................       2060-0104
86.439-78...............................................       2060-0104
86.440-78...............................................       2060-0104
86.513-94...............................................       2060-0104
86.537-90...............................................       2060-0104
86.542-90...............................................       2060-0104
86.603-88...............................................       2060-0064
86.604-84...............................................       2060-0064
86.605-88...............................................       2060-0064
86.606-84...............................................       2060-0064

[[Page 154]]

                                                                        
86.607-84...............................................       2060-0064
86.608-88...............................................       2060-0064
86.608-90...............................................       2060-0064
86.608-96...............................................       2060-0104
86.609-84...............................................       2060-0064
86.609-96...............................................       2060-0104
86.612-84...............................................       2060-0064
86.614-84...............................................       2060-0064
86.615-84...............................................       2060-0064
86.709-94...............................................       2060-0104
86.709-99...............................................       2060-0104
86.884-5................................................       2060-0104
86.884-7................................................       2060-0104
86.884-9................................................       2060-0104
86.884-10...............................................       2060-0104
86.884-12...............................................       2060-0104
86.884-13...............................................       2060-0104
86.1003-88..............................................       2060-0064
86.1003-90..............................................       2060-0064
86.1004-84..............................................       2060-0064
86.1005-88..............................................       2060-0064
68.1005-90..............................................       2060-0064
86.1006-84..............................................       2060-0064
86.1007-84..............................................       2060-0064
86.1008-88..............................................       2060-0064
86.1008-90..............................................       2060-0064
86.1008-96..............................................       2060-0104
86.1009-84..............................................       2060-0064
86.1009-96..............................................       2060-0104
86.1012-84..............................................       2060-0064
86.1014-84..............................................       2060-0064
86.1015-87..............................................       2060-0064
86.1106-87..............................................       2060-0132
86.1108-87..............................................       2060-0132
86.1110-87..............................................       2060-0132
86.1111-87..............................................       2060-0104
86.1112-87-86.1115-87...................................       2060-0132
86.1213-85..............................................       2060-0104
86.1213-87..............................................       2060-0104
86.1242-85..............................................       2060-0104
86.1242-90..............................................       2060-0104
86.1308-84..............................................       2060-0104
86.1310-90..............................................       2060-0104
86.1311-94..............................................       2060-0104
86.1313-84..............................................       2060-0104
86.1313-87..............................................       2060-0104
86.1313-90..............................................       2060-0104
86.1313-91..............................................       2060-0104
86.1313-94..............................................       2060-0104
86.1314-84..............................................       2060-0104
86.1316-84..............................................       2060-0104
86.1316-90..............................................       2060-0104
86.1319-84..............................................       2060-0104
86.1319-90..............................................       2060-0104
86.1321-84..............................................       2060-0104
86.1321-90..............................................       2060-0104
86.1323-84..............................................       2060-0104
86.1327-84..............................................       2060-0104
86.1327-88..............................................       2060-0104
86.1327-90..............................................       2060-0104
86.1332-84..............................................       2060-0104
86.1332-90..............................................       2060-0104
86.1334-84..............................................       2060-0104
86.1335-90..............................................       2060-0104
86.1336-84..............................................       2060-0104
86.1340-84..............................................       2060-0104
86.1340-90..............................................       2060-0104
86.1341-90..............................................       2060-0104
86.1342-90..............................................       2060-0104
86.1344-94..............................................       2060-0104
86.1413.................................................       2060-0104
86.1427.................................................       2060-0104
86.1432.................................................       2060-0104
86.1434.................................................       2060-0104
86.1437.................................................       2060-0104
86.1442.................................................       2060-0104
86.1542-84..............................................       2060-0104
86.1544-84..............................................       2060-0104
86.2500.................................................       2060-0104
                                                                        
------------------------------------------------------------------------
                           Clean-Fuel Vehicles                          
                                                                        
------------------------------------------------------------------------
88.104-94 (a), (c), (e), (f), (g), (h), (i), (j), (k)...       2060-0104
88.105-94...............................................       2060-0104
88.204-94(b)(1).........................................       2060-0314
88.204-94(c)............................................       2060-0314
88.305-94...............................................       2060-0104
88.306-94(a), (b) introductory text.....................       2060-0104
88.306-94(b)(1).........................................       2060-0314
88.306-94(b)(2).........................................       2060-0314
88.306-94(b)(4).........................................       2060-0314
88.306-94(c)............................................       2060-0314
88.306-94(f)............................................       2060-0314
                                                                        
------------------------------------------------------------------------
        Control of Emissions From New and In-Use Nonroad Engines        
                                                                        
------------------------------------------------------------------------
89.1....................................................       2060-0124
89.2....................................................       2060-0124
89.114-96-89.120-96.....................................       2060-0287
89.122-96-89.127-96.....................................       2060-0287
89.129-96...............................................       2060-0287
89.203-96-89.207-96.....................................       2060-0287
89.209-96-89.211-96.....................................       2060-0287
89.304-96-89.331-96.....................................       2060-0287
89.404-96-89.424-96.....................................       2060-0287
89.505-89.905...........................................       2060-0064
89.511..................................................       2060-0064
89.512..................................................       2060-0064
89.603-89.605...........................................       2060-0095
89.607-89.610...........................................       2060-0095
89.611..................................................      2060-0007,
                                                               2060-0095
89.612..................................................       2060-0095
89.801..................................................       2060-0048
89.803..................................................       2060-0048
89.903..................................................       2060-0048
89.905..................................................       2060-0007
89.906..................................................       2060-0007
                                                                        
------------------------------------------------------------------------
        Control of Emissions From New and In-use Nonroad Engines        
90.107-90.108...........................................       2060-0338
90.113..................................................       2060-0338
90.115-90.124...........................................       2060-0338
90.126..................................................       2060-0338
90.304-90.329...........................................       2060-0338
90.404-90.427...........................................       2060-0338
90.505-90.509...........................................       2060-0295
90.511-90.512...........................................       2060-0295
90.604..................................................       2060-0294
90.611-90.613...........................................       2060-0294
90.800..................................................       2060-0048
90.802-90.804...........................................       2060-0048
90.806..................................................       2060-0048
90.903..................................................       2060-0124
90.905-90.906...........................................       2060-0007
                                                                        
------------------------------------------------------------------------
      Determining Conformity of Federal Actions to State or Federal     
                          Implementation Plans                          
                                                                        
------------------------------------------------------------------------
93.150-93.160...........................................       2060-0279
                                                                        
------------------------------------------------------------------------

[[Page 155]]

                                                                        
                        Mandatory Patent Licenses                       
                                                                        
------------------------------------------------------------------------
95.2....................................................       2060-0307
                                                                        
------------------------------------------------------------------------
                        Oil Pollution Prevention                        
                                                                        
------------------------------------------------------------------------
112.1-112.7.............................................       2050-0021
                                                                        
------------------------------------------------------------------------
 Oil Pollution Prevention; Non-Transportation-Related Onshore Facilities
                                                                        
------------------------------------------------------------------------
112.20..................................................       2050-0135
                                                                        
------------------------------------------------------------------------
   Designation, Reportable Quantities, and Notification for Hazardous   
                               Substances                               
                                                                        
------------------------------------------------------------------------
116.4...................................................       2050-0046
117.3...................................................       2050-0046
117.21..................................................       2050-0046
                                                                        
------------------------------------------------------------------------
   EPA Administered Permit Programs: The National Pollutant Discharge   
                           Elimination System                           
                                                                        
------------------------------------------------------------------------
122.21(f)-(l)...........................................      2040-0086,
                                                               2040-0170
122.21(j)(4)............................................       2040-0150
122.21(m)-(p)...........................................      2040-0068,
                                                               2040-0170
122.26(c), (d)..........................................       2040-0086
122.41(h)...............................................      2040-0068,
                                                               2040-0170
122.41(j)...............................................      2040-0009,
                                                              2040-0110,
                                                               2040-0170
122.41(l)...............................................      2040-0110,
                                                              2040-0068,
                                                               2040-0170
122.42(c)...............................................       2040-0086
122.42(a), (b), (l).....................................      2040-0068,
                                                               2040-0170
122.44(g), (i)..........................................      2040-0004,
                                                               2040-0170
122.44(r)...............................................       2040-0180
122.45(b)...............................................      2040-0004,
                                                               2040-0110
122.45(b)(4)............................................       2040-0068
122.47(a)...............................................      2040-0110,
                                                               2040-0170
122.47(b)...............................................      2040-0110,
                                                              2040-0068,
                                                               2040-0170
122.48..................................................      2040-0004,
                                                               2040-0170
122.62(a)...............................................      2040-0068,
                                                               2040-0170
122.63..................................................      2040-0068,
                                                               2040-0170
                                                                        
------------------------------------------------------------------------
                        State Permit Requirements                       
                                                                        
------------------------------------------------------------------------
123.21-123.24...........................................      2040-0057,
                                                               2040-0170
123.25..................................................      2040-0004,
                                                              2040-0110,
                                                              2040-0170,
                                                               2040-0180
123.26-123.29...........................................      2040-0057,
                                                               2040-0170
123.43..................................................      2040-0057,
                                                               2040-0170
123.44..................................................      2040-0057,
                                                              2040-0170,
                                                               2040-0180
123.45..................................................      2040-0057,
                                                               2040-0170
123.62..................................................      2040-0057,
                                                              2040-0170,
                                                               2040-0180
123.63..................................................      2040-0057,
                                                              2040-0170,
                                                               2040-0180
123.64..................................................      2040-0057,
                                                               2040-0170
                                                                        
------------------------------------------------------------------------
                      Procedures for Decisionmaking                     
                                                                        
------------------------------------------------------------------------
124.5...................................................       2040-0068
124.31..................................................       2050-0149
124.32..................................................       2050-0149
124.33..................................................       2050-0149
124.53-124.54...........................................       2040-0057
                                                                        
------------------------------------------------------------------------
 Criteria and Standards for the National Pollutant Discharge Elimination
                                 System                                 
                                                                        
------------------------------------------------------------------------
125.59-125.67, and Appendix A and B.....................       2040-0088
                                                                        
------------------------------------------------------------------------
                  Water Quality Planning and Management                 
                                                                        
------------------------------------------------------------------------
130.6-130.10............................................       2040-0071
130.15..................................................       2040-0071
                                                                        
------------------------------------------------------------------------
                   Water Quality Standards Regulation                   
                                                                        
------------------------------------------------------------------------
131.1...................................................       2040-0180
131.5...................................................       2040-0180
131.6-131.8.............................................       2040-0049
131.20..................................................       2040-0049
131.21..................................................      2040-0049,
                                                               2040-0180
131.22..................................................       2040-0049
131.31-131.36...........................................       2040-0049
                                                                        
------------------------------------------------------------------------
            Water Quality Guidance for the Great Lakes System           
                                                                        
------------------------------------------------------------------------
132.1...................................................       2040-0180
132.2...................................................       2040-0180
132.3...................................................       2040-0180
132.4...................................................       2040-0180
132.5...................................................       2040-0180
Part 132, Appendix A....................................       2040-0180
Part 132, Appendix B....................................       2040-0180
Part 132, Appendix C....................................       2040-0180
Part 132, Appendix D....................................       2040-0180
Part 132, Appendix E....................................       2040-0180
Part 132, Appendix F....................................       2040-0180
                                                                        
------------------------------------------------------------------------
              National Primary Drinking Water Regulations               
                                                                        
------------------------------------------------------------------------
141.2...................................................       2040-0090
141.4...................................................       2040-0090
141.11-141.15...........................................       2040-0090
141.21-141.22...........................................       2040-0090
141.23-141.24...........................................       2040-0090
141.25-141.30...........................................       2040-0090
141.31-141.32...........................................       2040-0090

[[Page 156]]

                                                                        
141.33-141.35...........................................       2040-0090
141.40..................................................       2040-0090
141.41-141.43...........................................       2040-0090
141.50-141.52...........................................       2040-0090
141.60-141.63...........................................       2040-0090
141.70-141.75...........................................       2040-0090
141.80-141.91...........................................       2040-0090
141.100.................................................       2040-0090
141.110-141.111.........................................       2040-0090
                                                                        
------------------------------------------------------------------------
       National Primary Drinking Water Regulations Implementation       
                                                                        
------------------------------------------------------------------------
142.2-142.3.............................................       2040-0090
142.10-142.15...........................................       2040-0090
142.16..................................................       2060-0090
142.17-142.24...........................................       2040-0090
142.56-142.57...........................................       2040-0090
142.60-142.61...........................................       2040-0090
142.62..................................................       2040-0090
142.63-142.64...........................................       2040-0090
142.70-142.78...........................................       2040-0090
142.81-142.81...........................................       2040-0090
                                                                        
------------------------------------------------------------------------
                  Underground Injection Control Program                 
                                                                        
------------------------------------------------------------------------
144.8...................................................       2040-0042
144.12..................................................       2040-0042
144.14-144.15...........................................       2040-0042
144.23..................................................       2040-0042
144.25-144.28...........................................       2040-0042
144.31-144.33...........................................       2040-0042
144.38..................................................       2040-0042
144.41..................................................       2040-0042
144.51-144.55...........................................       2040-0042
144.62-144.66...........................................       2040-0042
144.70..................................................       2040-0042
                                                                        
------------------------------------------------------------------------
      Underground Injection Control Program: Criteria and Standards     
                                                                        
------------------------------------------------------------------------
146.10..................................................       2040-0042
146.12-146.15...........................................       2040-0042
146.22-146.25...........................................       2040-0042
146.32-146.35...........................................       2040-0042
146.52..................................................       2040-0042
146.64..................................................       2040-0042
146.66-146.73...........................................       2040-0042
                                                                        
------------------------------------------------------------------------
              State Underground Injection Control Programs              
                                                                        
------------------------------------------------------------------------
147.104.................................................       2040-0042
147.304-147.305.........................................       2040-0042
147.504.................................................       2040-0042
147.754.................................................       2040-0042
147.904.................................................       2040-0042
147.1154................................................       2040-0042
147.1354-147.1355.......................................       2040-0042
147.1454................................................       2040-0042
147.1654................................................       2040-0042
147.1954................................................       2040-0042
147.2103-147.2104.......................................       2040-0042
147.2154................................................       2040-0042
147.2402................................................       2040-0042
147.2905................................................       2040-0042
147.2912-147.2913.......................................       2040-0042
147.2915................................................       2040-0042
147.2918................................................       2040-0042
147.2920-147.2926.......................................       2040-0042
147.2929................................................       2040-0042
147.3002-147.3003.......................................       2040-0042
147.3006-147.3007.......................................       2040-0042
147.3011................................................       2040-0042
147.3014-147.3016.......................................       2040-0042
147.3101................................................       2040-0042
147.3104-147.3105.......................................       2040-0042
147.3107-147.3109.......................................       2040-0042
                                                                        
------------------------------------------------------------------------
                 Hazardous Waste Injection Restrictions                 
                                                                        
------------------------------------------------------------------------
148.5...................................................       2040-0042
148.20-148.23...........................................       2040-0042
                                                                        
------------------------------------------------------------------------
          Pesticide Registration and Classification Procedures          
                                                                        
------------------------------------------------------------------------
152.46..................................................       2070-0060
152.50..................................................      2070-0024,
                                                             2070-0040 &
                                                               2070-0060
152.80..................................................     2070-0040 &
                                                               2070-0060
152.85..................................................     2070-0040 &
                                                               2070-0060
152.98..................................................       2070-0060
152.122.................................................       2070-0060
152.132.................................................       2070-0044
152.135.................................................       2070-0060
152.164.................................................       2070-0060
152.404.................................................     2070-0040 &
                                                               2070-0060
152.406.................................................     2070-0040 &
                                                               2070-0060
152.412.................................................     2070-0040 &
                                                               2070-0060
152.414.................................................     2070-0040 &
                                                               2070-0060
                                                                        
------------------------------------------------------------------------
                         Registration Standards                         
                                                                        
------------------------------------------------------------------------
155.30..................................................       2070-0057
                                                                        
------------------------------------------------------------------------
            Labeling Requirements for Pesticides and Devices            
                                                                        
------------------------------------------------------------------------
156.36..................................................       2070-0052
156.206.................................................       2070-0060
156.208.................................................       2070-0060
156.210.................................................       2070-0060
156.212.................................................       2070-0060
                                                                        
------------------------------------------------------------------------
            Packaging Requirements for Pesticides and Devices           
                                                                        
------------------------------------------------------------------------
157.22..................................................       2070-0052
157.24..................................................       2070-0052
157.34..................................................       2070-0052
157.36..................................................       2070-0052
                                                                        
------------------------------------------------------------------------
                   Data Requirements for Registration                   
                                                                        
------------------------------------------------------------------------
158.30..................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.32..................................................      2070-0040,
                                                              2070-0053,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.34..................................................      2070-0040,

[[Page 157]]

                                                                        
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.45..................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.75..................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.101.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.155.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.160.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.162.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.165.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.167.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.170.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.175.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.180.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.190.................................................      2070-0040,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.240.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.290.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.340.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.390.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.440.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.490.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.540.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.590.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.640.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.690.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
158.740.................................................      2070-0057,
                                                             2070-0060 &
                                                               2070-0107
                                                                        
------------------------------------------------------------------------
                   Good Laboratory Practice Standards                   
                                                                        
------------------------------------------------------------------------
Part 160................................................      2070-0024,
                                                              2070-0032,
                                                              2070-0040,
                                                              2070-0055,
                                                              2070-0057,
                                                             2070-0060 &
                                                               2070-0107
                                                                        
------------------------------------------------------------------------
                State Registration of Pesticide Products                
                                                                        
------------------------------------------------------------------------
162.153.................................................       2070-0055
                                                                        
------------------------------------------------------------------------
           Certification of Usefulness of Pesticide Chemicals           
                                                                        
------------------------------------------------------------------------
163.4...................................................     2070-0060 &
                                                               2070-0024
163.5...................................................     2070-0060 &
                                                               2070-0024
                                                                        
------------------------------------------------------------------------
   Exemption of Federal and State Agencies for Use of Pesticides Under  
                          Emergency Conditions                          
                                                                        
------------------------------------------------------------------------
166.20..................................................       2070-0032
166.32..................................................       2070-0032
166.43..................................................       2070-0032
166.50..................................................       2070-0032
                                                                        
------------------------------------------------------------------------
        Registration of Pesticide and Active Ingredient Producing       
             Establishments, Submission of Pesticide Reports            
                                                                        
------------------------------------------------------------------------
Part 167................................................       2070-0078
                                                                        
------------------------------------------------------------------------
         Statements of Enforcement Policies and Interpretations         
                                                                        
------------------------------------------------------------------------
168.65..................................................       2070-0027
168.75..................................................       2070-0027
168.85..................................................      2070-0027,
                                                            2070-0028, &
                                                               2070-0078
                                                                        
------------------------------------------------------------------------
       Books and Records of Pesticide Production and Distribution       
                                                                        
------------------------------------------------------------------------
169.2...................................................       2070-0028
                                                                        
------------------------------------------------------------------------
         Worker Protection Standards for Agricultural Pesticides        
                                                                        
------------------------------------------------------------------------
170.112.................................................       2070-0060
Part 170................................................       2070-0148
                                                                        
------------------------------------------------------------------------

[[Page 158]]

                                                                        
                 Certification of Pesticide Applicators                 
                                                                        
------------------------------------------------------------------------
171.7...................................................       2070-0029
171.8...................................................       2070-0029
171.9...................................................       2070-0029
171.10..................................................       2070-0029
171.11..................................................       2070-0029
                                                                        
------------------------------------------------------------------------
                        Experimental Use Permits                        
                                                                        
------------------------------------------------------------------------
172.4...................................................       2070-0040
172.8...................................................       2070-0040
                                                                        
------------------------------------------------------------------------
                  Issuance of Food Additive Regulations                 
                                                                        
------------------------------------------------------------------------
177.81..................................................       2070-0024
177.92..................................................       2070-0024
177.98..................................................       2070-0024
177.99..................................................       2070-0024
177.102.................................................       2070-0024
177.105.................................................       2070-0024
177.110.................................................       2070-0024
177.116.................................................       2070-0024
                                                                        
------------------------------------------------------------------------
 Tolerances and Exemptions from Tolerances for Pesticide Chemicals in or
                     on Raw Agricultural Commodities                    
                                                                        
------------------------------------------------------------------------
180.7...................................................       2070-0024
180.8...................................................       2070-0024
180.9...................................................       2070-0024
180.31..................................................       2070-0024
180.32..................................................       2070-0024
180.33..................................................       2070-0024
                                                                        
------------------------------------------------------------------------
                      404 State Program Regulations                     
                                                                        
------------------------------------------------------------------------
233.10-233.12...........................................       2040-0168
233.21..................................................       2040-0168
233.30..................................................       2040-0168
233.50..................................................       2040-0168
233.52..................................................       2040-0168
233.61..................................................       2040-0140
                                                                        
------------------------------------------------------------------------
              Criteria for Municipal Solid Waste Landfills              
                                                                        
------------------------------------------------------------------------
258.10-258.16...........................................       2050-0122
258.20..................................................       2050-0122
258.23..................................................       2050-0122
258.28-258.29...........................................       2050-0122
258.51..................................................       2050-0122
258.53-258.55...........................................       2050-0122
258.57-258.58...........................................       2050-0122
258.60-258.61...........................................       2050-0122
258.71-258.74...........................................       2050-0122
                                                                        
------------------------------------------------------------------------
               Hazardous Waste Management System: General               
                                                                        
------------------------------------------------------------------------
260.20-260.22...........................................       2050-0053
260.23..................................................       2050-0145
260.31-260.33...........................................       2050-0053
                                                                        
------------------------------------------------------------------------
              Identification and Listing of Hazardous Waste             
                                                                        
------------------------------------------------------------------------
261.3...................................................       2050-0085
261.4...................................................       2050-0053
261.35..................................................       2050-0115
                                                                        
------------------------------------------------------------------------
          Standards Applicable to Generators of Hazardous Waste         
                                                                        
------------------------------------------------------------------------
262.12..................................................       2050-0028
262.20..................................................       2050-0039
262.22-262.23...........................................       2050-0039
262.34..................................................      2050-0035,
                                                               2050-0085
262.40(a)...............................................       2050-0039
262.40(b)...............................................       2050-0024
262.40(c)...............................................       2050-0035
262.41..................................................       2050-0024
262.42..................................................       2050-0039
262.43..................................................       2050-0035
262.44(a)-(b)...........................................       2050-0039
262.44(c)...............................................       2050-0035
262.53-262.57...........................................       2050-0035
262.60..................................................       2050-0035
                                                                        
------------------------------------------------------------------------
         Standards Applicable to Transporters of Hazardous Waste        
                                                                        
------------------------------------------------------------------------
263.11..................................................       2050-0028
263.20-263.22...........................................       2050-0039
263.30..................................................       2050-0039
                                                                        
------------------------------------------------------------------------
    Standards for Owners and Operators of Hazardous Waste Treatment,    
                    Storage, and Disposal Facilities                    
                                                                        
------------------------------------------------------------------------
264.11..................................................       2050-0028
264.12 (a)..............................................       2050-0120
264.13..................................................     2050-0120 &
                                                               2050-0009
264.14..................................................       2050-0009
264.15..................................................     2050-0120 &
                                                               2050-0009
264.16..................................................     2050-0120 &
                                                               2050-0009
264.17..................................................       2050-0120
264.18..................................................       2050-0009
264.19..................................................       2050-0009
264.32..................................................       2050-0009
264.35..................................................       2050-0009
264.37..................................................       2050-0120
264.51..................................................       2050-0009
264.52..................................................       2050-0009
264.53..................................................       2050-0120
264.54..................................................       2050-0120
264.56..................................................       2050-0120
264.71..................................................       2050-0039
264.72..................................................       2050-0039
264.73..................................................       2050-0120
264.74..................................................       2050-0120
264.75..................................................       2050-0024
264.76..................................................       2050-0039
264.90..................................................       2050-0009
264.96..................................................       2050-0120
264.97 (g)..............................................       2050-0120
264.97 (h)..............................................       2050-0009
264.97 (j)..............................................       2050-0120
264.98 (c), (g)(1), (g)(5), (g)(6)......................       2050-0033
264.98 (g)(4), (h)......................................       2050-0009
264.99 (c), (g), (h)(1), (i)(1), (i)(2).................       2050-0033
264.99 (h)(2), (i)(3), (j)..............................       2050-0009
264.100 (e), (f), (g)...................................       2050-0033
264.100 (h).............................................       2050-0009
264.101.................................................       2050-0120
264.112 (a), (b), (c)...................................       2050-0009
264.112 (d).............................................       2050-0120
264.113 (a), (b), (d)...................................       2050-0120

[[Page 159]]

                                                                        
264.113 (e).............................................       2050-0050
264.115.................................................       2050-0120
264.116.................................................       2050-0120
264.118.................................................       2050-0009
264.119 (a) & (b).......................................       2050-0120
264.119 (c).............................................       2050-0009
264.120.................................................       2050-0120
264.142 (a).............................................       2050-0009
264.142 (b), (c), (d)...................................       2050-0120
264.143.................................................       2050-0120
264.144 (a).............................................       2050-0009
264.144 (b), (c), (d)...................................       2050-0120
264.145.................................................       2050-0120
264.147 (a)(7), (b)(7), (f),(g).........................       2050-0120
264.147 (a)(1), (b)(1), (c), (f), (g), (h), (i), (j)....       2050-0009
264.148.................................................       2050-0120
264.149.................................................       2050-0009
264.150.................................................       2050-0009
264.190.................................................       2050-0050
264.191.................................................       2050-0050
264.192 (a).............................................       2050-0009
264.192 (g).............................................       2050-0050
264.193 (c), (d), (e), (g), (h).........................       2050-0009
264.193 (i).............................................       2050-0050
264.196.................................................       2050-0050
264.197 (b).............................................       2050-0050
264.197 (c).............................................       2050-0009
264.221.................................................       2050-0009
264.222 (a).............................................       2050-0009
264.222 (b).............................................       2050-0050
264.223 (a).............................................       2050-0009
264.223 (b), (c)........................................       2050-0050
264.226 (c).............................................     2050-0050 &
                                                               2050-0009
264.226 (d).............................................       2050-0050
264.227.................................................       2050-0050
264.231.................................................       2050-0009
264.251.................................................       2050-0009
264.252 (a).............................................       2050-0009
264.252 (b).............................................       2050-0050
264.253 (a).............................................       2050-0009
264.253 (b), (c)........................................       2050-0050
264.254.................................................       2050-0050
264.259.................................................       2050-0009
264.271.................................................       2050-0009
264.272.................................................       2050-0009
264.276.................................................     2050-0050 &
                                                               2050-0009
264.278 (a)-(f), (h)....................................       2050-0050
264.278 (g).............................................     2050-0050 &
                                                               2050-0009
264.280.................................................       2050-0050
264.283.................................................       2050-0009
264.301.................................................       2050-0009
264.302 (a).............................................       2050-0009
264.302 (b).............................................       2050-0050
264.303 (a).............................................       2050-0009
264.303 (b).............................................       2050-0050
264.304 (a).............................................       2050-0009
264.304 (b), (c)........................................       2050-0050
264.314.................................................       2050-0050
264.317.................................................       2050-0009
264.340.................................................       2050-0009
264.343.................................................       2050-0050
264.344.................................................       2050-0009
264.347.................................................       2050-0050
264.552.................................................       2050-0009
264.570.................................................       2050-0050
264.571.................................................       2050-0050
264.573.................................................       2050-0050
264.574.................................................       2050-0050
264.575.................................................       2050-0009
264.603.................................................       2050-0050
264.1033 (a)............................................       2050-0009
264.1033 (j)............................................       2050-0050
264.1034................................................       2050-0050
264.1035................................................       2050-0050
264.1036................................................       2050-0050
264.1061................................................       2050-0050
264.1062................................................       2050-0050
264.1063................................................       2050-0050
264.1064................................................     2050-0050 &
                                                               2050-0009
264.1065................................................       2050-0050
264.1089................................................       2060-0318
264.1090................................................       2060-0318
264.1100................................................       2050-0050
264.1101................................................       2050-0050
                                                                        
------------------------------------------------------------------------
  Interim Status Standards for Owners and Operators of Hazardous Waste  
               Treatment, Storage, and Disposal Facilities              
                                                                        
------------------------------------------------------------------------
265.11..................................................       2050-0028
265.12 (a)..............................................       2050-0120
265.13..................................................       2050-0120
265.15..................................................       2050-0120
265.16..................................................       2050-0120
265.19..................................................       2050-0120
265.37..................................................       2050-0120
265.51..................................................       2050-0120
265.52..................................................       2050-0120
265.53..................................................       2050-0120
265.54..................................................       2050-0120
265.56..................................................       2050-0120
265.71..................................................       2050-0039
265.72..................................................       2050-0039
265.73..................................................       2050-0120
265.75..................................................       2050-0024
265.76..................................................       2050-0039
265.90..................................................       2050-0033
265.92..................................................       2050-0033
265.93..................................................       2050-0033
265.94..................................................       2050-0033
265.112.................................................       2050-0120
265.113 (a), (b), (d)...................................       2050-0120
265.113 (e).............................................       2050-0050
265.115.................................................       2050-0120
265.116.................................................       2050-0120
265.118.................................................       2050-0120
265.119.................................................       2050-0120
265.120.................................................       2050-0120
265.142.................................................       2050-0120
265.143.................................................       2050-0120
265.144.................................................       2050-0120
265.145.................................................       2050-0120
265.147.................................................       2050-0120
265.148.................................................       2050-0120
265.149.................................................       2050-0120
265.150.................................................       2050-0120
265.190.................................................     2050-0035 &
                                                               2050-0050
265.191.................................................     2050-0035 &
                                                               2050-0050
265.192.................................................     2050-0035 &
                                                               2050-0050
265.193.................................................     2050-0035 &
                                                               2050-0050
265.195.................................................       2050-0120
265.196.................................................     2050-0035 &
                                                               2050-0050
265.197 (b).............................................       2050-0050
265.197 (c).............................................       2050-0120
265.221.................................................       2050-0050
265.222.................................................       2050-0050

[[Page 160]]

                                                                        
265.223.................................................       2050-0050
265.225.................................................       2050-0050
265.226.................................................       2050-0050
265.229.................................................       2050-0050
265.254.................................................       2050-0050
265.255.................................................       2050-0050
265.259.................................................       2050-0050
265.260.................................................       2050-0050
265.273.................................................       2050-0120
265.276.................................................       2050-0050
265.278.................................................       2050-0050
265.280.................................................       2050-0050
265.301.................................................       2050-0050
265.302.................................................       2050-0050
265.303.................................................       2050-0050
265.304.................................................       2050-0050
265.314.................................................       2050-0050
265.340.................................................       2050-0050
265.352.................................................       2050-0050
265.383.................................................       2050-0050
265.404.................................................       2050-0050
265.440.................................................       2050-0050
265.441.................................................       2050-0050
265.443.................................................       2050-0050
265.444.................................................       2050-0050
265.445.................................................       2050-0120
265.1033................................................       2050-0050
265.1034................................................       2050-0050
265.1035................................................       2050-0050
265.1061................................................       2050-0050
265.1062................................................       2050-0050
265.1063................................................       2050-0050
265.1064................................................       2050-0050
265.1090................................................       2060-0318
265.1100................................................       2050-0050
265.1101................................................       2050-0050
                                                                        
------------------------------------------------------------------------
 Standards for the Management of Specific Hazardous Wastes and Specific 
             Types of Hazardous Waste Management Facilities             
                                                                        
------------------------------------------------------------------------
266.70 (b)..............................................       2050-0028
266.70 (c)..............................................       2050-0050
266.80..................................................       2050-0028
266.100.................................................       2050-0073
266.102.................................................       2050-0073
266.103.................................................       2050-0073
266.104.................................................       2050-0073
266.106.................................................       2050-0073
266.107.................................................       2050-0073
266.108.................................................       2050-0073
266.109.................................................       2050-0073
266.111.................................................       2050-0073
266.112.................................................       2050-0073
Appendix IX.............................................       2050-0073
                                                                        
------------------------------------------------------------------------
                       Land Disposal Restrictions                       
                                                                        
------------------------------------------------------------------------
268.4-268.5.............................................       2050-0085
268.6...................................................       2050-0062
268.7...................................................       2050-0085
268.9...................................................       2050-0085
268.42..................................................       2050-0085
268.44..................................................       2050-0085
                                                                        
------------------------------------------------------------------------
  EPA Administered Permit Programs: The Hazardous Waste Permit Program  
                                                                        
------------------------------------------------------------------------
270.1...................................................     2050-0028 &
                                                             2050-0034 &
                                                               2050-0009
270.10..................................................       2050-0009
270.11..................................................       2050-0034
270.13..................................................       2050-0034
270.14..................................................       2050-0009
270.14 (b)(21)..........................................     2050-0062 &
                                                               2050-0085
270.15..................................................       2050-0009
270.16..................................................       2050-0009
270.17..................................................       2050-0009
270.18..................................................       2050-0009
270.19..................................................       2050-0009
270.20..................................................       2050-0009
270.21..................................................       2050-0009
270.22..................................................       2050-0073
270.23..................................................       2050-0009
270.24..................................................       2050-0009
270.25..................................................       2050-0009
270.26..................................................       2050-0115
270.30..................................................       2050-0120
270.33..................................................       2050-0009
270.40..................................................       2050-0009
270.41..................................................       2050-0009
270.42..................................................       2050-0009
270.51..................................................       2050-0009
270.62..................................................     2050-0009 &
                                                               2050-0149
270.63..................................................       2050-0009
270.65..................................................       2050-0009
270.66..................................................     2050-0073 &
                                                               2050-0149
270.72..................................................       2050-0034
270.73..................................................       2050-0009
                                                                        
------------------------------------------------------------------------
    Requirements for Authorization of State Hazardous Waste Programs    
                                                                        
------------------------------------------------------------------------
271.5-271.8.............................................       2050-0041
271.20-271.21...........................................       2050-0041
271.23..................................................       2050-0041
                                                                        
------------------------------------------------------------------------
                Standards for Universal Waste Management                
                                                                        
------------------------------------------------------------------------
273.14..................................................       2050-0145
273.15..................................................       2050-0145
273.18..................................................       2050-0145
273.32..................................................       2050-0145
273.34..................................................       2050-0145
273.35..................................................       2050-0145
273.38..................................................       2050-0145
273.39..................................................       2050-0145
273.61..................................................       2050-0145
273.62..................................................       2050-0145
273.80..................................................       2050-0145
                                                                        
------------------------------------------------------------------------
                  Standards for Management of Used Oil                  
                                                                        
------------------------------------------------------------------------
279.10-279.11...........................................       2050-0124
279.42..................................................      2050-0028,
                                                               2050-0124
279.43-279.44...........................................       2050-0124
279.46..................................................       2050-0050
279.51..................................................       2050-0028
279.52-279.55...........................................       2050-0124
279.56..................................................       2050-0050
279.57..................................................      2050-0050,
                                                               2050-0124
279.62..................................................       2050-0028
279.63..................................................       2050-0124
279.65-279.66...........................................       2050-0050
279.72..................................................       2050-0050
279.73..................................................       2050-0028

[[Page 161]]

                                                                        
279.74-279.75...........................................       2050-0050
279.82..................................................       2050-0124
                                                                        
------------------------------------------------------------------------
  Technical Standards and Corrective Action Requirements for Owners and 
             Operators of Underground Storage Tanks (USTs)              
                                                                        
------------------------------------------------------------------------
                                                                        
280.11(a)...............................................       2050-0068
280.20(a)-(b)...........................................       2050-0068
280.20(e)...............................................       2050-0068
280.22(a)-(f)...........................................       2050-0068
280.22(g)...............................................       2050-0068
280.31..................................................       2050-0068
280.33(f)...............................................       2050-0068
280.34(a)...............................................       2050-0068
280.34(b)...............................................       2050-0068
280.34(c)...............................................       2050-0068
280.40..................................................       2050-0068
280.43..................................................       2050-0068
280.44..................................................       2050-0068
280.45..................................................       2050-0068
280.50..................................................       2050-0068
280.53..................................................       2050-0068
280.61..................................................       2050-0068
280.62..................................................       2050-0068
280.63..................................................       2050-0068
280.64..................................................       2050-0068
280.65..................................................       2050-0068
280.66(a)...............................................       2050-0068
280.66(c)...............................................       2050-0068
280.66(d)...............................................       2050-0068
280.67..................................................       2050-0068
280.71(a)...............................................       2050-0068
280.72(a)...............................................       2050-0068
280.74..................................................       2050-0068
280.95..................................................       2050-0068
280.96..................................................       2050-0068
280.97..................................................       2050-0068
280.98..................................................       2050-0068
280.99..................................................       2050-0068
280.100.................................................       2050-0068
280.101.................................................       2050-0068
280.102.................................................       2050-0068
280.103.................................................       2050-0068
280.104.................................................       2050-0068
280.105.................................................       2050-0068
280.106.................................................       2050-0068
280.107.................................................       2050-0068
280.108.................................................       2050-0068
280.109(a)..............................................       2050-0068
280.109(b)..............................................       2050-0068
280.110.................................................       2050-0068
280.111.................................................       2050-0068
280.111(b)(11)..........................................       2050-0068
280.114(a)-(d)..........................................       2050-0068
280.114(e)..............................................       2050-0068
                                                                        
------------------------------------------------------------------------
           Approval of State Underground Storage Tank Programs          
                                                                        
------------------------------------------------------------------------
281.120(a)..............................................       2050-0068
281.120(g)..............................................       2050-0068
281.121.................................................       2050-0068
281.122.................................................       2050-0068
281.124.................................................       2050-0068
281.125.................................................       2050-0068
281.140.................................................       2050-0068
281.143(a)..............................................       2050-0068
281.150.................................................       2050-0068
281.152.................................................       2050-0068
281.161.................................................       2050-0068
                                                                        
------------------------------------------------------------------------
    National Oil and Hazardous Substances Pollution Contingency Plan    
                                                                        
------------------------------------------------------------------------
300.405.................................................       2050-0046
300.425.................................................       2050-0095
300.430.................................................       2050-0096
300.435.................................................       2050-0096
300.920.................................................       2050-0141
Part 300, Appendix A....................................       2050-0095
                                                                        
------------------------------------------------------------------------
          Designation, reportable quantities, and notification          
                                                                        
------------------------------------------------------------------------
302.4...................................................       2050-0046
302.6...................................................       2050-0046
302.8...................................................       2050-0086
                                                                        
------------------------------------------------------------------------
       Hazardous Substances Superfund; Response Claims Procedures       
                                                                        
------------------------------------------------------------------------
307.11-307.14...........................................       2050-0106
307.21-307.23...........................................       2050-0106
307.30-307.32...........................................       2050-0106
                                                                        
------------------------------------------------------------------------
 Reimbursement to Local Governments for Emergency Response to Hazardous 
                           Substance Releases                           
                                                                        
------------------------------------------------------------------------
310.05..................................................       2050-0077
310.10-310.12...........................................       2050-0077
310.20..................................................       2050-0077
310.30..................................................       2050-0077
310.40..................................................       2050-0077
310.50..................................................       2050-0077
310.60..................................................       2050-0077
310.70..................................................       2050-0077
310.80..................................................       2050-0077
310.90..................................................       2050-0077
Part 310, Appendix II...................................       2050-0077
                                                                        
------------------------------------------------------------------------
Worker Protection Standards for Hazardous Waste Operations and Emergency
                                Response                                
                                                                        
------------------------------------------------------------------------
311.1-311.2.............................................       2050-0105
                                                                        
------------------------------------------------------------------------
Trade Secrecy Claims for Emergency Planning and Community Right-to-Know;
                          Health Professionals                          
                                                                        
------------------------------------------------------------------------
350.5-350.16............................................       2050-0078
350.27..................................................       2050-0078
350.40..................................................       2050-0078
                                                                        
------------------------------------------------------------------------
                   Emergency planning and notification                  
                                                                        
------------------------------------------------------------------------
Part 355, Appendix A, Appendix B........................       2050-0046
                                                                        
------------------------------------------------------------------------
        Toxic Chemical Release Reporting: Community Right-to-Know       
                                                                        
------------------------------------------------------------------------
Part 372................................................       2070-0093
Part 372, subpart A.....................................     2070-0093 &
                                                               2070-0143
372.22..................................................     2070-0093 &
                                                               2070-0143
372.25..................................................       2070-0093
372.27..................................................       2070-0143
372.30..................................................     2070-0093 &
                                                               2070-0143

[[Page 162]]

                                                                        
372.38..................................................     2070-0093 &
                                                               2070-0143
Part 372, subpart C.....................................     2070-0093 &
                                                               2070-0143
Part 372, subpart D.....................................     2070-0093 &
                                                               2070-0143
372.85..................................................       2070-0093
372.95..................................................       2070-0143
                                                                        
------------------------------------------------------------------------
    General Pretreatment Regulations for Existing and New Sources of    
                                Pollution                               
                                                                        
------------------------------------------------------------------------
403.5(b)................................................       2040-0009
403.6-403.7.............................................       2040-0009
403.8(a)-(e)............................................       2040-0009
403.8(f)................................................       2040-0009
403.9-403.10............................................       2040-0009
403.12(b)-(g)...........................................       2040-0009
403.12 (h), (i).........................................       2040-0009
403.12 (j), (k), (l), (o)...............................       2040-0009
403.12 (m), (p).........................................       2040-0009
403.13..................................................       2040-0009
403.15..................................................       2040-0009
403.17-403.18...........................................      2040-0009,
                                                               2040-0170
                                                                        
------------------------------------------------------------------------
            Steam Electric Generating Point Source Category             
                                                                        
------------------------------------------------------------------------
423.12-423.13...........................................       2040-0033
423.15..................................................       2040-0033
                                                                        
------------------------------------------------------------------------
           Pulp, Paper, and Paperboard Point Source Category            
                                                                        
------------------------------------------------------------------------
430.14-430.17...........................................       2040-0033
430.24-430.27...........................................       2040-0033
430.54-430.57...........................................       2040-0033
430.64-430.67...........................................       2040-0033
430.74-430.77...........................................       2040-0033
430.84-430.87...........................................       2040-0033
430.94-430.97...........................................       2040-0033
430.104-430.107.........................................       2040-0033
430.114-430.117.........................................       2040-0033
430.134-430.137.........................................       2040-0033
430.144-430.147.........................................       2040-0033
430.154-430.157.........................................       2040-0033
430.164-430.167.........................................       2040-0033
430.174-430.177.........................................       2040-0033
430.184-430.187.........................................       2040-0033
430.194-430.197.........................................       2040-0033
430.204-430.207.........................................       2040-0033
430.214-430.217.........................................       2040-0033
430.224-430.227.........................................       2040-0033
430.234-430.237.........................................       2040-0033
430.244-430.247.........................................       2040-0033
430.254-430.257.........................................       2040-0033
430.264-430.267.........................................       2040-0033
                                                                        
------------------------------------------------------------------------
        The Builders' Paper and Board Mills Point Source Category       
                                                                        
------------------------------------------------------------------------
431.14-431.17...........................................       2040-0033
                                                                        
------------------------------------------------------------------------
            Pharmaceutical Manufacturing Point Source Category          
                                                                        
------------------------------------------------------------------------
439.14-439.17...........................................       2040-0033
439.24-439.27...........................................       2040-0033
439.34-439.37...........................................       2040-0033
439.44-439.47...........................................       2040-0033
                                                                        
------------------------------------------------------------------------
                   Coil Coating Point Source Category                   
                                                                        
------------------------------------------------------------------------
465.03..................................................       2040-0033
                                                                        
------------------------------------------------------------------------
               Porcelain Enameling Point Source Category                
                                                                        
------------------------------------------------------------------------
466.03..................................................       2040-0033
                                                                        
------------------------------------------------------------------------
                 Aluminum Forming Point Source Category                 
                                                                        
------------------------------------------------------------------------
467.03..................................................       2040-0033
                                                                        
------------------------------------------------------------------------
              State Sludge Management Program Requirements              
                                                                        
------------------------------------------------------------------------
501.15(a)...............................................      2040-0086,
                                                               2040-0110
501.15(b)...............................................      2040-0004,
                                                              2040-0068,
                                                               2040-0110
501.15(c)...............................................       2040-0068
501.16..................................................       2040-0057
501.21..................................................       2040-0057
                                                                        
------------------------------------------------------------------------
           Standards for the Use or Disposal of Sewage Sludge           
                                                                        
------------------------------------------------------------------------
503.17-503.18...........................................       2040-0157
503.27-503.28...........................................       2040-0157
503.47-503.48...........................................       2040-0157
                                                                        
------------------------------------------------------------------------
                     Fuel Economy of Motor Vehicles                     
                                                                        
------------------------------------------------------------------------
600.006-86..............................................       2060-0104
600.007-80..............................................       2060-0104
600.010-86..............................................       2060-0104
600.113-88..............................................       2060-0104
600.113-93..............................................       2060-0104
600.206-86..............................................       2060-0104
600.207-86..............................................       2060-0104
600.209-85..............................................       2060-0104
600.306-86..............................................       2060-0104
600.307-86..............................................       2060-0104
600.311-86..............................................       2060-0104
600.312-86..............................................       2060-0104
600.313-86..............................................       2060-0104
600.314-86..............................................       2060-0104
600.507-86..............................................       2060-0104
600.509-86..............................................       2060-0104
600.510-86..............................................       2060-0104
600.512-86..............................................       2060-0104
                                                                        
------------------------------------------------------------------------
                  Toxic Substances Control Act: General                 
                                                                        
------------------------------------------------------------------------
700.45..................................................     2070-0012 &
                                                               2070-0038
                                                                        
------------------------------------------------------------------------
                Reporting and Recordkeeping Requirements                
                                                                        
------------------------------------------------------------------------
704.5...................................................     2010-0019 &
                                                               2070-0067
704.11..................................................     2010-0019 &
                                                               2070-0067
704.25..................................................       2070-0067
704.33..................................................       2070-0067
704.43..................................................       2070-0067
704.45..................................................       2070-0067
704.95..................................................       2070-0067
704.102.................................................       2070-0067

[[Page 163]]

                                                                        
704.104.................................................       2070-0067
704.175.................................................       2070-0067
                                                                        
------------------------------------------------------------------------
                      Chemical Imports and Exports                      
                                                                        
------------------------------------------------------------------------
707.65..................................................       2070-0030
707.67..................................................       2070-0030
707.72..................................................       2070-0030
                                                                        
------------------------------------------------------------------------
                     Inventory Reporting Regulations                    
                                                                        
------------------------------------------------------------------------
Part 710................................................       2070-0070
                                                                        
------------------------------------------------------------------------
                       Chemical Information Rules                       
                                                                        
------------------------------------------------------------------------
712.5...................................................       2070-0054
712.7...................................................       2070-0054
712.20..................................................       2070-0054
712.28..................................................       2070-0054
712.30..................................................       2070-0054
                                                                        
------------------------------------------------------------------------
                    Health and Safety Data Reporting                    
                                                                        
------------------------------------------------------------------------
716.5...................................................       2070-0004
716.10..................................................       2070-0004
716.20..................................................       2070-0004
716.25..................................................       2070-0004
716.30..................................................       2070-0004
716.35..................................................       2070-0004
716.40..................................................       2070-0004
716.45..................................................       2070-0004
716.50..................................................       2070-0004
716.60..................................................       2070-0004
716.65..................................................       2070-0004
716.105.................................................       2070-0004
716.120.................................................       2070-0004
                                                                        
------------------------------------------------------------------------
    Records and Reports of Allegations that Chemical Substances Cause   
       Significant Adverse Reactions to Health or the Environment       
                                                                        
------------------------------------------------------------------------
717.5...................................................       2070-0017
717.7...................................................       2070-0017
717.12..................................................       2070-0017
717.15..................................................       2070-0017
717.17..................................................       2070-0017
                                                                        
------------------------------------------------------------------------
                       Premanufacture Notification                      
                                                                        
------------------------------------------------------------------------
720.1...................................................       2070-0012
720.22..................................................       2070-0012
720.25..................................................       2070-0012
720.30..................................................       2070-0012
720.36..................................................       2070-0012
720.38..................................................       2070-0012
Part 720, subpart C.....................................       2070-0012
720.62..................................................       2070-0012
720.75..................................................       2070-0012
720.78..................................................       2070-0012
720.80..................................................       2070-0012
720.85..................................................       2070-0012
720.87..................................................       2070-0012
720.90..................................................       2070-0012
720.102.................................................       2070-0012
Part 720, Appendix A....................................       2070-0012
                                                                        
------------------------------------------------------------------------
               Significant New Uses of Chemical Substances              
                                                                        
------------------------------------------------------------------------
Part 721, subpart A.....................................     2070-0012 &
                                                               2070-0038
721.72..................................................     2070-0012 &
                                                               2070-0038
721.125.................................................     2070-0012 &
                                                               2070-0038
721.160.................................................     2070-0012 &
                                                               2070-0038
721.170.................................................     2070-0012 &
                                                               2070-0038
721.185.................................................     2070-0012 &
                                                               2070-0038
721.225.................................................       2070-0012
721.275.................................................       2070-0012
721.285.................................................       2070-0012
721.320.................................................       2070-0012
721.323.................................................       2070-0012
721.325.................................................       2070-0012
721.370.................................................       2070-0012
721.390.................................................       2070-0012
721.400.................................................       2070-0012
721.415.................................................       2070-0012
721.430.................................................       2070-0012
721.445.................................................       2070-0012
721.460.................................................       2070-0012
721.470.................................................       2070-0012
721.490.................................................       2070-0012
721.505.................................................       2070-0012
721.520.................................................       2070-0012
721.530.................................................       2070-0012
721.536.................................................       2070-0012
721.540.................................................       2070-0012
721.550.................................................       2070-0012
721.562.................................................       2070-0012
721.575.................................................       2070-0012
721.600.................................................       2070-0012
721.625.................................................       2070-0012
721.639.................................................       2070-0012
721.642.................................................       2070-0012
721.650.................................................       2070-0038
721.700.................................................       2070-0012
721.715.................................................       2070-0012
721.750.................................................       2070-0012
721.757.................................................       2070-0012
721.775.................................................       2070-0012
721.805.................................................       2070-0012
721.825.................................................       2070-0012
721.840.................................................       2070-0012
721.875.................................................       2070-0012
721.925.................................................       2070-0012
721.950.................................................       2070-0012
721.982.................................................       2070-0012
721.1000................................................       2070-0012
721.1025................................................       2070-0038
721.1050................................................       2070-0012
721.1068................................................       2070-0012
721.1075................................................       2070-0012
721.1120................................................       2070-0012
721.1150................................................       2070-0012
721.1175................................................       2070-0012
721.1187................................................       2070-0012
721.1193................................................       2070-0012
721.1210................................................       2070-0012
721.1225................................................       2070-0012
721.1240................................................       2070-0012
721.1300................................................       2070-0012
721.1325................................................       2070-0012
721.1350................................................       2070-0012
721.1372................................................       2070-0012
721.1375................................................       2070-0012
721.1425................................................       2070-0038

[[Page 164]]

                                                                        
721.1430................................................       2070-0038
721.1435................................................       2070-0038
721.1440................................................       2070-0038
721.1450................................................       2070-0012
721.1500................................................       2070-0012
721.1525................................................       2070-0012
721.1550................................................       2070-0012
721.1555................................................       2070-0012
721.1568................................................       2070-0012
721.1575................................................       2070-0012
721.1612................................................       2070-0012
721.1625................................................       2070-0012
721.1630................................................       2070-0012
721.1637................................................       2070-0012
721.1640................................................       2070-0012
721.1643................................................       2070-0012
721.1645................................................       2070-0012
721.1650................................................       2070-0012
721.1675................................................       2070-0012
721.1700................................................       2070-0012
721.1725................................................       2070-0012
721.1728................................................       2070-0012
721.1732................................................       2070-0012
721.1735................................................       2070-0012
721.1740................................................       2070-0012
721.1745................................................       2070-0012
721.1750................................................       2070-0012
721.1755................................................       2070-0012
721.1765................................................       2070-0012
721.1769................................................       2070-0012
721.1775................................................       2070-0012
721.1790................................................       2070-0038
721.1800................................................       2070-0012
721.1820................................................       2070-0012
721.1825................................................       2070-0012
721.1850................................................       2070-0012
721.1875................................................       2070-0012
721.1900................................................       2070-0012
721.1907................................................       2070-0012
721.1920................................................       2070-0012
721.1925................................................       2070-0012
721.1950................................................       2070-0012
721.2025................................................       2070-0012
721.2050................................................       2070-0012
721.2075................................................       2070-0012
721.2084................................................       2070-0038
721.2085................................................       2070-0012
721.2086................................................       2070-0012
721.2088................................................       2070-0012
721.2089................................................       2070-0012
721.2092................................................       2070-0038
721.2120................................................       2070-0012
721.2140................................................       2070-0012
721.2170................................................       2070-0012
721.2175................................................       2070-0012
721.2250................................................       2070-0012
721.2260................................................       2070-0012
721.2270................................................       2070-0012
721.2275................................................       2070-0012
721.2287................................................       2070-0038
721.2340................................................       2070-0012
721.2355................................................       2070-0038
721.2380................................................       2070-0012
721.2410................................................       2070-0012
721.2420................................................       2070-0012
721.2475................................................       2070-0012
721.2520................................................       2070-0012
721.2540................................................       2070-0012
721.2560................................................       2070-0012
721.2565................................................       2070-0012
721.2575................................................       2070-0012
721.2600................................................       2070-0038
721.2625................................................       2070-0012
721.2650................................................       2070-0012
721.2675................................................       2070-0012
721.2725................................................       2070-0038
721.2750................................................       2070-0012
721.2800................................................       2070-0038
721.2815................................................       2070-0012
721.2825................................................       2070-0012
721.2840................................................       2070-0012
721.2860................................................       2070-0012
721.2880................................................       2070-0012
721.2900................................................       2070-0012
721.2920................................................       2070-0012
721.2930................................................       2070-0012
721.2940................................................       2070-0012
721.2950................................................       2070-0012
721.2980................................................       2070-0012
721.3000................................................       2070-0012
721.3020................................................       2070-0012
721.3028................................................       2070-0012
721.3034................................................       2070-0012
721.3040................................................       2070-0012
721.3060................................................       2070-0012
721.3080................................................       2070-0012
721.3100................................................       2070-0012
721.3120................................................       2070-0012
721.3140................................................       2070-0012
721.3152................................................       2070-0012
721.3160................................................       2070-0038
721.3180................................................       2070-0012
721.3200................................................       2070-0012
721.3220................................................       2070-0038
721.3248................................................       2070-0012
721.3260................................................       2070-0012
721.3320................................................       2070-0012
721.3340................................................       2070-0012
721.3350................................................       2070-0038
721.3360................................................       2070-0012
721.3364................................................       2070-0012
721.3374................................................       2070-0012
721.3380................................................       2070-0012
721.3390................................................       2070-0012
721.3420................................................       2070-0012
721.3430................................................       2070-0038
721.3435................................................       2070-0012
721.3437................................................       2070-0012
721.3440................................................       2070-0012
721.3460................................................       2070-0012
721.3480................................................       2070-0012
721.3486................................................       2070-0012
721.3500................................................       2070-0012
721.3520................................................       2070-0012
721.3560................................................       2070-0012
721.3620................................................       2070-0012
721.3625................................................       2070-0012
721.3627................................................       2070-0012
721.3629................................................       2070-0012
721.3640................................................       2070-0012
721.3680................................................       2070-0012
721.3700................................................       2070-0012
721.3720................................................       2070-0012
721.3740................................................       2070-0012
721.3760................................................       2070-0012
721.3764................................................       2070-0012
721.3780................................................       2070-0012
721.3790................................................       2070-0012
721.3800................................................       2070-0012
721.3815................................................       2070-0012
721.3840................................................       2070-0012
721.3860................................................       2070-0012
721.3870................................................       2070-0012
721.3880................................................       2070-0012
721.3900................................................       2070-0012
721.4000................................................       2070-0012

[[Page 165]]

                                                                        
721.4020................................................       2070-0012
721.4040................................................       2070-0012
721.4060................................................       2070-0012
721.4080................................................       2070-0038
721.4100................................................       2070-0012
721.4110................................................       2070-0012
721.4128................................................       2070-0012
721.4133................................................       2070-0012
721.4140................................................       2070-0038
721.4155................................................       2070-0038
721.4160................................................       2070-0038
721.4180................................................       2070-0038
721.4200................................................       2070-0012
721.4215................................................       2070-0012
721.4220................................................       2070-0012
721.4240................................................       2070-0012
721.4250................................................       2070-0012
721.4255................................................       2070-0012
721.4260................................................       2070-0012
721.4270................................................       2070-0012
721.4280................................................       2070-0012
721.4300................................................       2070-0012
721.4320................................................       2070-0012
721.4340................................................       2070-0012
721.4360................................................       2070-0038
721.4380................................................       2070-0012
721.4390................................................       2070-0012
721.4400................................................       2070-0012
721.4420................................................       2070-0012
721.4460................................................       2070-0012
721.4463................................................       2070-0012
721.4466................................................       2070-0012
721.4470................................................       2070-0012
721.4473................................................       2070-0012
721.4480................................................       2070-0012
721.4490................................................       2070-0012
721.4500................................................       2070-0012
721.4520................................................       2070-0012
721.4550................................................       2070-0012
721.4568................................................       2070-0012
721.4585................................................       2070-0012
721.4590................................................       2070-0012
721.4594................................................       2070-0012
721.4600................................................       2070-0012
721.4620................................................       2070-0012
721.4640................................................       2070-0012
721.4660................................................       2070-0012
721.4680................................................       2070-0012
721.4700................................................       2070-0012
721.4720................................................       2070-0012
721.4740................................................       2070-0038
721.4780................................................       2070-0012
721.4790................................................       2070-0012
721.4794................................................       2070-0012
721.4800................................................       2070-0012
721.4820................................................       2070-0012
721.4840................................................       2070-0012
721.4880................................................       2070-0012
721.4925................................................       2070-0038
721.5050................................................       2070-0012
721.5075................................................       2070-0012
721.5175................................................       2070-0038
721.5192................................................       2070-0012
721.5200................................................       2070-0012
721.5225................................................       2070-0012
721.5250................................................       2070-0012
721.5275................................................       2070-0012
721.5278................................................       2070-0012
721.5282................................................       2070-0012
721.5285................................................       2070-0012
721.5300................................................       2070-0012
721.5310................................................       2070-0012
721.5325................................................       2070-0012
721.5330................................................       2070-0012
721.5350................................................       2070-0012
721.5375................................................       2070-0012
721.5385................................................       2070-0012
721.5400................................................       2070-0012
721.5425................................................       2070-0012
721.5450................................................       2070-0012
721.5475................................................       2070-0012
721.5500................................................       2070-0012
721.5525................................................       2070-0012
721.5540................................................       2070-0012
721.5550................................................       2070-0012
721.5575................................................       2070-0012
721.5600................................................       2070-0038
721.5700................................................       2070-0012
721.5705................................................       2070-0012
721.5710................................................       2070-0038
721.5740................................................       2070-0012
721.5760................................................       2070-0012
721.5763................................................       2070-0012
721.5769................................................       2070-0012
721.5780................................................       2070-0012
721.5800................................................       2070-0012
721.5820................................................       2070-0012
721.5840................................................       2070-0012
721.5860................................................       2070-0012
721.5867................................................       2070-0012
721.5880................................................       2070-0012
721.5900................................................       2070-0012
721.5910................................................       2070-0012
721.5915................................................       2070-0012
721.5920................................................       2070-0012
721.5960................................................       2070-0012
721.5970................................................       2070-0012
721.5980................................................       2070-0012
721.5990................................................       2070-0012
721.6000................................................       2070-0038
721.6020................................................       2070-0012
721.6060................................................       2070-0012
721.6070................................................       2070-0012
721.6080................................................       2070-0012
721.6085................................................       2070-0012
721.6090................................................       2070-0012
721.6100................................................       2070-0012
721.6110................................................       2070-0012
721.6120................................................       2070-0012
721.6140................................................       2070-0012
721.6160................................................       2070-0012
721.6180................................................       2070-0012
721.6186................................................       2070-0012
721.6200................................................       2070-0012
721.6220................................................       2070-0012
721.6440................................................       2070-0012
721.6470................................................       2070-0012
721.6500................................................       2070-0012
721.6520................................................       2070-0012
721.6540................................................       2070-0012
721.6560................................................       2070-0012
721.6580................................................       2070-0012
721.6600................................................       2070-0012
721.6620................................................       2070-0012
721.6625................................................       2070-0012
721.6640................................................       2070-0012
721.6660................................................       2070-0012
721.6680................................................       2070-0012
721.6700................................................       2070-0012
721.6720................................................       2070-0012
721.6740................................................       2070-0012
721.6760................................................       2070-0012
721.6780................................................       2070-0012
721.6820................................................       2070-0012
721.6840................................................       2070-0012
721.6880................................................       2070-0012

[[Page 166]]

                                                                        
721.6900................................................       2070-0012
721.6920................................................       2070-0012
721.6940................................................       2070-0012
721.6960................................................       2070-0012
721.6980................................................       2070-0012
721.7000................................................       2070-0012
721.7020................................................       2070-0012
721.7040................................................       2070-0012
721.7046................................................       2070-0012
721.7080................................................       2070-0012
721.7100................................................       2070-0012
721.7140................................................       2070-0012
721.7160................................................       2070-0012
721.7180................................................       2070-0012
721.7200................................................       2070-0012
721.7210................................................       2070-0012
721.7220................................................       2070-0012
721.7240................................................       2070-0012
721.7260................................................       2070-0012
721.7280................................................       2070-0012
721.7300................................................       2070-0012
721.7320................................................       2070-0012
721.7340................................................       2070-0012
721.7360................................................       2070-0012
721.7370................................................       2070-0012
721.7400................................................       2070-0012
721.7420................................................       2070-0012
721.7440................................................       2070-0012
721.7450................................................       2070-0012
721.7460................................................       2070-0012
721.7480................................................       2070-0012
721.7500................................................       2070-0012
721.7540................................................       2070-0012
721.7560................................................       2070-0012
721.7580................................................       2070-0012
721.7600................................................       2070-0012
721.7620................................................       2070-0012
721.7655................................................       2070-0012
721.7660................................................       2070-0012
721.7680................................................       2070-0012
721.7780................................................       2070-0012
721.7710................................................       2070-0012
721.7720................................................       2070-0012
721.7700................................................       2070-0012
721.7740................................................       2070-0012
721.7760................................................       2070-0012
721.7770................................................       2070-0012
721.8075................................................       2070-0012
721.8082................................................       2070-0012
721.8090................................................       2070-0012
721.8100................................................       2070-0012
721.8155................................................       2070-0012
721.8160................................................       2070-0012
721.8170................................................       2070-0012
721.8175................................................       2070-0012
721.8225................................................       2070-0012
721.8250................................................       2070-0012
721.8265................................................       2070-0012
721.8275................................................       2070-0012
721.8290................................................       2070-0012
721.8300................................................       2070-0012
721.8325................................................       2070-0012
721.8335................................................       2070-0012
721.8350................................................       2070-0012
721.8375................................................       2070-0012
721.8400................................................       2070-0012
721.8425................................................       2070-0012
721.8450................................................       2070-0012
721.8475................................................       2070-0012
721.8500................................................       2070-0012
721.8525................................................       2070-0012
721.8550................................................       2070-0012
721.8575................................................       2070-0012
721.8600................................................       2070-0012
721.8650................................................       2070-0012
721.8654................................................       2070-0012
721.8670................................................       2070-0012
721.8675................................................       2070-0012
721.8700................................................       2070-0012
721.8750................................................       2070-0012
721.8775................................................       2070-0012
721.8825................................................       2070-0012
721.8850................................................       2070-0012
721.8875................................................       2070-0012
721.8900................................................       2070-0012
721.8965................................................       2070-0012
721.9000................................................       2070-0038
721.9075................................................       2070-0012
721.9100................................................       2070-0012
721.9220................................................       2070-0012
721.9240................................................       2070-0012
721.9260................................................       2070-0012
721.9280................................................       2070-0012
721.9300................................................       2070-0012
721.9320................................................       2070-0012
721.9360................................................       2070-0012
721.9400................................................       2070-0012
721.9420................................................       2070-0012
721.9460................................................       2070-0012
721.9470................................................       2070-0038
721.9480................................................       2070-0012
721.9500................................................       2070-0012
721.9505................................................       2070-0012
721.9510................................................       2070-0012
721.9520................................................       2070-0012
721.9525................................................       2070-0012
721.9526................................................       2070-0012
721.9527................................................       2070-0012
721.9530................................................       2070-0012
721.9540................................................       2070-0012
721.9550................................................       2070-0012
721.9570................................................       2070-0012
721.9580................................................       2070-0038
721.9620................................................       2070-0012
721.9630................................................       2070-0012
721.9650................................................       2070-0012
721.9656................................................       2070-0012
721.9658................................................       2070-0012
721.9660................................................       2070-0038
721.9665................................................       2070-0012
721.9675................................................       2070-0012
721.9700................................................       2070-0012
721.9720................................................       2070-0012
721.9730................................................       2070-0012
721.9740................................................       2070-0012
721.9750................................................       2070-0012
721.9780................................................       2070-0012
721.9800................................................       2070-0012
721.9820................................................       2070-0012
721.9850................................................       2070-0012
721.9870................................................       2070-0012
721.9892................................................       2070-0012
721.9900................................................       2070-0012
721.9920................................................       2070-0012
721.9925................................................       2070-0012
721.9930................................................       2070-0038
721.9940................................................       2070-0012
721.9957................................................       2070-0038
721.9975................................................       2070-0012
                                                                        
------------------------------------------------------------------------
                 Premanufacture Notification Exemptions                 
                                                                        
------------------------------------------------------------------------
723.50..................................................       2070-0012
723.175.................................................       2070-0012
723.250(m)(1)...........................................       2070-0012
                                                                        
------------------------------------------------------------------------

[[Page 167]]

                                                                        
Lead-Based Paint Poisioning Prevention in Certain Residential Structures
                                                                        
------------------------------------------------------------------------
Part 745, subpart F.....................................       2070-0151
                                                                        
------------------------------------------------------------------------
                        Water Treatment Chemicals                       
                                                                        
------------------------------------------------------------------------
Part 749, subpart D.....................................       2060-0193
749.68..................................................       2060-0193
                                                                        
------------------------------------------------------------------------
Polychlorinated Biphenyls (PCBs) Manufacturing, Processing, Distribution
                    in Commerce, and Use Prohibitions                   
                                                                        
------------------------------------------------------------------------
761.20..................................................     2070-0008 &
                                                               2070-0021
761.30..................................................      2070-0003,
                                                             2070-0008 &
                                                               2070-0021
761.60..................................................       2070-0011
761.65..................................................       2070-0112
761.70..................................................       2070-0011
761.75..................................................       2070-0011
761.80..................................................       2070-0021
761.93(a)(1)(iii).......................................       2070-0149
761.93(b)...............................................       2070-0149
761.125.................................................       2070-0112
761.180.................................................       2070-0112
761.185.................................................       2070-0008
761.187.................................................       2070-0008
761.193.................................................       2070-0008
761.202.................................................       2070-0112
761.205.................................................       2070-0112
761.207.................................................       2070-0112
761.207(a)..............................................       2050-0039
761.208.................................................       2070-0112
761.209.................................................       2070-0112
761.210.................................................       2070-0112
761.211.................................................       2070-0112
761.215.................................................       2070-0112
761.218.................................................       2070-0112
                                                                        
------------------------------------------------------------------------
                                Asbestos                                
                                                                        
------------------------------------------------------------------------
Part 763, subpart E.....................................       2070-0091
Part 763, subpart G.....................................       2070-0072
Part 763, subpart I.....................................       2070-0082
                                                                        
------------------------------------------------------------------------
                    Dibenzo-para-dioxin/Dibenzofurans                   
                                                                        
------------------------------------------------------------------------
766.35(b)(1)............................................       2070-0054
766.35(b)(2)............................................       2070-0054
766.35(b)(3)............................................       2070-0017
766.35(b)(4)(iii).......................................       2070-0054
766.35(c)(1)(i).........................................       2070-0054
766.35(c)(1)(ii)........................................       2070-0054
766.35(c)(1)(iii).......................................       2070-0017
766.35(d) Form..........................................       2070-0017
766.38..................................................       2070-0054
                                                                        
------------------------------------------------------------------------
     Procedures Governing Testing Consent Agreements and Test Rules     
                                                                        
------------------------------------------------------------------------
790.5...................................................       2070-0033
790.42..................................................       2070-0033
790.45..................................................       2070-0033
790.50..................................................       2070-0033
790.55..................................................       2070-0033
790.60..................................................       2070-0033
790.62..................................................       2070-0033
790.68..................................................       2070-0033
790.80..................................................       2070-0033
790.82..................................................       2070-0033
790.85..................................................       2070-0033
790.99..................................................       2070-0033
                                                                        
------------------------------------------------------------------------
                   Good Laboratory Practice Standards                   
                                                                        
------------------------------------------------------------------------
Part 792................................................      2010-0019,
                                                              2070-0004,
                                                              2070-0017,
                                                              2070-0033,
                                                             2070-0054 &
                                                               2070-0067
                                                                        
------------------------------------------------------------------------
                       Provisional Test Guidelines                      
                                                                        
------------------------------------------------------------------------
795.45..................................................       2070-0067
795.232.................................................       2070-0033
                                                                        
------------------------------------------------------------------------
    Identification of Specific Chemical Substance and Mixture Testing   
                              Requirements                              
                                                                        
------------------------------------------------------------------------
799.1053................................................       2070-0033
799.1250................................................       2070-0033
799.1560................................................       2070-0033
799.1575................................................       2070-0033
799.1645................................................       2070-0033
799.1700................................................       2070-0033
799.2155................................................       2070-0033
799.2325................................................       2070-0033
799.2475................................................       2070-0033
799.2500................................................       2070-0033
799.2700................................................       2070-0033
799.3300................................................       2070-0033
799.4360................................................       2070-0033
799.4440................................................       2070-0033
799.5000................................................       2070-0033
799.5025................................................       2070-0033
799.5050................................................       2070-0033
799.5055................................................       2070-0033
799.5075................................................       2070-0033
------------------------------------------------------------------------
\1\ The ICRs referenced in this section of the Table encompass the      
  applicable general provisions contained in 40 CFR part 60, subpart A, 
  which are not independent information collection requirements.        
\2\ The ICRs referenced in this section of the Table encompass the      
  applicable general provisions contained in 40 CFR part 61, subpart A, 
  which are not independent information collection requirements.        
\3\ The ICRs referenced in this section of the Table encompass the      
  applicable general provisions contained in 40 CFR part 63, subpart A, 
  which are not independent information collection requirements.        


[58 FR 27472, May 10, 1993]

    Editorial Note: For Federal Register citations affecting Sec. 9.1 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.

    Effective Date Notes: 1. At 61 FR 16309, Apr. 12, 1996, in Sec. 9.1 
table, the heading ``Public Information'' and its entry for part 2, 
subpart B were added, effective July 11, 1996.

    2. At 61 FR 33206, June 26, 1996, in Sec. 9.1 table, the entry for 
170.112 was removed and the entry for part 170 was added, effective Aug. 
26, 1996.


[[Page 168]]


    3. At 61 FR 34228, July 1, 1996, in Sec. 9.1 table, entries 71.5, 
71.6(a),(c),(d),(g), 71.7, and 71.9(e)-(j) were added, effective July 
31, 1996.



PART 10--ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT--Table of Contents




                           Subpart A--General

Sec.
10.1  Scope of regulations.

                          Subpart B--Procedures

10.2  Administrative claim; when presented; place of filing.
10.3  Administrative claims; who may file.
10.4  Evidence to be submitted.
10.5  Investigation, examination, and determination of claims.
10.6  Final denial of claim.
10.7  Payment of approved claim.
10.8  Release.
10.9  Penalties.
10.10  Limitation on Environmental Protection Agency's authority.
10.11  Relationship to other agency regulations.

    Authority: Sec. 1, 80 Stat. 306; 28 U.S.C. 2672; 28 CFR Part 14.

    Source: 38 FR 16868, June 27, 1973, unless otherwise noted.



                           Subpart A--General



Sec. 10.1  Scope of regulations.

    The regulations in this part apply only to claims asserted under the 
Federal Tort Claims Act, as amended, 28 U.S.C. 2671-2680, for money 
damages against the United States because of damage to or loss of 
property or personal injury or death, caused by the negligent or 
wrongful act or omission of any employee of the Environmental Protection 
Agency (EPA) while acting within the scope of his/her employment.

[51 FR 25832, July 16, 1986]



                          Subpart B--Procedures



Sec. 10.2   Administrative claim; when presented; place of filing.

    (a) For purpose of the regulations in this part, a claim shall be 
deemed to have been presented when the Environmental Protection Agency 
receives, at a place designated in paragraph (c) of this section, an 
executed Standard Form 95 or other written notification of an incident 
accompanied by a claim for money damages in a sum certain for damage to 
or loss of property, for personal injury, or for death, alleged to have 
occurred by reason of the incident. A claim which should have been 
presented to EPA, but which was mistakenly addressed to or filed with 
another Federal agency, shall be deemed to be presented to EPA as of the 
date that the claim is received by EPA. A claim mistakenly addressed to 
or filed with EPA shall forthwith be transferred to the appropriate 
Federal agency, if ascertainable, or returned to the claimant.
    (b) A claim presented in compliance with paragraph (a) of this 
section may be amended by the claimant at any time prior to final action 
by the Administrator, or his designee, or prior to the exercise of the 
claimant's option to bring suit under 28 U.S.C. 2675(a). Amendments 
shall be submitted in writing and signed by the claimant or his duly 
authorized agent or legal representative. Upon the timely filing of an 
amendment to a pending claim, EPA shall have 6 months in which to make a 
final disposition of the claim as amended and the claimant's option 
under 28 U.S.C. 2675(a) shall not accrue until 6 months after the filing 
of an amendment.
    (c) Forms may be obtained and claims may be filed with the EPA 
office having jurisdiction over the employee involved in the accident or 
incident, or with the EPA Claims Officer, Office of General Counsel (LE-
132G), 401 M Street SW., Washington, DC 20460.

[38 FR 16868, June 27, 1973, as amended at 51 FR 25832, July 16, 1986]



Sec. 10.3   Administrative claims; who may file.

    (a) A claim for injury to or loss of property may be presented by 
the owner of the property interest which is the subject of the claim, 
his duly authorized agent, or his legal representative.
    (b) A claim for personal injury may be presented by the injured 
person, his duly authorized agent, or his legal representative.

[[Page 169]]

    (c) A claim based on death may be presented by the executor or 
administrator of the decedent's estate or by any other person legally 
entitled to assert such a claim under applicable State law.
    (d) A claim for loss wholly compensated by an insurer with the 
rights of a subrogee may be presented by the insurer. A claim for loss 
partially compensated by an insurer with the rights of a subrogee may be 
presented by the insurer or the insured individually as their respective 
interests appear, or jointly. Whenever an insurer presents a claim 
asserting the rights of a subrogee, he shall present with his claim 
appropriate evidence that he has the rights of a subrogee.
    (e) A claim presented by an agent or legal representative shall be 
presented in the name of the claimant, be signed by the agent or legal 
representative, show the title or legal capacity of the person signing, 
and be accompanied by evidence of his authority to present a claim on 
behalf of the claimant as agent, executor, administrator, parent, 
guardian, or other representative.



Sec. 10.4   Evidence to be submitted.

    (a) Death. In support of a claim based on death, the claimant may be 
required to submit the following evidence or information:
    (1) An authenticated death certificate or other competent evidence 
showing cause of death, date of death, and age of the decedent.
    (2) Decedent's employment or occupation at time of death, including 
his monthly or yearly salary or earnings (if any), and the duration of 
his last employment or occupation.
    (3) Full names, addresses, birth dates, kinship, and marital status 
of the decedent's survivors, including identification of those survivors 
who were dependent for support upon the decedent at the time of his 
death.
    (4) Degree of support afforded by the decendent to each survivor 
dependent upon him for support at the time of his death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills for medical and burial expenses incurred by 
reason of the incident causing death, or itemized receipts of payments 
for such expenses.
    (7) If damages for pain and suffering prior to death are claimed, a 
physician's detailed statement specifying the injuries suffered, 
duration of pain and suffering, any drugs administered for pain and the 
decedent's physical condition in the interval between injury and death.
    (8) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the death or the 
damages claimed.
    (b) Personal Injury. In support of a claim for personal injury, 
including pain and suffering, the claimant may be required to submit the 
following evidence or information:
    (1) A written report by his attending physician or dentist setting 
forth the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, and any diminished earning 
capacity. In addition, the claimant may be required to submit to a 
physical or mental examination by a physician employed or designated by 
EPA. A copy of the report of the examining physician shall be made 
available to the claimant upon the claimant's written request provided 
that the claimant has, upon request, furnished the report referred to in 
the first sentence of this subparagraph and has made or agrees in 
writing to make available to EPA any other physician's reports 
previously or thereafter made of the physical or mental condition which 
is the subject matter of his claim.
    (2) Itemized bills for medical, dental, hospital and related 
expenses incurred, or itemized receipts of payment for such expenses.
    (3) If the prognosis reveals the necessity for future treatment, a 
statement of expected duration of and expenses for such treatment.
    (4) If a claim is made for loss of time from employment, a written 
statement from his employer showing actual time lost from employment, 
whether he is a full or part-time employee, and wages or salary actually 
lost.

[[Page 170]]

    (5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually 
lost.
    (6) Any other evidence or information which may have a bearing on 
the responsibility of the United States for either the personal injury 
or the damages claimed.
    (c) Property Damage. In support of a claim for damage to or loss of 
property, real or personal, the claimant may be required to submit the 
following evidence or information:
    (1) Proof of ownership.
    (2) A detailed statement of the amount claimed with respect to each 
item of property.
    (3) An itemized receipt of payment for necessary repairs or itemized 
written estimates of the cost of such repairs.
    (4) A statement listing date of purchase, purchase price, market 
value of the property as of date of damage, and salvage value, where 
repair is not economical.
    (5) Any other evidence or information which may have a bearing on 
the responsibility of the United States either for the injury to or loss 
of property or for the damage claimed.
    (d) Time limit. All evidence required to be submitted by this 
section shall be furnished by the claimant within a reasonable time. 
Failure of a claimant to furnish evidence necessary to a determination 
of his claim within three months after a request therefor has been 
mailed to his last known address may be deemed an abandonment of the 
claim. The claim may be thereupon disallowed.



Sec. 10.5  Investigation, examination, and determination of claims.

    The EPA Claims Officer adjusts, determines, compromises and settles 
all administrative tort claims filed with EPA. In carrying out these 
functions, the EPA Claims Officer makes such investigations as are 
necessary for a determination of the validity of the claim. The decision 
of the EPA Claims Officer is a final agency decision of purposes of 28 
U.S.C. 2675.

[51 FR 25832, July 16, 1986]



Sec. 10.6   Final denial of claim.

    (a) Final denial of an administrative claim shall be in writing and 
sent to the claimant, his attorney, or legal representative by certified 
or registered mail. The notification of final denial may include a 
statement of the reasons for the denial and shall include a statement 
that, if the claimant is dissatisfied with EPA's action, he may file 
suit in an appropriate U.S. District Court not later than 6 months after 
the date of mailing of the notification.
    (b) Prior to the commencement of suit and prior to the expiration of 
the 6-month period after the date of mailing by certified or registered 
mail of notice of final denial of the claim as provided in 28 U.S.C. 
2401(b), a claimant, his duly authorized agent, or legal representative, 
may file a written request with the EPA for reconsideration of a final 
denial of a claim under paragraph (a) of this section. Upon the timely 
filing of a request for reconsideration, EPA shall have 6 months from 
the date of filing in which to make a final disposition of the claim and 
the claimant's option under 28 U.S.C. 2675(a) to bring suit shall not 
accrue until 6 months after the filing of a request for reconsideration. 
Final action on a request for reconsideration shall be effected in 
accordance with the provisions of paragraph (a) of this section.



Sec. 10.7   Payment of approved claim.

    (a) Upon allowance of his claim, claimant or his duly authorized 
agent shall sign the voucher for payment, Standard Form 1145, before 
payment is made.
    (b) When the claimant is represented by an attorney, the voucher for 
payment (SF 1145) shall designate both the claimant and his attorney as 
``payees.'' The check shall be delivered to the attorney whose address 
shall appear on the voucher.
    (c) No attorney shall charge fees in excess of 25 percent of a 
judgment or settlement after litigation, or in excess of 20 percent of 
administrative settlements (28 U.S.C. 2678).



Sec. 10.8   Release.

    Acceptance by the claimant, his agent or legal representative of any 
award, compromise or settlement made

[[Page 171]]

hereunder, shall be final and conclusive on the claimant, his agent or 
legal representative and any other person on whose behalf or for whose 
benefit the claim has been presented, and shall constitute a complete 
release of all claims against either the United States or any employee 
of the Government arising out of the same subject matter.



Sec. 10.9   Penalties.

    A person who files a false claim or makes a false or fraudulent 
statement in a claim against the United States may be liable to a fine 
of not more than $10,000 or to imprisonment of not more than 5 years, or 
both (18 U.S.C. 287,1001), and, in addition, to a forfeiture of $2,000 
and a penalty of double the loss or damage sustained by the United 
States (31 U.S.C. 3729).

[38 FR 16868, June 27, 1973, as amended at 51 FR 25832, July 16, 1986]



Sec. 10.10   Limitation on Environmental Protection Agency's authority.

    (a) An award, compromise or settlement of a claim hereunder in 
excess of $25,000 shall be effected only with the prior written approval 
of the Attorney General or his designee. For the purposes of this 
paragraph, a principal claim and any derivative or subrogated claim 
shall be treated as a single claim.
    (b) An administrative claim may be adjusted, determined, compromised 
or settled hereunder only after consultation with the Department of 
Justice when, in the opinion of the Environmental Protection Agency:
    (1) A new precedent or a new point of law is involved; or
    (2) A question of policy is or may be involved; or
    (3) The United States is or may be entitled to indemnity or 
contribution from a third party and the Agency is unable to adjust the 
third party claim; or
    (4) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $25,000.
    (c) An administrative claim may be adjusted, determined, 
compromised, or settled by EPA hereunder only after consultation with 
the Department of Justice when EPA is informed or is otherwise aware 
that the United States or an employee, agent, or cost-plus contractor of 
the United States is involved in litigation based on a claim arising out 
of the same incident or transaction.



Sec. 10.11   Relationship to other agency regulations.

    The regulations in this part supplement the Attorney General's 
regulations in part 14 of Chapter 1 of title 28, CFR, as amended. Those 
regulations, including subsequent amendments thereto, and the 
regulations in this part apply to the consideration by the Environmental 
Protection Agency of administrative claims under the Federal Tort Claims 
Act.

[38 FR 16868, June 27, 1973, as amended at 51 FR 25832, July 16, 1986]



PART 11--SECURITY CLASSIFICATION REGULATIONS PURSUANT TO EXECUTIVE ORDER 11652--Table of Contents




Sec.
11.1  Purpose.
11.2  Background.
11.3  Responsibilities.
11.4  Definitions.
11.5  Procedures.
11.6  Access by historical researchers and former Government officials.

    Authority: Executive Order 11652 (37 FR 5209, March 10, 1972) and 
the National Security Directive of May 17, 1972 (37 FR 10053, May 19, 
1972).

    Source: 37 FR 23541, Nov. 4, 1972, unless otherwise noted.



Sec. 11.1   Purpose.

    These regulations establish policy and procedures governing the 
classification and declassification of national security information. 
They apply also to information or material designated under the Atomic 
Energy Act of 1954, as amended, as ``Restricted Data,'' or ``Formerly 
Restricted Data'' which, additionally, is subject to the provisions of 
the Act and regulations of the Atomic Energy Commission.



Sec. 11.2   Background.

    While the Environmental Protection Agency does not have the 
authority to

[[Page 172]]

originally classify information or material in the interest of the 
national security, it may under certain circumstances downgrade or 
declassify previously classified material or generate documents 
incorporating classified information properly originated by other 
agencies of the Federal Government which must be safeguarded. Agency 
policy and procedures must conform to applicable provisions of Executive 
Order 11652, and the National Security Council Directive of May 17, 
1972, governing the safeguarding of national security information.



Sec. 11.3   Responsibilities.

    (a) Classification and Declassification Committee: This committee, 
appointed by the Administrator, has the authority to act on all 
suggestions and complaints with respect to EPA's administration of this 
order. It shall establish procedures to review and act within 30 days 
upon all applications and appeals regarding requests for 
declassification. The Administrator, acting through the committee, shall 
be authorized to overrule previous determinations in whole or in part 
when, in its judgment, continued protection is no longer required. If 
the committee determines that continued classification is required under 
section 5(B) of Executive Order 11652, it shall promptly so notify the 
requester and advise him that he may appeal the denial to the 
Interagency Classification Review Committee.
    (b) Director, Security and Inspection Division, Office of 
Administration: The Director, Security and Inspection Division, is 
responsible for the overall management and direction of a program 
designed to assure the proper handling and protection of classified 
information, and that classified information in the Agency's possession 
bears the appropriate classification markings. He also will assure that 
the program operates in accordance with the policy established herein, 
and will serve as Secretary of the Classification and Declassification 
Committee.
    (c) Assistant Administrators, Regional Administrators, Heads of 
Staff Offices, Directors of National Environmental Research Centers are 
responsible for designating an official within their respective areas 
who shall be responsible for:
    (1) Serving as that area's liaison with the Director, Security and 
Inspection Division, for questions or suggestions concerning security 
classification matters.
    (2) Reviewing and approving, as the representative of the 
contracting offices, the DD Form 254, Contract Security Classification 
Specification, issued to contractors.
    (d) Employees; (1) Those employees generating documents 
incorporating classified information properly originated by other 
agencies of the Federal Government are responsible for assuring that the 
documents are marked in a manner consistent with security classification 
assignments.
    (2) Those employees preparing information for public release are 
responsible for assuring that such information is reviewed to eliminate 
classified information.
    (3) All employees are responsible for bringing to the attention of 
the Director, Security and Inspection Division, any security 
classification problems needing resolution.



Sec. 11.4   Definitions.

    (a) Classified information. Official information which has been 
assigned a security classification category in the interest of the 
national defense or foreign relations of the United States.
    (b) Classified material. Any document, apparatus, model, film, 
recording, or any other physical object from which classified 
information can be derived by study, analysis, observation, or use of 
the material involved.
    (c) Marking. The act of physically indicating the classification 
assignment on classified material.
    (d) National security information. As used in this order this term 
is synonymous with ``classified information.'' It is any information 
which must be protected against unauthorized disclosure in the interest 
of the national defense or foreign relations of the United States.
    (e) Security classification assignment. The prescription of a 
specific security classification for a particular area or item of 
information. The information involved constitutes the sole basis for

[[Page 173]]

determining the degree of classification assigned.
    (f) Security classification category. The specific degree of 
classification (Top Secret, Secret or Confidential) assigned to 
classified information to indicate the degree of protection required.
    (1) Top Secret. Top Secret refers to national security information 
or material which requires the highest degree of protection. The test 
for assigning Top Secret classification shall be whether its 
unauthorized disclosure could reasonably be expected to cause 
exceptionally grave damage to the national security. Examples of 
``exceptionally grave damage'' include armed hostilities against the 
United States or its allies; disruption of foreign relations vitally 
affecting the national security; the compromise of vital national 
defense plans or complex cryptologic and communications intelligence 
systems; the revelation of sensitive intelligence operations; and the 
disclosure of scientific or technological developments vital to national 
security. This classification shall be used with the utmost restraint.
    (2) Secret. Secret refers to that national security information or 
material which requires a substantial degree of protection. The test for 
assigning Secret classification shall be whether its unauthorized 
disclosure could reasonably be expected to cause serious damage to the 
national security. Examples of ``serious damage'' include disruption of 
foreign relations significantly affecting the national security; 
significant impairment of a program or policy directly related to the 
national security; revelation of significant military plans or 
intelligence operations; and compromise of scientific or technological 
developments relating to national security. The classification Secret 
shall be sparingly used.
    (3) Confidential. Confidential refers to that national security 
information or material which requires protection. The test for 
assigning Confidential classification shall be whether its unauthorized 
disclosure could reasonably be expected to cause damage to the national 
security.



Sec. 11.5   Procedures.

    (a) General. Agency instructions on access, marking, safekeeping, 
accountability, transmission, disposition, and destruction of 
classification information and material will be found in the EPA 
Security Manual for Safeguarding Classified Material. These instructions 
shall conform with the National Security Council Directive of May 17, 
1972, governing the classification, downgrading, declassification, and 
safeguarding of National Security Information.
    (b) Classification. (1) When information or material is originated 
within EPA and it is believed to require classification, the person or 
persons responsible for its origination shall protect it in the manner 
prescribed for protection of classified information. The information 
will then be transmitted under appropriate safeguards to the Director, 
Security and Inspection Division, who will forward it to the department 
having primary interest in it with a request that a classification 
determination be made.
    (2) A holder of information or material which incorporates 
classified information properly originated by other agencies of the 
Federal Government shall observe and respect the classification assigned 
by the originator.
    (3) If a holder believes there is unnecessary classification, that 
the assigned classification is improper, or that the document is subject 
to declassification, he shall so advise the Director, Security and 
Inspection Division, who will be responsible for obtaining a resolution.
    (c) Downgrading and declassification. Classified information and 
material officially transferred to the Agency during its establishment, 
pursuant to Reorganization Plan No. 3 of 1970, shall be declassified in 
accordance with procedures set forth below. Also, the same procedures 
will apply to the declassification of any information in the Agency's 
possession which originated in departments or agencies which no longer 
exist, except that no declassification will occur in such cases until 
other departments having an interest in the subject matter have been 
consulted. Other classified information in the Agency's possession may 
be downgraded or declassified by the official

[[Page 174]]

authorizing its classification, by a successor in capacity, or by a 
supervisory official of either.
    (1) General Declassification Schedule--(i) Top Secret. Information 
or material originally classified Top Secret shall become automatically 
downgraded to Secret at the end of the second full calendar year 
following the year in which it was originated, downgraded to 
Confidential at the end of the fourth full calendar year following the 
year in which it was originated, and declassified at the end of the 10th 
full calendar year following the year in which it was originated.
    (ii) Secret. Information and material originally classified Secret 
shall become automatically downgraded to Confidential at the end of the 
second full calendar year following the year in which it was originated, 
and declassified at the end of the eighth full calendar year following 
the year in which it was originated.
    (iii) Confidential. Information and material originally classified 
Confidential shall become automatically declassified at the end of the 
sixth full calendar year following the year in which it was originated.
    (2) Exemption from the General Declassification Schedule. 
Information or material classified before June 1, 1972, assigned to 
Group 4 under Executive Order No. 10501, as amended, shall be subject to 
the General Declassification Schedule. All other information or material 
classified before June 1, 1972, whether or not assigned to Groups 1, 2, 
or 3, of Executive Order No. 10501, as amended, shall be excluded from 
the General Declassification Schedule. However, at any time after the 
expiration of 10 years after the date of origin it shall be subject to a 
mandatory classification review and disposition in accordance with the 
following criteria and conditions:
    (i) It shall be declassified unless it falls within one of the 
following criteria:
    (a) Classified information or material furnished by foreign 
governments or international organizations and held by the United States 
on the understanding that it be kept in confidence.
    (b) Classified information or material specifically covered by 
statute, or pertaining to cryptography, or disclosing intelligence 
sources or methods.
    (c) Classified information or material disclosing a system, plan, 
installation, project, or specific foreign relations matter, the 
continuing protection of which is essential to the national security.
    (d) Classified information or material the disclosure of which would 
place a person in immediate jeopardy.
    (ii) Mandatory review of exempted material. All classified 
information and material originated after June 1, 1972, which is 
exempted under any of the above criteria shall be subject to a 
classification review by the originating department at any time after 
the expiration of 10 years from the date of origin provided:
    (a) A department or member of the public requests a review;
    (b) The request describes the document or record with sufficient 
particularity to enable the department to identify it; and
    (c) The record can be obtained with a reasonable amount of effort.
    (d) Information or material which no longer qualifies for exemption 
under any of the above criteria shall be declassified. Information or 
material which continues to qualify under any of the above criteria 
shall be so marked, and, unless impossible, a date for automatic 
declassification shall be set.
    (iii) All requests for ``mandatory review'' shall be directed to:

Director, Security and Inspection Division, Environmental Protection 
Agency, Washington, DC 20460.

The Director, Security and Inspection Division shall promptly notify the 
action office of the request, and the action office shall immediately 
acknowledge receipt of the request in writing.
    (iv) Burden of proof for administrative determinations. The burden 
of proof is on the originating Agency to show that continued 
classification is warranted within the terms of this paragraph (c)(2).
    (v) Availability of declassified material. Upon a determination 
under paragraph (ii) of this paragraph (c)(2), that the requested 
material no longer warrants classification, it shall be declassified

[[Page 175]]

and made promptly available to the requester, if not otherwise exempt 
from disclosure under section 552(b) of Title 5 U.S.C. (Freedom of 
Information Act) or other provision of law.
    (vi) Classification review requests. As required by paragraph (ii) 
of this paragraph (c)(2) of this order, a request for classification 
review must describe the document with sufficient particularity to 
enable the Department or Agency to identify it and obtain it with a 
reasonable amount of effort. Whenever a request is deficient in its 
description of the record sought, the requester should be asked to 
provide additional identifying information whenever possible. Before 
denying a request on the ground that it is unduly burdensome, the 
requester should be asked to limit his request to records that are 
reasonably obtainable. If nonetheless the requester does not describe 
the records sought with sufficient particularity, or the record 
requested cannot be obtained with a reasonable amount of effort, the 
requester shall be notified of the reasons why no action will be taken 
and of his right to appeal such decision.



Sec. 11.6   Access by historical researchers and former Government officials.

    (a) Access to classified information or material may be granted to 
historical researchers or to persons who formerly occupied policymaking 
positions to which they were appointed by the President: Provided, 
however, That in each case the head of the originating Department shall:
    (1) Determine that access is clearly consistent with the interests 
of the national security; and
    (2) Take appropriate steps to assure that classified information or 
material is not published or otherwise compromised.
    (b) Access granted a person by reason of his having previously 
occupied a policymaking position shall be limited to those papers which 
the former official originated, reviewed, signed, or received while in 
public office, except as related to the ``Declassification of 
Presidential Papers,'' which shall be treated as follows:
    (1) Declassification of Presidential Papers. The Archivist of the 
United States shall have authority to review and declassify information 
and material which has been classified by a President, his White House 
Staff or special committee or commission appointed by him and which the 
Archivist has in his custody at any archival depository, including a 
Presidential library. Such declassification shall only be undertaken in 
accord with:
    (i) The terms of the donor's deed of gift;
    (ii) Consultations with the Departments having a primary subject-
matter interest; and
    (iii) The provisions of Sec. 11.5(c).



PART 12--NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE ENVIRONMENTAL PROTECTION AGENCY--Table of Contents




Sec.
12.101  Purpose.
12.102  Application.
12.103  Definitions.
12.104--12.109  [Reserved]
12.110  Self-evaluation.
12.111  Notice.
12.112--12.129  [Reserved]
12.130  General prohibitions against discrimination.
12.131--12.139  [Reserved]
12.140  Employment.
12.141--12.148  [Reserved]
12.149  Program accessibility: Discrimination prohibited.
12.150  Program accessibility: Existing facilities.
12.151  Program accessibility: New construction and alterations.
12.152--12.159  [Reserved]
12.160  Communications.
12.161--12.169  [Reserved]
12.170  Compliance procedures.
12.171--12.999  [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 52 FR 30606, Aug. 14, 1987, unless otherwise noted.



Sec. 12.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the U.S. Postal

[[Page 176]]

Service. Section 504 regulations applicable to recipients of financial 
assistance from the Environmental Protection Agency (EPA) may be found 
at 40 CFR part 7 (1986).



Sec. 12.102  Application.

    This part applies to all programs or activities conducted by the 
agency, except for programs or activities conducted outside the United 
States that do not involve individuals with handicaps in the United 
States.



Sec. 12.103  Definitions.

    For purposes of this part, the term--
    Agency means Environmental Protection Agency.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, U.S. Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive, digestive, 
genitourinary; hemic and lymphatic; skin, and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.

[[Page 177]]

    Qualified individual with handicaps means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity, without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature; or
    (2) With respect to any other program or activity an individual with 
handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this part by Sec. 12.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
Sec. Sec. 12.104--12.109  [Reserved]



Sec. 12.110  Self-evaluation.

    (a) The agency shall, by November 13, 1987, begin a nationwide 
evaluation, of its current policies and practices, and the effects 
thereof, that do not or may not meet the requirements of this part. The 
agency shall provide an opportunity to interested persons, including 
individuals with handicaps or organizations representing individuals 
with handicaps to, participate in the self-evaluation process by 
submitting comments (both oral and written).
    (b) The evaluation shall be concluded by September 14, 1988, with a 
written report submitted to the Administrator that states the findings 
of the self-evaluation, any remedial action taken, and recommendations, 
if any, for further remedial action.
    (c) The Administrator shall, within 60 days of the receipt of the 
report of the evaluation and recommendations, direct that certain 
remedial actions be taken as he/she deems appropriate.
    (d) The agency shall, for at least three years following completion 
of the evaluation required under paragraph (b) of this section, maintain 
on file and make available for public inspection:
    (1) A list of the interested persons consulted;
    (2) A description of the areas examined and any problems identified; 
and
    (3) A description of any modifications made.



Sec. 12.111  Notice.

    The agency shall make available to employees, unions representing 
employees, applicants, participants, beneficiaries, and other interested 
persons such information regarding the provisions of this part and its 
applicability to the programs or activities conducted by the agency, and 
make such information available to them in such manner as the agency 
head finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.
Sec. Sec. 12.112--12.129  [Reserved]



Sec. 12.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b) (1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit,

[[Page 178]]

or service that is not equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of individuals 
with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the program or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.
Sec. Sec. 12.131--12.139  [Reserved]



Sec. 12.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.
Sec. Sec. 12.141--12.148  [Reserved]



Sec. 12.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 12.150, no qualified individual 
with handicaps shall, because the agency's facilities are inaccessible 
to or unusable by individuals with handicaps, be denied the benefits of, 
be excluded from

[[Page 179]]

participation in, or otherwise be subjected to discrimination under any 
program or activity conducted by the agency.



Sec. 12.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 12.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or designee after 
considering all agency resources available for use in the funding and 
operation of the conducted program or activity, and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that individuals with 
handicaps receive the benefits and services of the program or activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with handicaps. The agency is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The agency, in 
making alterations to existing buildings, shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the agency shall give priority to those 
methods that offer programs and activities to qualified individuals with 
handicaps in the most integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by November 13, 1987, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by September 14, 1990, but in any event as expeditiously 
as possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by March 14, 1988, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall provide 
an opportunity to interested persons, including individuals with 
handicaps or organizations representing individuals with handicaps to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and

[[Page 180]]

    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 12.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.
Sec. Sec. 12.152--12.159  [Reserved]



Sec. 12.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individuals with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 12.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
individuals with handicaps receive the benefits and services of the 
program or activity.
Sec. Sec. 12.161--12.169  [Reserved]



Sec. 12.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) Responsibility for coordinating implementation of this section 
shall be vested in the Director of the Office of Civil Rights, EPA or 
his/her designate.
    (d) The complainant may file a complete complaint at any EPA office. 
All complete complaints must be filed

[[Page 181]]

within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause. The agency shall accept and 
investigate all complete complaints for which it has jurisdiction.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building of facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by paragraph (g) of this section. The 
agency may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the 
Administrator or a designee.
    (j) The Administrator or a designee shall notify the complainant of 
the results of the appeal within 60 days of the receipt of the request. 
If the Administrator or designee determines that additional information 
is needed from the complainant, he or she shall have 60 days from the 
date of receipt of the additional information to make his or her 
determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
above may be extended with the permission of the Assistant Attorney 
General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.
Sec. Sec. 12.171--12.999  [Reserved]



PART 13--CLAIMS COLLECTION STANDARDS--Table of Contents




                           Subpart A--General

Sec.
13.1  Purpose and scope.
13.2  Definitions.
13.3  Interagency claims.
13.4  Other remedies.
13.5  Claims involving criminal activities or misconduct.
13.6  Subdivision of claims not authorized.
13.7  Omission not a defense.

                          Subpart B--Collection

13.8  Collection rule.
13.9  Initial notice.
13.10  Aggressive collection actions; documentation.
13.11  Interest, penalty and administrative costs.
13.12  Interest and charges pending waiver or review.
13.13  Contracting for collection services.
13.14  Use of credit reporting agencies.
13.15  Taxpayer information.
13.16  Liquidation of collateral.
13.17  Suspension or revocation of license or eligibility.
13.18  Installment payments.
13.19  Analysis of costs; automation; prevention of overpayments, 
          delinquencies or defaults.

                    Subpart C--Administrative Offset

13.20  Administrative offset of general debts.
13.21  Employee salary offset--general.
13.22  Salary offset when EPA is the creditor agency.
13.23  Salary offset when EPA is not the creditor agency.

                     Subpart D--Compromise of Debts

13.24  General.
13.25  Standards for compromise.
13.26  Payment of compromised claims.
13.27  Joint and several liability.
13.28  Execution of releases.

               Subpart E--Suspension of Collection Action

13.29  Suspension--general.
13.30  Standards for suspension.

                     Subpart F--Termination of Debts

13.31  Termination--general.
13.32  Standards for termination.

[[Page 182]]

                          Subpart G--Referrals

13.33  Referrals to the Department of Justice.

        Subpart H--Referral of Debts to IRS for Tax Refund Offset

13.34  Purpose.
13.35  Applicability and scope.
13.36  Administrative charges.
13.37  Notice requirement before offset.
13.38  Review within the Agency.
13.39  Agency determination.
13.40  Stay of offset.

    Authority:5 U.S.C. 552a, 5512, and 5514; 31 U.S.C. 3711 et seq. and 
3720A; 4 CFR parts 101-10.

    Source: 53 FR 37270, Sept. 23, 1988, unless otherwise noted.



                           Subpart A--General



Sec. 13.1  Purpose and scope.

    This regulation prescribes standards and procedures for the 
Environmental Protection Agency's (EPA's) collection and disposal of 
debts. These standards and procedures are applicable to all debts for 
which a statute, regulation or contract does not prescribe different 
standards or procedures. This regulation covers EPA's collection, 
compromise, suspension, termination, and referral of debts.



Sec. 13.2  Definitions.

    (a) Debt means an amount owed to the United States from sources 
which include loans insured or guaranteed by the United States and all 
other amounts due the United States from fees, grants, contracts, 
leases, rents, royalties, services, sales of real or personal property, 
overpayments, fines, penalties, damages, interest, forfeitures (except 
those arising under the Uniform Code of Military Justice), and all other 
similar sources. As used in this regulation, the terms debt and claim 
are synonymous.
    (b) Delinquent debt means any debt which has not been paid by the 
date specified by the Government for payment or which has not been 
satisfied in accordance with a repayment agreement.
    (c) Debtor means an individual, organization, association, 
corporation, or a State or local government indebted to the United 
States or a person or entity with legal responsibility for assuming the 
debtor's obligation.
    (d) Agency means the United States Environmental Protection Agency.
    (e) Administrator means the Administrator of EPA or an EPA employee 
or official designated to act on the Administrator's behalf.
    (f) Administrative offset means the withholding of money payable by 
the United States to, or held by the United States for, a person to 
satisfy a debt the person owes the Government.
    (g) Creditor agency means the Federal agency to which the debt is --
wed.
    (h) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or in the case of an 
employee not entitled to basic pay, other authorized pay remaining after 
the deduction of any amount described in 5 CFR 581.105 (b) through (f). 
These deductions include, but are not limited to: Social security 
withholdings; Federal, State and local tax withholdings; health 
insurance premiums; retirement contributions; and life insurance 
premiums.
    (i) Employee means a current employee of the Federal Government 
including a current member of the Armed Forces.
    (j) Person means an individual, firm, partnership, corporation, 
association and, except for purposes of administrative offsets under 
subpart C and interest, penalty and administrative costs under subpart B 
of this regulation, includes State and local governments and Indian 
tribes and components of tribal governments.
    (k) Employee salary offset means the administrative collection of a 
debt by deductions at one or more officially established pay intervals 
from the current pay account of an employee without the employee's 
consent.
    (l) Waiver means the cancellation, remission, forgiveness or non-
recovery of a debt or debt-related charge as permitted or required by 
law.



Sec. 13.3  Interagency claims.

    This regulation does not apply to debts owed EPA by other Federal 
agencies. Such debts will be resolved by negotiation between the 
agencies or by referral to the General Accounting Office (GAO).

[[Page 183]]



Sec. 13.4  Other remedies.

    (a) This regulation does not supersede or require omission or 
duplication of administrative proceedings required by contract, statute, 
regulation or other Agency procedures, e.g., resolution of audit 
findings under grants or contracts, informal grant appeals, formal 
appeals, or review under a procurement contract.
    (b) The remedies and sanctions available to the Agency under this 
regulation for collecting debts are not intended to be exclusive. The 
Agency may impose, where authorized, other appropriate sanctions upon a 
debtor for inexcusable, prolonged or repeated failure to pay a debt. For 
example, the Agency may stop doing business with a grantee, contractor, 
borrower or lender; convert the method of payment under a grant or 
contract from an advance payment to a reimbursement method; or revoke a 
grantee's or contractor's letter-of-credit.



Sec. 13.5  Claims involving criminal activities or misconduct.

    (a) The Administrator will refer cases of suspected criminal 
activity or misconduct to the EPA Office of Inspector General. That 
office has the responsibility for investigating or referring the matter, 
where appropriate, to the Department of Justice (DOJ), and/or returning 
it to the Administrator for further actions. Examples of activities 
which should be referred are matters involving fraud, anti-trust 
violations, embezzlement, theft, false claims or misuse of Government 
money or property.
    (b) The Administrator will not administratively compromise, 
terminate, suspend or otherwise dispose of debts involving criminal 
activity or misconduct without the approval of DOJ.



Sec. 13.6  Subdivision of claims not authorized.

    A claim will not be subdivided to avoid the $20,000 limit on the 
Agency's authority to compromise, suspend, or terminate a debt. A 
debtor's liability arising from a particular transaction or contract is 
a single claim.



Sec. 13.7  Omission not a defense.

    Failure by the Administrator to comply with any provision of this 
regulation is not available to a debtor as a defense against payment of 
a debt.



                          Subpart B--Collection



Sec. 13.8  Collection rule.

    (a) The Administrator takes action to collect all debts owed the 
United States arising out of EPA activities and to reduce debt 
delinquencies. Collection actions may include sending written demands to 
the debtor's last known address. Written demand may be preceded by other 
appropriate action, including immediate referral to DOJ for litigation, 
when such action is necessary to protect the Government's interest. The 
Administrator may contact the debtor by telephone, in person and/or in 
writing to demand prompt payment, to discuss the debtor's position 
regarding the existence, amount or repayment of the debt, to inform the 
debtor of its rights (e.g., to apply for waiver of the indebtedness or 
to have an administrative review) and of the basis for the debt and the 
consequences of nonpayment or delay in payment.
    (b) The Administrator maintains an administrative file for each debt 
and/or debtor which documents the basis for the debt, all administrative 
collection actions regarding the debt (including communications to and 
from the debtor) and its final disposition. Information from a debt file 
relating to an individual may be disclosed only for purposes which are 
consistent with this regulation, the Privacy Act of 1974 and other 
applicable law.



Sec. 13.9  Initial notice.

    (a) When the Administrator determines that a debt is owed EPA, he 
provides a written initial notice to the debtor. Unless otherwise 
provided by agreement, contract or order, the initial notice informs the 
debtor:
    (1) Of the amount, nature and basis of the debt;
    (2) That payment is due immediately upon receipt of the notice;
    (3) That the debt is considered delinquent if it is not paid within 
30 days of the date mailed or hand-delivered;

[[Page 184]]

    (4) That interest charges and, except for State and local 
governments and Indian tribes, penalty charges and administrative costs 
may be assessed against a delinquent debt;
    (5) Of any rights available to the debtor to dispute the validity of 
the debt or to have recovery of the debt waived (citing the available 
review or waiver authority, the conditions for review or waiver, and the 
effects of the review or waiver request on the collection of the debt), 
and of the possibility of assessment of interest, penalty and 
administrative costs; and
    (6) The address, telephone number and name of the person available 
to discuss the debt.
    (b) EPA will respond promptly to communications from the debtor. 
Response generally will be within 20 days of receipt of communication 
from the debtor.
    (c) Subsequent demand letters also will advise the debtor of any 
interest, penalty or administrative costs which have been assessed and 
will advise the debtor that the debt may be referred to a credit 
reporting agency (see Sec. 13.14), a collection agency (see Sec. 13.13) 
or to DOJ (see Sec. 13.33) if it is not paid.



Sec. 13.10  Aggressive collection actions; documentation.

    (a) EPA takes actions and effective follow-up on a timely basis to 
collect all claims of the United States for money and property arising 
out of EPA's activities. EPA cooperates with other Federal agencies in 
their debt collection activities.
    (b) All administrative collection actions are documented in the 
claim file, and the bases for any compromise, termination or suspension 
of collection actions is set out in detail. This documentation, 
including the Claims Collection Litigation Report required Sec. 13.33, 
is retained in the appropriate debt file.



Sec. 13.11  Interest, penalty and administrative costs.

    (a) Interest. EPA will assess interest on all delinquent debts 
unless prohibited by statute, regulation or contract.
    (1) Interest begins to accrue on all debts from the date of the 
initial notice to the debtor. EPA will not recover interest where the 
debt is paid within 30 days of the date of the notice. EPA will assess 
an annual rate of interest that is equal to the rate of the current 
value of funds to the United States Treasury (i.e., the Treasury tax and 
loan account rate) as prescribed and published by the Secretary of the 
Treasury in the Federal Register and the Treasury Fiscal Requirements 
Manual Bulletins, unless a different rate is necessary to protect the 
interest of the Government. EPA will notify the debtor of the basis for 
its finding that a different rate is necessary to protect the interest 
of the Government.
    (2) The Administrator may extend the 30-day period for payment where 
he determines that such action is in the best interest of the 
Government. A decision to extend or not to extend the payment period is 
final and is not subject to further review.
    (3) The rate of interest, as initially assessed, remains fixed for 
the duration of the indebtedness. If a debtor defaults on a repayment 
agreement, interest may be set at the Treasury rate in effect on the 
date a new agreement is executed.
    (4) Interest will not be assessed on interest charges, 
administrative costs or later payment penalties. However, where a debtor 
defaults on a previous repayment agreement and interest, administrative 
costs and penalties charges have been waived under the defaulted 
agreement, these charges can be reinstated and added to the debt 
principal under any new agreement and interest charged on the entire 
amount of the debt.
    (b) Administrative costs of collecting overdue debts. The costs of 
the Agency's administrative handling of overdue debts, based on either 
actual or average cost incurred, will be charged on all debts except 
those owed by State and local governments and Indian tribes. These costs 
include both direct and indirect costs. Administrative costs will be 
assessed monthly throughout the period the debt is overdue except as 
provided by Sec. 13.12.
    (c) Penalties. As provided by 31 U.S.C. 3717(e)(2), a penalty charge 
will be assessed on all debts, except those owned

[[Page 185]]

by State and local governments and Indian tribes, more than 90 days 
delinquent. The penalty charge will be at a rate not to exceed 6% per 
annum and will be assessed monthly.
    (d) Allocation of payments. A partial payment by a debtor will be 
applied first to outstanding administrative costs, second to penalty 
assessments, third to accrued interest and then to the outstanding debt 
principal.
    (e) Waiver. (1) The Administrator may (without regard to the amount 
of the debt) waive collection of all or part of accrued interest, 
penalty or administrative costs, where he determines that--
    (i) Waiver is justified under the criteria of Sec. 13.25;
    (ii) The debt or the charges resulted from the Agency's error, 
action or inaction, and without fault by the debtor; or
    (iii) Collection of these charges would be against equity and good 
conscience or not in the best interest of the United States.
    (2) A decision to waive interest, penalty charges or administrative 
costs may be made at any time prior to payment of a debt. However, where 
these charges have been collected prior to the waiver decision, they 
will not be refunded. The Administrator's decision to waive or not waive 
collection of these charges is a final agency action.



Sec. 13.12  Interest and charges pending waiver or review.

    Interest, penalty charges and administrative costs will continue to 
accrue on a debt during administrative appeal, either formal or 
informal, and during waiver consideration by the Agency; except, that 
interest, penalty charges and administrative costs will not be assessed 
where a statute or a regulation specifically prohibits collection of the 
debt during the period of the administrative appeal or the Agency 
review.



Sec. 13.13  Contracting for collection services.

    EPA will use private collection services where it determines that 
their use is in the best interest of the Government. Where EPA 
determines that there is a need to contract for collection services it 
will--
    (a) Retain sole authority to resolve any dispute by the debtor of 
the validity of the debt, to compromise the debt, to suspend or 
terminate collection action, to refer the debt to DOJ for litigation, 
and to take any other action under this part which does not result in 
full collection of the debt;
    (b) Require the contractor to comply with the Privacy Act of 1974, 
as amended, to the extent specified in 5 U.S.C. 552a(m), with applicable 
Federal and State laws pertaining to debt collection practices (e.g., 
the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.)), and 
with applicable regulations of the Internal Revenue Service;
    (c) Require the contractor to account accurately and fully for all 
amounts collected; and
    (d) Require the contractor to provide to EPA, upon request, all data 
and reports contained in its files relating to its collection actions on 
a debt.



Sec. 13.14  Use of credit reporting agencies.

    EPA reports delinquent debts to appropriate credit reporting 
agencies.
    (a) EPA provides the following information to the reporting 
agencies:
    (1) A statement that the claim is valid and is overdue;
    (2) The name, address, taxpayer identification number and any other 
information necessary to establish the identity of the debtor;
    (3) The amount, status and history of the debt; and
    (4) The program or pertinent activity under which the debt arose.
    (b) Before disclosing debt information, EPA will:
    (1) Take reasonable action to locate the debtor if a current address 
is not available; and
    (2) If a current address is available, notify the debtor by 
certified mail, return receipt requested, that:
    (i) The designated EPA official has reviewed the claim and has 
determined that it is valid and overdue;
    (ii) That within 60 days EPA intends to disclose to a credit 
reporting agency the information authorized for disclosure by this 
subsection; and
    (iii) The debtor can request a complete explanation of the claim, 
can dispute the information in EPA's records

[[Page 186]]

concerning the claim, and can file for an administrative review, waiver 
or reconsideration of the claim, where applicable.
    (c) Before information is submitted to a credit reporting agency, 
EPA will provide a written statement to the reporting agency that all 
required actions have been taken. Additionally, EPA will, thereafter, 
ensure that the credit reporting agency is promptly informed of any 
substantive change in the conditions or amounts of the debt, and 
promptly verify or correct information relevant to the claim.
    (d) If a debtor disputes the validity of the debt, the credit 
reporting agency will refer the matter to the appropriate EPA official. 
The credit reporting agency will exclude the debt from its reports until 
EPA certifies in writing that the debt is valid.



Sec. 13.15  Taxpayer information.

    (a) The Administrator may obtain a debtor's current mailing address 
from the Internal Revenue Service.
    (b) Addresses obtained from the Internal Revenue Service will be 
used by the Agency, its officers, employees, agents or contractors and 
other Federal agencies only to collect or dispose of debts, and may be 
disclosed to credit reporting agencies only for the purpose of their use 
in preparing a commercial credit report on the taxpayer for use by EPA.



Sec. 13.16  Liquidation of collateral.

    Where the Administrator holds a security instrument with a power of 
sale or has physical possession of collateral, he may liquidate the 
security or collateral and apply the proceeds to the overdue debt. EPA 
will exercise this right where the debtor fails to pay within a 
reasonable time after demand, unless the cost of disposing of the 
collateral is disproportionate to its value or special circumstances 
require judicial foreclosure. However, collection from other businesses, 
including liquidation of security or collateral, is not a prerequisite 
to requiring payment by a surety or insurance company unless expressly 
required by contract or statute. The Administrator will give the debtor 
reasonable notice of the sale and an accounting of any surplus proceeds 
and will comply with any other requirements of law or contract.



Sec. 13.17  Suspension or revocation of license or eligibility.

    When collecting statutory penalties, forfeitures, or debts for 
purposes of enforcement or compelling compliance, the Administrator may 
suspend or revoke licenses or other privileges for any inexcusable, 
prolonged or repeated failure of a debtor to pay a claim. Additionally, 
the Administrator may suspend or disqualify any contractor, lender, 
broker, borrower, grantee or other debtor from doing business with EPA 
or engaging in programs EPA sponsors or funds if a debtor fails to pay 
its debts to the Government within a reasonable time. Debtors will be 
notified before such action is taken and applicable suspension or 
debarment procedures will be used. The Administrator will report the 
failure of any surety to honor its obligations to the Treasury 
Department for action under 6 U.S.C. 11.



Sec. 13.18  Installment payments.

    (a) Whenever, feasible, and except as otherwise provided by law, 
debts owed to the United States, together with interest, penalty and 
administrative costs, as required by Sec. 13.11, will be collected in a 
single payment. However, where the Administrator determines that a 
debtor is financially unable to pay the indebtedness in a single payment 
or that an alternative payment mechanism is in the best interest of the 
United States, the Administrator may approve repayment of the debt in 
installments. The debtor has the burden of establishing that it is 
financially unable to pay the debt in a single payment or that an 
alternative payment mechanism is warranted. If the Administrator agrees 
to accept payment by installments, the Administrator may require a 
debtor to execute a written agreement which specifies all the terms of 
the repayment arrangement and which contains a provision accelerating 
the debt in the event of default. The size and frequency of installment 
payments will bear a reasonable relation to the size of the debt and the 
debtor's ability to pay. The installment payments will be sufficient in

[[Page 187]]

size and frequency to liquidate the debt in not more than 3 years, 
unless the Administrator determines that a longer period is required. 
Installment payments of less than $50 per month generally will not be 
accepted, but may be accepted where the debtor's financial or other 
circumstances justify. If the debt is unsecured, the Administrator may 
require the debtor to execute a confess-judgment note with a tax carry-
forward and a tax carry-back provision. Where the Administrator secures 
a confess-judgment note, the Administrator will provide the debtor a 
written explanation of the consequences of the debtor's signing the 
note.
    (b) If a debtor owes more than one debt and designates how a 
voluntary installment payment is to be applied among the debts, that 
designation will be approved if the Administrator determines that the 
designation is in the best interest of the United States. If the debtor 
does not designate how the payment is to be applied, the Administrator 
will apply the payment to the various debts in accordance with the best 
interest of the United States, paying special attention to applicable 
statutes of limitations.



Sec. 13.19  Analysis of costs; automation; prevention of overpayments, delinquencies or defaults.

    (a) The Administrator may periodically compare EPA's costs in 
handling debts with the amounts it collects,
    (b) The Administrator may periodically consider the need, 
feasibility, and cost effectiveness of automated debt collection 
operations.
    (c) The Administrator may establish internal controls to identify 
the causes of overpayments and delinquencies and may issue procedures to 
prevent future occurrences of the identified problems.



                    Subpart C--Administrative Offset



Sec. 13.20  Administrative offset of general debts.

    This subpart provides for EPA's collection of debts by 
administrative offset under section 5 of the Debt Collection Act of 1982 
(31 U.S.C. 3716), other statutory authorities and the common law. It 
does not apply to offsets against employee salaries covered by 
Sec. Sec. 13.21, 13.22 and 13.23 of this subpart. EPA will collect debts 
by administrative offsets where it determines that such collections are 
feasible and are not otherwise prohibited by statute or contract.
    EPA will decide, on a case-by-case basis, whether collection by 
administrative offset is feasible and that its use furthers and protects 
the interest of the United States.
    (a) Standards. (1) The Administrator collects debts by 
administrative offset if--
    (i) The debt is certain in amount;
    (ii) Efforts to obtain direct payment from the debtor have been, or 
would most likely be, unsuccessful or the Administrator and the debtor 
agree to the offset;
    (iii) Offset is not expressly or implicitly prohibited by statute, 
regulation or contract;
    (iv) Offset is cost-effective or has significant deterrent value;
    (v) Offset does not substantially impair or defeat program 
objectives; and
    (vi) Offset is best suited to further and protect the Government's 
interest.
    (2) The Administrator may, in determining the method and amount of 
the offset, consider the financial impact on the debtor.
    (b) Interagency offset. The Administrator may offset a debt owed to 
another Federal agency from amounts due or payable by EPA to the debtor, 
or may request another Federal agency to offset a debt owed to EPA. The 
Administrator may request the Internal Revenue Service to offset an 
overdue debt from a Federal income tax refund due a debtor where 
reasonable attempts to obtain payment have failed. Interagency offsets 
from employee salaries will be made in accordance with the procedures 
contained in Sec. Sec. 13.22 and 13.23.
    (c) Multiple debts.  Where moneys are available for offset against 
multiple debts of a debtor, it will be applied in accordance with the 
best interest of the Government as determined by the Administrator on a 
case-by-case basis.
    (d) Statutory bar to offset. Administrative offset will not be made 
more than 10 years after the Government's right to collect the debt 
first accrued, unless facts material to the Government's

[[Page 188]]

right to collect the debt were not known and could not have been known 
through the exercise of reasonable care by the officer responsible for 
discovering or collecting the debt. For purposes of offset, the right to 
collect a debt accrues when the appropriate EPA official determines that 
a debt exists (e.g., contracting officer, grant award official, etc.), 
when it is affirmed by an administrative appeal or a court having 
jurisdiction, or when a debtor defaults on a payment agreement, 
whichever is latest. An offset occurs when money payable to the debtor 
is first withheld or when EPA requests offset from money held by another 
agency.
    (e) Pre-offset notice. Before initiating offset, the Administrator 
sends the debtor written notice of:
    (1) The basis for and the amount of the debt as well as the Agency's 
intention to collect the debt by offset if payment or satisfactory 
response has not been received within 30 days of the notice;
    (2) The debtor's right to submit an alternative repayment schedule, 
to inspect and copy agency records pertaining to the debt, to request 
review of the determination of indebtedness or to apply for waiver under 
any available statute or regulation; and
    (3) Applicable interest, penalty charges and administrative costs.
    (f) Alternative repayment. The Administrator may, at the 
Administrator's discretion, enter into a repayment agreement with the 
debtor in lieu of offset. In deciding whether to accept payment of the 
debt by an alternative repayment agreement, the Administrator may 
consider such factors as the amount of the debt, the length of the 
proposed repayment period, whether the debtor is willing to sign a 
confess-judgment note, past Agency dealings with the debtor, 
documentation submitted by the debtor indicating that an offset will 
cause undue financial hardship, and the debtor's financial ability to 
adhere to the terms of a repayment agreement. The Administrator may 
require financial documentation from the debtor before considering the 
repayment arrangement.
    (g) Review of administrative determination. (1) A debt will not be 
offset while a debtor is seeking either formal or informal review of the 
validity of the debt under this section or under another statute, 
regulation or contract. However, interest, penalty and administrative 
costs will continue to accrue during this period, unless otherwise 
waived by the Administrator. The Administrator may initiate offset as 
soon as practical after completion of review or after a debtor waives 
the opportunity to request review.
    (2) The Administrator may administratively offset a debt prior to 
the completion of a formal or informal review where the determines that:
    (i) Failure to take the offset would substantially prejudice EPA's 
ability to collect the debt; and
    (ii) The time before the first offset is to be made does not 
reasonably permit the completion of the review procedures. (Offsets 
taken prior to completion of the review process will be followed 
promptly by the completion of the process. Amounts recovered by offset 
but later found not to be owed will be refunded promptly.)
    (3) The debtor must provide a written request for review of the 
decision to offset the debt no later than 15 days after the date of the 
notice of the offset unless a different time is specifically prescribed. 
The debtor's request must state the basis for the request for review.
    (4) The Administrator may grant an extension of time for filing a 
request for review if the debtor shows good cause for the late filing. A 
debtor who fails timely to file or to request an extension waives the 
right to review.
    (5) The Administrator will issue, no later than 60 days after the 
filing of the request, a written final decision based on the evidence, 
record and applicable law.



Sec. 13.21  Employee salary offset--general.

    (a) Purpose. This section establishes EPA's policies and procedures 
for recovery of debts owed to the United States by installment 
collection from the current pay account of an employee.
    (b) Scope. The provisions of this section apply to collection by 
salary offset under 5 U.S.C. 5514 of debts owed EPA

[[Page 189]]

and debts owed to other Federal agencies by EPA employees. This section 
does not apply to debts owed EPA arising from travel advances under 5 
U.S.C. 5705, employee training expenses under 5 U.S.C. 4108 and to other 
debts where collection by salary offset is explicitly provided for or 
prohibited by another statute.
    (c) References. The following statutes and regulations apply to 
EPA's recovery of debts due the United States by salary offset:
    (1) 5 U.S.C. 5514, as amended, governing the installment collection 
of debts;
    (2) 31 U.S.C. 3716, governing the liquidation of debts by 
administrative offset;
    (3) 5 CFR part 550, subpart K, setting forth the minimum 
requirements for executive agency regulations on salary offset; and
    (4) 4 CFR parts 101-105, the Federal Claims Collection Standards.



Sec. 13.22  Salary offset when EPA is the creditor agency.

    (a) Entitlement to notice, hearing, written response and decision. 
(1) Prior to initiating collection action through salary offset, EPA 
will first provide the employee with the opportunity to pay in full the 
amount owed, unless such notification will compromise the Government's 
ultimate ability to collect the debt.
    (2) Except as provided in paragraph (b) of this section, each 
employee from whom the Agency proposes to collect a debt by salary 
offset under this section is entitled to receive a written notice as 
described in paragraph (c) of this section.
    (3) Each employee owing a debt to the United States which will be 
collected by salary offset is entitled to request a hearing on the debt. 
This request must be filed as prescribed in paragraph (d) of this 
section. The Agency will make appropriate hearing arrangements which are 
consistent with law and regulations. Where a hearing is held, the 
employee is entitled to a written decision on the following issues:
    (i) The determination of the Agency concerning the existence or 
amount of the debt; and
    (ii) The repayment schedule, if it was not established by written 
agreement between the employee and the Agency.
    (b) Exceptions to entitlement to notice, hearing, written response 
and final decision. The procedural requirements of paragraph (a) of this 
section are not applicable to any adjustment of pay arising out of an 
employee's election of coverage or a change in coverage under a Federal 
benefits program (such as health insurance) requiring periodic 
deductions from pay, if the amount to be recovered was accumulated over 
four pay periods or less. However, if the amount to be recovered was 
accumulated over more than four pay periods the full procedures 
prescribed under paragraph (d) of this section will be extended to the 
employee.
    (c) Notification before deductions begin. Except as provided in 
paragraph (b) of this section, deductions will not be made unless the 
employee is first provided with a minimum of 30 calendar days written 
notice. Notice will be sent by certified mail (return receipt 
requested), and must include the following:
    (1) The Agency's determination that a debt is owed, including the 
origin, nature, and amount of the debt;
    (2) The Agency's intention to collect the debt by means of 
deductions from the employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date and duration of 
the intended deductions. (The proposed beginning date for salary offset 
cannot be earlier than 30 days after the date of notice, unless this 
would compromise the Government's ultimate ability to resolve the debt);
    (4) An explanation of the requirements concerning interest, penalty 
and administrative costs;
    (5) The employee's right to inspect and copy all records relating to 
the debt or to request and receive a copy of such records;
    (6) If not previously provided, the employee's right to enter into a 
written agreement for a repayment schedule differing from that proposed 
by the Agency where the terms of the proposed repayment schedule are 
acceptable to the Agency. (Such an agreement must be in writing and 
signed by

[[Page 190]]

both the employee and the appropriate EPA official and will be included 
in the employee's personnel file and documented in the EPA payroll 
system);
    (7) The right to a hearing conducted by a hearing official not under 
the control of the Administrator, if a request is filed;
    (8) The method and time for requesting a hearing;
    (9) That the filing of a request for hearing within 15 days of 
receipt of the original notification will stay the assessment of 
interest, penalty and administrative costs and the commencement of 
collection proceedings;
    (10) That a final decision on the hearing (if requested) will be 
issued at the earliest practical date, but no later than 60 days after 
the filing of the request, unless the employee requests and the hearing 
official grants a delay in the proceedings;
    (11) That knowingly false or frivolous statements, representations 
or evidence may subject the employee to--
    (i) Disciplinary procedures under 5 U.S.C. chapter 75 or any other 
applicable statutes or regulations;
    (ii) Criminal penalties under 18 U.S.C. 286, 287, 1001 and 1002 or 
other applicable statutory authority; or
    (iii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or 
any other applicable statutory authority;
    (12) Any other rights and remedies available under statutes or 
regulations governing the program for which the collection is being 
made; and
    (13) That amounts paid or deducted for the debt, except 
administrative costs and penalty charges where the entire debt is not 
waived or terminated, which are later waived or found not owed to the 
United States will be promptly refunded to the employee.
    (d) Request for hearing. An employee may request a hearing by filing 
a written request directly with the Director, Financial Management 
Division (PM-226F), U.S. Environmental Protection Agency, 401 M Street 
SW., Washington, DC 20460. The request must state the bases upon which 
the employee disputes the proposed collection of the debt. The request 
must be signed by the employee and be received by EPA within 15 days of 
the employee's receipt of the notification of proposed deductions. The 
employee should submit in writing all facts, evidence and witnesses 
which support his/her position to the Director, Financial Management 
Division, within 15 days of the date of the request for a hearing. The 
Director, Financial Management Division, will arrange for the services 
of a hearing official not under the control of the Administrator and 
will provide the hearing official with all documents relating to the 
claim.
    (e) Requests for hearing made after time expires. Late requests for 
a hearing may be accepted if the employee can show that the delay in 
filing the request for a hearing was due to circumstances beyond the 
employee's control.
    (f) Form of hearing, written response and final decision. (1) 
Normally, a hearing will consist of the hearing official making a 
decision based upon a review of the claims file and any materials 
submitted by the debtor. However, in instances where the hearing 
official determines that the validity of the debt turns on an issue of 
veracity or credibility which cannot be resolved through review of 
documentary evidence, the hearing official at his discretion may afford 
the debtor an opportunity for an oral hearing. Such oral hearings will 
consist of an informal conference before a hearing official in which the 
employee and the Agency will be given the opportunity to present 
evidence, witnesses and argument. If desired, the employee may be 
represented by an individual of his/her choice. The Agency shall 
maintain a summary record of oral hearings provided under these 
procedures.
    (2) Written decisions provided after a request for hearing will, at 
a minimum, state the facts evidencing the nature and origin of the 
alleged debt; and the hearing official's analysis, findings and 
conclusions.
    (3) The decision of the hearing official is final and binding on the 
parties.
    (g) Request for waiver. In certain instances, an employee may have a 
statutory right to request a waiver of overpayment of pay or allowances, 
e.g., 5 U.S.C. 5584 or 5 U.S.C. 5724(i). When an employee requests 
waiver consideration under a right authorized by statute, further 
collection on the debt will

[[Page 191]]

be suspended until a final administrative decision is made on the waiver 
request. However, where it appears that the Government's ability to 
recover the debt may be adversely affected because of the employee's 
resignation, termination or other action, suspension of recovery is not 
required. During the period of the suspension, interest, penalty charges 
and administrative costs will not be assessed against the debt. The 
Agency will not duplicate, for purposes of salary offset, any of the 
procedures already provided the debtor under a request for waiver.
    (h) Method and source of collection. A debt will be collected in a 
lump-sum or by installment deductions at established pay intervals from 
an employee's current pay account, unless the employee and the Agency 
agree to alternative arrangements for payment. The alternative payment 
schedule must be in writing, signed by both the employee and the 
Administrator and will be documented in the Agency's files.
    (i) Limitation on amount of deduction. The size and frequency of 
installment deductions generally will bear a reasonable relation to the 
size of the debt and the employee's ability to pay. However, the amount 
deducted for any period may not exceed 15 percent of the disposable pay 
from which the deduction is made, unless the employee has agreed in 
writing to the deduction of a greater amount. If possible, the 
installment payments will be in amounts sufficient to liquidate the debt 
in three years or less. Installment payments of less than $25 normally 
will be accepted only in the most unusual circumstances.
    (j) Duration of deduction. If the employee is financially unable to 
pay a debt in a lump-sum or the amount of the debt exceeds 15 percent of 
disposable pay, collection will be made in installments. Installment 
deductions will be made over the period of active duty or employment 
except as provided in paragraph (a)(1) of this section.
    (k) When deductions may begin. (1) Deductions to liquidate an 
employee's debt will begin on the date stated in the Agency's notice of 
intention to collect from the employee's current pay unless the debt has 
been repaid or the employee has filed a timely request for hearing on 
issues for which a hearing is appropriate.
    (2) If the employee has filed a timely request for hearing with the 
Agency, deductions will begin after the hearing official has provided 
the employee with a final written decision indicating the amount owed 
the Government. Following the decision by the hearing official, the 
employee will be given 30 days to repay the amount owed prior to 
collection through salary offset, unless otherwise provided by the 
hearing official.
    (l) Liquidation from final check. If the employee retires, resigns, 
or the period of employment ends before collection of the debt is 
completed, the remainder of the debt will be offset from subsequent 
payments of any nature due the employee (e.g., final salary payment, 
lump-sum leave, etc.).
    (m) Recovery from other payments due a separated employee. If the 
debt cannot be liquidated by offset from any final payment due the 
employee on the date of separation, EPA will liquidate the debt, where 
appropriate, by administrative offset from later payments of any kind 
due the former employee (e.g., retirement pay). Such administrative 
offset will be taken in accordance with the procedures set forth in 
Sec. 13.20.
    (n) Employees who transfer to another Federal agency. If an EPA 
employee transfers to another Federal agency prior to repaying a debt 
owed to EPA, the following action will be taken:
    (1) The appropriate debt-claim form specified by the Office of 
Personnel Management (OPM) will be completed and certified to the new 
paying office by EPA. EPA will certify: That the employee owes a debt; 
the amount and the basis for the debt; the date on which payment is due; 
the date the Government's rights to collect the debt first accrued; and 
that EPA's regulations implementing 5 U.S.C. 5514 have been approved by 
OPM.
    (2) The new paying agency will be advised of the amount which has 
already been collected, the number of installments and the commencement 
date for the first installment, if other than the next officially 
established pay period. EPA will also identify to the new paying agency 
the actions it has taken and the dates of such actions.

[[Page 192]]

    (3) EPA will place or will arrange to have placed in the employee's 
official personnel file the information required by paragraphs (n) (1) 
and (2) of this section.
    (4) Upon receipt of the official personnel file from EPA, the new 
paying agency will resume collection from the employee's current pay 
account and will notify both the employee and EPA of the resumption.
    (o) Interest, penalty and administrative cost. EPA will assess 
interest and administrative costs on debts collected under these 
procedures. The following guidelines apply to the assessment of these 
costs on debts collected by salary offset:
    (1) A processing and handling charge will be assessed on debts 
collected through salary offset under this section. Where offset begun 
prior to the employee's receipt of the 30-day written notice of the 
proposed offset, processing and handling costs will only be assessed 
after the expiration of the 30-day notice period and after the 
completion of any hearing requested under paragraph (d) of this section 
or waiver consideration under paragraph (g) of this section.
    (2) Interest will be assessed on all debts not collected within 30 
days of either the date of the notice where the employee has not 
requested a hearing within the allotted time, completion of a hearing 
pursuant to paragraph (d) of this section, or completion of waiver 
consideration under paragraph (g) of this section, whichever is later. 
Interest will continue to accrue during the period of the recovery.
    (3) Deductions by salary offset normally begin prior to the time for 
assessment of a penalty. Therefore, a penalty charge will not be 
assessed unless deductions occur more than 120 days from the date of 
notice to the debtor and penalty assessments have not been suspended 
because of waiver consideration by EPA.
    (p) Non-waiver of right by payment. An employee's payment under 
protest of all or any portion of a debt does not waive any rights which 
the employee may have under either these procedures or any other 
provision of law.
    (q) Refunds. EPA will promptly refund to the employee amounts paid 
or deducted pursuant to this section, the recovery of which is 
subsequently waived or otherwise found not owing to the United States. 
Refunds do not bear interest unless specifically authorized by law.
    (r) Time limit for commencing recovery by salary setoff. EPA will 
not initiate salary offset to collect a debt more than 10 years after 
the Government's right to collect the debt first accrued, unless facts 
material to the right to collect the debt were not known and could not 
have been known through the exercise of reasonable care by the 
Government official responsible for discovering and collecting such 
debts.



Sec. 13.23  Salary offset when EPA is not the creditor agency.

    The requirements below apply when EPA has been requested to collect 
a debt owed by an EPA employee to another Federal agency.
    (a) Format for the request for recovery. (1) The creditor agency 
must complete fully the appropriate claim form specified by OPM.
    (2) The creditor agency must certify to EPA on the debt claim form: 
The fact that the employee owes a debt; the date that the debt first 
accrued; and that the creditor agency's regulations implementing 5 
U.S.C. 5514 have been approved by OPM and send it to the Director, 
Financial Management Division (PM-226F), U.S. Environmental Protection 
Agency, 401 M Street SW., Washington, DC 20460.
    (3) If the collection is to be made in installments, the creditor 
agency must also advise EPA of the number of installments to be 
collected, the amount of each installment, and the commencement date of 
the first installment, if a date other than the next established pay 
period.
    (4) Unless the employee has consented in writing to the salary 
deductions or signed a statement acknowledging receipt of the required 
procedures and this information is attached to the claim form, the 
creditor agency must indicate the actions it took under its procedures 
for salary offset and the dates of such actions.
    (b) Processing of the claim by EPA--(1) Incomplete claims. If EPA 
receives an improperly completed claim form, the

[[Page 193]]

claim form and all accompanying material will be returned to the 
requesting (creditor) agency with notice that OPM procedures must be 
followed and a properly completed claim form must be received before any 
salary offset can be taken. The notice should identify specifically what 
is needed from the requesting agency for the claim to be processed.
    (2) Complete claims. If the claim procedures in paragraph (a) of 
this section have been properly completed, deduction will begin on the 
next established pay period. EPA will not review the merits of the 
creditor agency's determinations with respect to the amount or validity 
of the debt as stated in the debt claim form. EPA will not assess a 
handling or any other related charge to cover the cost of its processing 
the claim.
    (c) Employees separating from EPA before a debt to another agency is 
collected--(1) Employees separating from Government service. If an 
employee begins separation action before EPA collects the total debt due 
the creditor agency, the following actions will be taken:
    (i) To the extent possible, the balance owed the creditor agency 
will be liquidated from subsequent payments of any nature due the 
employee from EPA in accordance with Sec. 13.22(1);
    (ii) If the total amount of the debt cannot be recovered, EPA will 
certify to the creditor agency and the employee the total amount of 
EPA's collection; and
    (iii) If EPA is aware that the employee is entitled to payments from 
the Civil Service Retirement and Disability Fund or other similar 
payments, it will forward a copy of the claim form to the agency 
responsible for making such payments as notice that a debt is 
outstanding. EPA will also send a copy of the claim form to the creditor 
agency so that it can file a certified claim against the payments.
    (2) Employees who transfer to another Federal agency. If an EPA 
employee transfers to another Federal agency before EPA collects the 
total amount due the creditor agency, the following actions will be 
taken:
    (i) EPA will certify the total amount of the collection made on the 
debt; and
    (ii) The employee's official personnel folder will be sent to the 
new paying agency. (It is the responsibility of the creditor agency to 
ensure that the collection is resumed by the new paying agency.)



                     Subpart D--Compromise of Debts



Sec. 13.24  General.

    EPA may compromise claims for money or property where the claim, 
exclusive of interest, penalty and administrative costs, does not exceed 
$20,000. Where the claim exceeds $20,000, the authority to accept the 
compromise rests solely with DOJ. The Administrator may reject an offer 
of compromise in any amount. Where the claim exceeds $20,000 and EPA 
recommends acceptance of a compromise offer, it will refer the claim 
with its recommendation to DOJ for approval. The referral will be in the 
form of the Claims Collection Litigation Report (CCLR) and will outline 
the basis for EPA's recommendation. EPA refers compromise offers for 
claims in excess of $100,000 to the Commercial Litigation Branch, Civil 
Division, Department of Justice, Washington, DC 20530, unless otherwise 
provided by Department of Justice delegations or procedures. EPA refers 
offers of compromise for claims of $20,000 to $100,000 to the United 
States Attorney in whose judicial district the debtor can be found. If 
the Administrator has a debtor's firm written offer for compromise which 
is substantial in amount but the Administrator is uncertain as to 
whether the offer should be accepted, he may refer the offer and the 
supporting data to DOJ or GAO for action.



Sec. 13.25  Standards for compromise.

    (a) EPA may compromise a claim pursuant to this section if EPA 
cannot collect the full amount because the debtor does not have the 
financial ability to pay the full amount of the debt within a reasonable 
time, or the debtor refuses to pay the claim in full and the Government 
does not have the ability to enforce collection in full within a 
reasonable time by enforced collection proceedings. In evaluating the 
acceptability of the offer, the Administrator

[[Page 194]]

may consider, among other factors, the following:
    (1) Individual debtors. (i) Age and health of the debtor;
    (ii) Present and potential income;
    (iii) Inheritance prospects;
    (iv) The possibility that assets have been concealed or improperly 
transferred by the debtor;
    (v) The availability of assets or income which may be realized by 
enforced collection proceedings; or
    (vi) The applicable exemptions available to the debtor under State 
and Federal law in determining the Government's ability to enforce 
collection.
    (2) Municipal and quasi-municipal debtors. (i) The size of the 
municipality or quasi-municipal entity;
    (ii) The availability of current and future resources sufficient to 
pay the debt (e.g., bonding authority, rate adjustment authority, or 
taxing authority); or
    (iii) The ratio of liabilities (both short and long term) to assets.
    (3) Commercial debtors. (i) Ratio of assets to liabilities;
    (ii) Prospects of future income or losses; or
    (iii) The availability of assets or income which may be realized by 
enforced collection proceedings.
    (b) EPA may compromise a claim, or recommend acceptance of a 
compromise to DOJ, where there is substantial doubt concerning the 
Government's ability to prove its case in court for the full amount of 
the claim, either because of the legal issues involved or a bona fide 
dispute as to the facts. The amount accepted in compromise in such cases 
will fairly reflect the probability of prevailing on the legal issues 
involved, considering fully the availability of witnesses and other 
evidentiary data required to support the Government's claim. In 
determining the litigative risks involved, EPA will give proportionate 
weight to the likely amount of court costs and attorney fees the 
Government may incur if it is unsuccessful in litigation.
    (c) EPA may compromise a claim, or recommend acceptance of a 
compromise to DOJ, if the cost of collection does not justify the 
enforced collection of the full amount of the debt. The amount accepted 
in compromise in such cases may reflect an appropriate discount for the 
administrative and litigative costs of collection, taking into 
consideration the time it will take to effect collection. Costs of 
collection may be a substantial factor in the settlement of small 
claims, but normally will not carry great weight in the settlement of 
large claims. In determining whether the cost of collection justifies 
enforced collection of the full amount, EPA may consider the positive 
effect that enforced collection of the claim may have on the collection 
of other similar claims.
    (d) Statutory penalties, forfeitures or debts established as an aid 
to enforcement and to compel compliance may be compromised where the 
Administrator determines that the Agency's enforcement policy, in terms 
of deterrence and securing compliance (both present and future), will be 
adequately served by accepting the offer.



Sec. 13.26  Payment of compromised claims.

    The Administrator normally will not approve a debtor's request to 
pay a compromised claim in installments. However, where the 
Administrator determines that payment of a compromise by installments is 
necessary to effect collection, a debtor's request to pay in 
installments may be approved. Normally, where installment repayment is 
approved, the debtor will be required to execute a confess-judgment 
agreement which accelerates payment of the balance due upon default.



Sec. 13.27  Joint and several liability.

    When two or more debtors are jointly and severally liable, 
collection action will not be withheld against one debtor until the 
other or others pay their proportionate share. The amount of a 
compromise with one debtor is not precedent in determining compromises 
from other debtors who have been determined to be jointly and severally 
liable on the claim.



Sec. 13.28  Execution of releases.

    Upon receipt of full payment of a claim or the amount compromised, 
EPA will prepare and execute a release on behalf of the United States. 
The release will include a provision which

[[Page 195]]

voids the release if it was procured by fraud, misrepresentation, a 
false claim or by mutual mistake of fact.



               Subpart E--Suspension of Collection Action



Sec. 13.29  Suspension--general.

    The Administrator may suspend the Agency's collection actions on a 
debt where the outstanding debt principal does not exceed $20,000, the 
Government cannot presently collect or enforce collection of any 
significant sum from the debtor, the prospects of future collection 
justify retention of the debt for periodic review and there is no risk 
of expiration of the statute of limitations during the period of 
suspension. Additionally, the Administrator may waive the assessment of 
interest, penalty charges and administrative costs during the period of 
the suspension. Suspension will be for an established time period and 
generally will be reviewed at least every six months to ensure the 
continued propriety of the suspension. DOJ approval is required to 
suspend debts exceeding $20,000. Unless otherwise provided by DOJ 
delegations or procedures, the Administrator refers requests for 
suspension of debts of $20,000 to $100,000 to the United States Attorney 
in whose district the debtor resides. Debts exceeding $100,000 are 
referred to the Commercial Litigation Branch, Civil Division, Department 
of Justice, for approval.



Sec. 13.30  Standards for suspension.

    (a) Inability to locate debtor. The Administrator may suspend 
collection on a debt where he determines that the debtor cannot be 
located presently but that there is a reasonable belief that the debtor 
can be located in the future.
    (b) Financial condition of debtor. The Administrator may suspend 
collection action on a claim when the debtor owns no substantial equity 
in real or personal property and is unable to make payment on the claim 
or effect a compromise but the debtor's future financial prospects 
justify retention of the claim for periodic review, provided that:
    (1) The applicable statute of limitations will not expire during the 
period of the suspension, can be tolled or has started running anew;
    (2) Future collection can be effected by offset, notwithstanding the 
10-year statute of limitations for administrative offsets; or
    (3) The debtor agrees to pay interest on the debt and suspension is 
likely to enhance the debtor's ability to fully pay the principal amount 
of the debt with interest at a later date.
    (c) Request for waiver or administrative review--mandatory. The 
Administrator will suspend collection activity where a statute provides 
for mandatory waiver consideration or administrative review prior to 
agency collection of a debt. The Administrator will suspend EPA's 
collection actions during the period provided for the debtor to request 
review or waiver and during the period of the Agency's evaluation of the 
request.
    (d) Request for waiver or administrative review--permissive. The 
Administrator may suspend collection activities on debts of $20,000 or 
less during the pendency of a permissive waiver or administrative review 
where he determines that:
    (1) There is a reasonable possibility that waiver will be granted 
and the debtor may be found not owing the debt (in whole or in part);
    (2) The Government's interest is protected, if suspension is 
granted, by the reasonable assurance that the debt can be recovered if 
the debtor does not prevail; or
    (3) Collection of the debt will cause undue hardship to the debtor.
    (e) Refund barred by statute or regulation. The Administrator will 
ordinarily suspend collection action during the pendency of his 
consideration of a waiver request or administrative review where statute 
and regulation preclude refund of amounts collected by the Agency should 
the debtor prevail. The Administrator may decline to suspend collection 
where he determines that the request for waiver or administrative review 
is frivolous or was made primarily to delay collection.

[[Page 196]]



                     Subpart F--Termination of Debts



Sec. 13.31  Termination--general.

    The Administrator may terminate collection actions and write-off 
debts, including accrued interest, penalty and administrative costs, 
where the debt principal does not exceed $20,000. If the debt exceeds 
$20,000, EPA obtains the approval of DOJ in order to terminate further 
collection actions. Unless otherwise provided for by DOJ regulations or 
procedures, requests to terminate collection on debts in excess of 
$100,000 are referred to the Commercial Litigation Branch, Civil 
Division, Department of Justice, for approval. Debts in excess of 
$20,000 but $100,000 or less are referred to the United States Attorney 
in whose judicial district the debtor can be found.



Sec. 13.32  Standards for termination.

    A debt may be terminated where the Administrator determines that:
    (a) The Government cannot collect or enforce collection of any 
significant sum from the debtor, having due regard for available 
judicial remedies, the debtor's ability to pay, and the exemptions 
available to the debtor under State and Federal law;
    (b) The debtor cannot be located, there is no security remaining to 
be liquidated, the applicable statute of limitations has expired, and 
the prospects of collecting by offset are too remote to justify 
retention of the claim;
    (c) The cost of further collection action is likely to exceed the 
amount recoverable;
    (d) The claim is determined to be legally without merit; or
    (e) The evidence necessary to prove the claim cannot be produced or 
the necessary witnesses are unavailable and efforts to induce voluntary 
payment have failed.



                          Subpart G--Referrals



Sec. 13.33  Referrals to the Department of Justice.

    (a) Prompt referral. The Administrator refers to DOJ for litigation 
all claims on which aggressive collection actions have been taken but 
which could not be collected, compromised, suspended or terminated. 
Referrals are made as early as possible, consistent with aggressive 
agency collection action, and within the period for bringing a timely 
suit against the debtor.
    (1) Unless otherwise provided by DOJ regulations or procedures, EPA 
refers for litigation debts of more than $100,000 to the Commercial 
Litigation Branch, Civil Division, Department of Justice, Washington, DC 
20530.
    (2) Unless otherwise provided by DOJ regulations or procedures, EPA 
refers for litigation debts of $100,000 or less to the United States 
Attorney in whose judicial district the debtor can be found.
    (b) Claims Collection Litigation Report (CCLR). Unless an exception 
has been granted by DOJ, the CCLR is used for referrals of all 
administratively uncollectible claims to DOJ and is used to refer all 
offers of compromise.



        Supbart H--Referral of Debts to IRS for Tax Refund Offset

    Source: 59 FR 651, Jan. 5, 1994, unless otherwise noted.



Sec. 13.34  Purpose.

    This subpart establishes procedures for the Environmental Protection 
Agency (EPA) to refer past-due debts to the Internal Revenue Service 
(IRS) for offset against the income tax refunds of persons owing debts 
to EPA. It specifies the Agency procedures and the rights of the debtor 
applicable to claims for the payment of debts owed to EPA.



Sec. 13.35  Applicability and scope.

    (a) This subpart implements 31 U.S.C. 3720A, which authorizes the 
IRS to reduce a tax refund by the amount of a past-due legally 
enforceable debt owed to the United States.
    (b) For purposes of this section, a past-due legally enforceable 
debt referable to the IRS is a debt which is owed to the United States 
and:
    (1) Except in the case of a judgment debt, has been delinquent for 
at least three months but has not been delinquent for more than ten 
years at the time the offset is made;
    (2) Cannot be currently collected pursuant to the salary offset 
provisions of 5 U.S.C. 5514(a)(1);

[[Page 197]]

    (3) Is ineligible for administrative offset under 31 U.S.C. 3716(a) 
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by 
administrative offset under 31 U.S.C. 3716(a) by the Agency against 
amounts payable to or on behalf of the debtor by or on behalf of the 
Agency;
    (4) With respect to which EPA has given the taxpayer at least 60 
days from the date of notification to present evidence that all or part 
of the debt is not past-due or not legally enforceable, has considered 
evidence presented by such taxpayer, if any, and has determined that an 
amount of such debt is past-due and legally enforceable;
    (5) Has been disclosed by EPA to a consumer reporting agency as 
authorized by 31 U.S.C. 3711(f), unless a consumer reporting agency 
would be prohibited from using such information by 15 U.S.C. 1681c, or 
unless the amount of the debt does not exceed $100.00;
    (6) With respect to which EPA has notified or has made a reasonable 
attempt to notify the taxpayer that the debt is past-due and, unless 
repaid within 60 days thereafter, the debt will be referred to the IRS 
for offset against any overpayment of tax;
    (7) Is at least $25.00; and
    (8) All other requirements of 31 U.S.C. 3720A and the Department of 
the Treasury regulations at 26 CFR 301.6402-6 relating to the 
eligibility of a debt for tax return offset have been satisfied.



Sec. 13.36  Administrative charges.

    In accordance with Sec. 13.11, all administrative charges incurred 
in connection with the referral of a debt to the IRS shall be assessed 
on the debt and thus increase the amount of the offset.



Sec. 13.37  Notice requirement before offset.

    A request for reduction of an IRS tax refund will be made only after 
EPA makes a determination that an amount is owed and past-due and 
provides the debtor with 60 days written notice. EPA's notice of 
intention to collect by IRS tax refund offset (Notice of Intent) will 
state:
    (a) The amount of the debt;
    (b) That unless the debt is repaid within 60 days from the date of 
EPA's Notice of Intent, EPA intends to collect the debt by requesting 
the IRS to reduce any amounts payable to the debtor as refunds of 
Federal taxes paid by an amount equal to the amount of the debt and all 
accumulated interest and other charges;
    (c) That the debtor has a right to present evidence that all or part 
of the debt is not past-due or not legally enforceable; and
    (d) A mailing address for forwarding any written correspondence and 
a contact name and phone number for any questions.



Sec. 13.38  Review within the Agency.

    (a) Notification by debtor. A debtor who receives a Notice of Intent 
has the right to present evidence that all or part of the debt is not 
past-due or not legally enforceable. To exercise this right, the debtor 
must:
    (1) Send a written request for a review of the evidence to the 
address provided in the notice;
    (2) State in the request the amount disputed and the reasons why the 
debtor believes that the debt is not past-due or is not legally 
enforceable; and
    (3) Include in the request any documents which the debtor wishes to 
be considered or state that additional information will be submitted 
within the remainder of the 60-day period.
    (b) Submission of evidence. The debtor may submit evidence showing 
that all or part of the debt is not past-due or not legally enforceable 
along with the notification required by paragraph (a) of this section. 
Failure to submit the notification and evidence within 60 days will 
result in an automatic referral of the debt to the IRS without further 
action by EPA.
    (c) Review of the evidence. EPA will consider all available evidence 
related to the debt. Within 30 days, if feasible, EPA will notify the 
debtor whether EPA has sustained, amended, or cancelled its 
determination that the debt is past-due and legally enforceable.



Sec. 13.39  Agency determination.

    (a) Following review of the evidence, EPA will issue a written 
decision.
    (b) If EPA either sustains or amends its determination, it shall 
notify the debtor of its intent to refer the debt to the IRS for offset 
against the debtor's

[[Page 198]]

Federal income tax refund. If EPA cancels its original determination, 
the debt will not be referred to IRS.



Sec. 13.40  Stay of offset.

    If the debtor timely notifies the EPA that he or she is exercising 
the right described in Sec. 13.38(a) and timely submits evidence in 
accordance with Sec. 13.38(b), any notice to the IRS will be stayed 
until the issuance of a written decision which sustains or amends its 
original determination.



PART 14--EMPLOYEE PERSONAL PROPERTY CLAIMS--Table of Contents




Sec.
14.1  Scope and purpose.
14.2  Definitions.
14.3  Incident to service.
14.4  Reasonable and proper.
14.5  Who may file a claim.
14.6  Time limits for filing a claim.
14.7  Where to file a claim.
14.8  Investigation of claims.
14.9  Approval and payment of claims.
14.10  Procedures for reconsideration.
14.11  Principal types of allowable claims.
14.12  Principal types of unallowable claims.
14.13  Items fraudulently claimed.
14.14  Computation of award.

    Authority: Military Personnel and Civilian Employees' Claims Act of 
1964, as amended (31 U.S.C. 3721).

    Source: 51 FR 24146, July 2, 1986, unless otherwise noted.



Sec. 14.1  Scope and purpose.

    This part prescribes regulations for the Military Personnel and 
Civilian Employees' Claims Act of 1964 (the Act), 31 U.S.C. 3721. The 
Act allows the Administrator of the U.S. Environmental Protection Agency 
(EPA) to settle and pay claims of EPA employees for damage to or loss of 
their personal property which was incident to service. A claim under the 
Act is allowed only where the claim is substantiated and the 
Administrator determines that possession of the property was reasonable 
or proper under the circumstances existing at the time and place of the 
loss and no part of the loss was caused by any negligent or wrongful act 
or omission of the employee or his/her agent.



Sec. 14.2  Definitions.

    As used in this part:
    (a) EPA Claims Officer is the Agency official delegated the 
responsibility by the Administrator to carry out the provisions of the 
Act.
    (b) Claim means a demand for payment by an employee or his/her 
representative for the value or the repair cost of an item of personal 
property damaged, lost or destroyed as an incident to government 
service.
    (c) Employee means a person appointed to a position with EPA.
    (d) Settle means the act of considering, ascertaining, adjusting, 
determining or otherwise resolving a claim.
    (e) Accrual date means the date of the incident causing the loss or 
damage or the date on which the loss or damage should have been 
discovered by the employee through the exercise of reasonable care.
    (f) Depreciation is the reduction in value of an item caused by the 
elapse of time between the date of acquisition and the date of loss or 
damage.



Sec. 14.3  Incident to service.

    In order for a claim to be allowed under this part, the EPA Claims 
Officer must determine that the item of personal property, at the time 
of damage or loss, was used by the employee as an incident to government 
service. An item is incident to service when possession of the item by 
the employee had substantial relationship to the employee's performance 
of duty. Whether an item is incident to service is determined by the 
facts of each claim. The employee has the burden of showing that the 
item was incident to his/her governmental service.



Sec. 14.4  Reasonable and proper.

    EPA does not insure its employees from every loss or damage to 
personal property they may sustain. In order for a claim to be allowed, 
the item must not only have been incident to service, it must also have 
been reasonable and proper for the employee to possess the item at the 
time and place of its loss or damage. Generally, the possession of an 
item is reasonable and proper when the item is of a type and quantity 
which EPA reasonably expected its employees to possess at the time and

[[Page 199]]

place of the loss or damage. Consequently, items which are exceptionally 
expensive, excessive quantities of otherwise allowable items, personal 
items which are used in place of items usually provided to employees by 
EPA or items which are primarily of aesthetic value are not considered 
reasonable or proper items and are unallowable.



Sec. 14.5  Who may file a claim.

    A claim may be filed by an employee or by his/her authorized agent 
or legal representative. If a claim is otherwise allowable under this 
part, a claim can be filed by a surviving spouse, child, parent, brother 
or sister of a deceased employee.



Sec. 14.6  Time limits for filing a claim.

    A claim under this part is considered by the EPA Claims Officer only 
if it is in writing and received within two years after the claim 
accrues. The EPA Claims Officer may consider a claim not filed within 
this period when the claim accrued during a period of armed conflict and 
the requirements of 31 U.S.C. 3721(g) are met.



Sec. 14.7  Where to file a claim.

    An employee or his/her representative may file a claim with his/her 
Administrative Office or the Safety Office for the facility. The 
employee should complete and submit to the Administrative Office or the 
Safety Office a completed EPA Form 3370-1, ``Employee Claim for Loss of 
or Damage to Personal Property.'' That Office then forwards the form and 
any other relevant information to the EPA Claims Officer, Office of 
General Counsel (LE-132G), 401 M Street SW., Washington, DC 20460.



Sec. 14.8  Investigation of claims.

    The EPA Claims Officer investigates claims filed under this part. 
The EPA Claims Officer may request additional documentation from an 
employee (e.g., repair estimates and receipts), interview witnesses, and 
conduct any further investigation he believes is warranted by the facts 
of the claim.



Sec. 14.9  Approval and payment of claims.

    (a) EPA's approval and payment of a claim is limited by the Act to 
$25,000. The EPA Claims Officer considers, adjusts, determines, 
compromises and settles all claims filed under this part. The decision 
of the EPA Claims Officer is final unless reconsideration under 
Sec. 14.10 is granted.
    (b) The EPA Claims Officer will approve and pay claims filed for a 
deceased employee by persons specified in Sec. 14.5 in the following 
order:

(1) The spouse's claim.
(2) A child's claim.
(3) A parent's claim.
(4) A brother's or sister's claim.



Sec. 14.10  Procedures for reconsideration.

    The EPA Claims Officer, at his discretion, may reconsider a decision 
when the employee establishes that an error was made in the computation 
of the award or that evidence or material facts were unavailable to the 
employee at the time of the filing of the claim and the failure to 
provide the information was not the result of the employee's lack of 
care. An employee seeking reconsideration of a decision must file, 
within 30 days of the date of the decision, a written request with the 
EPA Claims Officer for reconsideration. The request for reconsideration 
must specify, where applicable, the error, the evidence or material 
facts not previously considered by the EPA Claims Officer and the reason 
why the employee believes that the evidence or facts previously were not 
available.



Sec. 14.11  Principal types of allowable claims.

    (a) General. A claim under this part is allowed for tangible 
personal property of a type and quantity that was reasonable and proper 
for the employee to possess under the circumstances at the time of the 
loss or damage. In evaluating whether a claim is allowable, the EPA 
Claims Officer may consider such factors as: The employee's use of the 
item; whether EPA generally is aware that such items are used by its 
employees; or whether the loss was caused by a failure of EPA to provide 
adequate protection against the loss.

[[Page 200]]

    (b) Examples of claims which are allowable. Claims which are 
ordinarily allowed include loss or damage which occurred:
    (1) In a place officially designated for storage of property such as 
a warehouse, office, garage, or other storage place;
    (2) In a marine, rail, aircraft, or other common disaster or natural 
disaster such as a fire, flood, or hurricane;
    (3) When the personal property was subjected to an extraordinary 
risk in the employee's performance of duty, such as in connection with 
an emergency situation, a civil disturbance, common or natural disaster, 
or during efforts to save government property or human life;
    (4) When the property was used for the benefit of the government at 
the specific direction of a supervisor;
    (5) When the property was money or other valuables deposited with an 
authorized government agent for safekeeping; and
    (6) When the property was a vehicle which was subjected to an 
extraordinary risk in the employee's performance of duty and the use of 
the vehicle was at the specific direction of the employee's supervisor.
    (c) Claims for articles of clothing. Claims for loss or damage to 
clothing and accessories worn by an employee may be allowed where:
    (1) The damage or loss occurred during the employee's performance of 
official duty in an unusual or extraordinary risk situation;
    (2) The loss or damage occurred during the employee's response to an 
emergency situation, to a natural disaster such as fire, flood, 
hurricane, or to a man-made disaster such as a chemical spill;
    (3) The loss or damage was caused by faulty or defective equipment 
or furniture maintained by EPA; or
    (4) The item was stolen even though the employee took reasonable 
precautions to protect the item from theft.
    (d) Claims for loss or damage to household items. (1) Claims for 
damages to household goods may be allowed where:
    (i) The loss or damages occurred while the goods were being shipped 
pursuant to an EPA authorized change in duty station;
    (ii) The employee filed a claim for the damages with the appropriate 
carrier; and
    (iii) The employee substantiates that he/she has suffered a loss in 
excess of the amount paid by the carrier.
    (2) Where a carrier has refused to make an award to an employee 
because of his/her failure to comply with the carrier's claims 
procedures, any award by EPA will be reduced by the maximum amount 
payable for the item by the carrier under its contract of shipment. 
Where an employee fails to notify the carrier of damages or loss, either 
at the time of delivery of the household goods or within a reasonable 
time after discovery, any award by EPA will be reduced by the amount of 
the carrier's maximum contractual liability for the damage or loss. The 
employee has the burden of proving his/her entitlement to reimbursement 
from EPA for amounts in excess of that allowed by the carrier.



Sec. 14.12  Principal types of unallowable claims.

    Claims that ordinarily will not be allowed include:
    (a) Loss or damage totaling less than $25;
    (b) Money or currency, except when deposited with an authorized 
government agency for safekeeping;
    (c) Loss or damage to an item of extraordinary value or to an 
antique where the item was shipped with household goods, unless the 
employee filed a valid appraisal or authentication with the carrier 
prior to shipment of the item;
    (d) Loss of bankbooks, checks, notes, stock certifications, money 
orders, or travelers checks;
    (e) Property owned by the United States unless the employee is 
financially responsible for it to another government agency;
    (f) Claims for loss or damage to a bicycle or a private motor 
vehicle, unless allowable under Sec. 14.11(b)(6);
    (g) Losses of insurers or subrogees;
    (h) Losses recoverable from insurers or carriers;
    (i) Losses recovered or recoverable pursuant to contract;

[[Page 201]]

    (j) Claims for damage or loss caused, in whole or in part, by the 
negligent or wrongful acts of the employee or his/her agent;
    (k) Property used for personal business or profit;
    (l) Theft from the possession of the employee unless the employee 
took reasonable precautions to protect the item from theft;
    (m) Property acquired, possessed or transported in violation of law 
or regulations;
    (n) Unserviceable property; or
    (o) Damage or loss to an item during shipment of household goods 
where the damage or loss was caused by the employee's negligence in 
packing the item.



Sec. 14.13  Items fraudulently claimed.

    Where the EPA Claims Officer determines that an employee has 
intentionally misrepresented the cost, condition, cost of repair or a 
material fact concerning a claim, he/she may, at his discretion, deny 
the entire amount claimed for the item. Further, where the EPA Claims 
Officer determines that the employee intentionally has materially 
misrepresented the costs, conditions or nature of repairs of the claim, 
he will refer it to appropriate officials (e.g., Inspector General, the 
employee's supervisor, etc.) for action.



Sec. 14.14  Computation of award.

    (a) The amount awarded on any item may not exceed its adjusted cost. 
Adjusted cost is either the purchase price of the item or its value at 
the time of acquisition, less appropriate depreciation. The amount 
normally payable for property damaged beyond economical repair is its 
depreciated value immediately before the loss or damage, less any 
salvage value. If the cost of repair is less than the depreciated value, 
it will be considered to be economically repairable and only the cost of 
repair will be allowable.
    (b) Notwithstanding a contract to the contrary, the representative 
of an employee is limited by 31 U.S.C. 3721(i) to receipt of not more 
than 10 percent of the amount of an award under this part for services 
related to the claim. A person violating this paragraph is subject to a 
fine of not more than $1,000. 31 U.S.C. 3721(i).



PART 16--IMPLEMENTATION OF PRIVACY ACT OF 1974--Table of Contents




Sec.
16.1  Purpose and scope.
16.2  Definitions.
16.3  Procedures for requests pertaining to individual records in a 
          record system.
16.4  Times, places, and requirements for identification of individuals 
          making requests.
16.5  Disclosure of requested information to individuals.
16.6  Special procedures: Medical records.
16.7  Request for correction or amendment of record.
16.8  Initial determination on request for correction or amendment of 
          record.
16.9  Appeal of initial adverse agency determination on request for 
          correction or amendment.
16.10  Disclosure of record to person other than the individual to whom 
          it pertains.
16.11  Fees.
16.12  Penalties.
16.13  General exemptions.
16.14  Specific exemptions.

    Authority: 5 U.S.C. 552a.

    Source: 40 FR 53582, Nov. 19, 1975, unless otherwise noted.



Sec. 16.1   Purpose and scope.

    (a) This part sets forth the Environmental Protection Agency 
procedures under the Privacy Act of 1974 as required by 5 U.S.C. 
552a(f).
    (b) These procedures describe how an individual may request 
notification of whether EPA maintains a record pertaining to him or her 
in any of its systems of records, request access to the record or to an 
accounting of its disclosure, request that the record be amended or 
corrected, and appeal an initial adverse determination concerning any 
such request.
    (c) These procedures apply only to requests by individuals and only 
to records maintained by EPA, excluding those systems specifically 
exempt under Sec. Sec. 16.13 and 16.14 and those determined as 
government-wide and published by the Civil Service Commission in 5 CFR 
parts 293 and 297.



Sec. 16.2   Definitions.

    As used in this part:

[[Page 202]]

    (a) The terms individual, maintain, record, system of records, and 
routine use shall have the meaning given them by 5 U.S.C. 552a (a)(2), 
(a)(3), (a)(4), (a)(5) and (a)(7), respectively.
    (b) EPA means the Environmental Protection Agency.
    (c) Working days means calendar days excluding Saturdays, Sundays, 
and legal public holidays.



Sec. 16.3   Procedures for requests pertaining to individual records in a record system.

    Any individual who wishes to have EPA inform him or her whether a 
system of records maintained by EPA contains any record pertaining to 
him or her which is retrieved by name or personal identifier, or who 
wishes to request access to any such record, shall submit a written 
request in accordance with the instructions set forth in EPA's annual 
notice of systems for that system of records. This request shall 
include:
    (a) The name of the individual making the request;
    (b) The name of the system of records (as set forth in the EPA 
notice of systems) to which the request relates;
    (c) Any other information which the system notice indicates should 
be included; and
    (d) If the request is for access, a statement as to whether a 
personal inspection or a copy by mail is desired.



Sec. 16.4   Times, places, and requirements for identification of individuals making requests.

    (a) If an individual submitting a request for access under Sec. 16.3 
has asked that EPA authorize a personal inspection of records, and EPA 
has granted the request, he or she may present himself or herself at the 
time and place specified in EPA's response or arrange another time with 
the appropriate agency official.
    (b) Prior to inspection of records, an individual shall present 
sufficient identification (e.g., driver's license, employee 
identification card, social security card, credit card) to establish 
that he or she is the individual to whom the records pertain. An 
individual who is unable to provide such identification shall complete 
and sign, in the presence of an agency official, a statement declaring 
his or her identity and stipulating that he or she understands it is a 
misdemeanor punishable by fine up to $5,000 to knowingly and willfully 
seek or obtain access to records about another individual under false 
pretenses.
    (c) If an individual, having requested personal inspection of his or 
her records, wishes to have another person accompany him or her during 
inspection, he or she shall submit a written statement authorizing 
disclosure in the presence of the other person(s).
    (d) An individual who has made a personal inspection of records may 
then request copies of those records. Such requests may be granted, but 
fees may be charged in accordance with Sec. 16.11.
    (e) If an individual submitting a request under Sec. 16.3 wishes to 
have copies furnished by mail, he or she must include with the request 
sufficient data to allow EPA to verify his or her identity. Should 
sensitivity of the records warrant it, EPA may require a requester to 
submit a signed and notarized statement indicating that he or she is the 
individual to whom the records pertain and that he or she understands it 
is a misdemeanor punishable by fine up to $5,000 to knowingly and 
willfully seek or obtain access to records about another individual 
under false pretenses. Such mail requests may be granted, but fees may 
be charged in accordance with Sec. 16.11.
    (f) No verification of identity will be required where the records 
sought are publicly available under the Freedom of Information Act, as 
EPA procedures under 40 CFR part 2 will then apply.



Sec. 16.5   Disclosure of requested information to individuals.

    (a) Each request received will be acted upon promptly.
    (b) Within 10 working days of receipt of a request, the system 
manager shall acknowledge the request. Whenever practicable, the 
acknowledgment will indicate whether or not access will be granted and, 
if so, when and where. When access is to be granted, it shall be 
provided within 30 working days of first receipt. If the agency is 
unable to meet this deadline, the records system manager shall so inform 
the requester

[[Page 203]]

stating reasons for the delay and an estimate of when access will be 
granted.
    (c) If a request pursuant to Sec. 16.3 for access to a record is in 
a system of records which is exempted, the records system manager will 
determine whether the information will nonetheless be made available. If 
the determination is to deny access, the reason for denial and the 
appeal procedure will be given to the requester.
    (d) Any person whose request is initially denied may appeal that 
denial to the Privacy Act Officer, who shall make an appeal 
determination within 10 working days.
    (e) If the appeal under paragraph (d) of this section is denied, the 
requester may bring a civil action under 5 U.S.C. 552a(g) to seek review 
of the denial.



Sec. 16.6   Special procedures: Medical records.

    Should EPA receive a request for access to medical records 
(including psychological records) disclosure of which the system manager 
determines would be harmful to the individual to whom they relate, EPA 
may refuse to disclose the records directly to the individual and 
instead offer to transmit them to a physician designated by the 
individual.



Sec. 16.7   Request for correction or amendment of record.

    (a) An individual may request correction or amendment of any record 
pertaining to him or her in a system of records maintained by EPA by 
submitting to the system manager, in writing, the following:
    (1) The name of the individual making the request;
    (2) The name of the system, as described in the notice of systems;
    (3) A description of the nature and substance of the correction or 
amendment request; and
    (4) Any additional information specified in the system notice.
    (b) Any person submitting a request under this section shall include 
sufficient information in support of that request to allow EPA to apply 
the standards set forth in 5 U.S.C. 552a (e)(1) and (e)(5).
    (c) Any person whose request is denied may appeal that denial to the 
Privacy Act Officer.
    (d) In the event that appeal is denied, the requester may bring a 
civil action to seek review of the denial, under 5 U.S.C. 552a(g).



Sec. 16.8   Initial determination on request for correction or amendment of record.

    (a) Within 10 working days of receipt of a request for amendment or 
correction, the system manager shall acknowledge the request, and 
promptly either:
    (1) Make any correction, deletion, or addition which the requester 
believes should be made; or
    (2) Inform the requester of his or her refusal to correct or amend 
the record, the reason for refusal, and the procedures for appeal.
    (b) If the system manager is unable to comply with the preceding 
paragraphs within 30 working days of his or her receipt of a request, he 
or she will inform the requester of that fact, the reasons, and an 
estimate of when a determination will be reached.
    (c) In conducting the review of the request, the system manager will 
be guided by the requirements of 5 U.S.C. 552a (e)(1) and (e)(5).
    (d) If the system manager determines to grant all or any portion of 
the request, he or she will:
    (1) Advise the individual of that determination;
    (2) Make the correction or amendment; and
    (3) So inform any person or agency outside EPA to whom the record 
has been disclosed, and, where an accounting of that disclosure is 
maintained in accordance with 5 U.S.C. 552a(c), note the occurrence and 
substance of the correction or amendment in the accounting.
    (e) If the system manager determines not to grant all or any portion 
of a request for correction or amendment, he or she will:
    (1) Comply with paragraph (d)(3) of this section (if necessary);
    (2) Advise the individual of the determination and its basis;
    (3) Inform the individual that an appeal may be made; and
    (4) Describe the procedures for making the appeal.

[[Page 204]]

    (f) If EPA receives from another Federal agency a notice of 
correction or amendment of information furnished by that agency and 
contained in one of EPA's systems of records, the system manager shall 
advise the individual and make the correction as if EPA had originally 
made the correction or amendment.



Sec. 16.9   Appeal of initial adverse agency determination on request for correction or amendment.

    (a) Any individual whose request for correction or amendment is 
initially denied by EPA and who wishes to appeal may do so by letter to 
the Privacy Act Officer. The appeal shall contain a description of the 
initial request sufficient to identify it.
    (b) The Privacy Act Officer shall make a final determination not 
later than 30 working days from the date on which the individual 
requests the review, unless, for good cause shown, the Privacy Act 
Officer extends the 30-day period and notifies the requester. Such 
extension will be utilized only in exceptional circumstances.
    (c) In conducting the review of an appeal, the Privacy Act Officer 
will be guided by the requirements of 5 U.S.C. 552a (e)(1) and (e)(5).
    (d) If the Privacy Act Officer determines to grant all or any 
portion of an appeal he or she shall so inform the requester and EPA 
shall make the correction or amendment and comply with Sec. 16.8(d)(3).
    (e) If the Privacy Act Officer determines not to grant all or any 
portion of an appeal he or she shall inform the requester:
    (1) Of the determination and its basis;
    (2) Of the requester's right to file a concise statement of reasons 
for disagreeing with EPA's decision;
    (3) Of the procedures for filing such statement of disagreement;
    (4) That such statements of disagreements will be made available in 
subsequent disclosures of the record, together with an agency statement 
(if deemed appropriate) summarizing its refusal;
    (5) That prior recipients of the disputed record will be provided 
with statements as in paragraph (e)(4) of this section, to the extent 
that an accounting of disclosures is maintained under 5 U.S.C. 552a(c); 
and
    (6) Of the requester's right to seek judicial review under 5 U.S.C. 
552a(g).



Sec. 16.10   Disclosure of record to person other than the individual to whom it pertains.

    EPA shall not disclose any record which is contained in a system of 
records it maintains except pursuant to a written request by, or with 
the written consent of, the individual to whom the record pertains, 
unless the disclosure is authorized by one or more of the provisions of 
5 U.S.C. 552a(b).



Sec. 16.11   Fees.

    No fees shall be charged for providing the first copy of a record or 
any portion to an individual to whom the record pertains. The fee 
schedule for reproducing other records is the same as that set forth in 
40 CFR 2.120.



Sec. 16.12   Penalties.

    The Act provides, in pertinent part:
    ``Any person who knowingly and willfully requests or obtains any 
record concerning an individual from an agency under false pretenses 
shall be guilty of a misdemeanor and fined not more than $5,000.'' (5 
U.S.C. 552a(i)(3).)



Sec. 16.13  General exemptions.

    (a) Systems of records affected.

    para. EPA-4 OIG Criminal Investigative Index and Files--EPA/OIG.
    para. EPA-17 NEIC Criminal Investigative Index and Files--EPA/NEIC/
OCI.

    (b) Authority. Under 5 U.S.C. 552a(j)(2), the head of any agency may 
by rule exempt any system of records within the agency from certain 
provisions of the Privacy Act of 1974, if the system of records is 
maintained by an agency or component thereof which performs as its 
principal function any activity pertaining to the enforcement of 
criminal laws and which consists of:
    (1) Information compiled for the purpose of identifying individual 
criminal offenders and alleged offenders and consisting only of 
identifying data and notations of arrests, the nature and

[[Page 205]]

disposition of criminal charges, sentencing, confinement, release, and 
parole and probation status;
    (2) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; or
    (3) Reports identifiable to an individual compiled at any stage of 
the process of enforcement of the criminal laws from arrest or 
indictment through release from supervision.
    (c) Scope of exemption. (1) The EPA-4 system of records identified 
in Sec. 16.13(a) is maintained by the Office of Investigations of the 
Office of Inspector General (OIG), a component of EPA which performs as 
its principal function activities pertaining to the enforcement of 
criminal laws. Authority for the criminal law enforcement activities of 
the OIG's Office of Investigations is the Inspector General Act of 1978, 
5 U.S.C. app.
    (2) The EPA-17 system of records identified in Sec. 16.13(a) is 
maintained by the Office of Criminal Investigations (OCI) of the 
National Enforcement Investigations Center (NEIC), a component of EPA 
which performs as its principal function activities pertaining to the 
enforcement of criminal laws. Authority for the criminal law enforcement 
activities of the NEIC's Office of Criminal Investigations is 28 U.S.C. 
533, with appointment letter from Benjamin Civiletti, Attorney General, 
to Douglas Costle, Administrator, EPA, dated January 16, 1981.
    (3) The systems of records identified in Sec. 16.13(a) are exempted 
from the following provisions of the Privacy Act of 1974: 5 U.S.C. 
552a(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), (H), and (I), (5), 
and (8); (f); and (g).
    (4) To the extent that the exemption claimed under 5 U.S.C. 
552a(j)(2) is held to be invalid for the systems of records identified 
in Sec. 16.13(a), then an exemption under 5 U.S.C. 552a(k)(2) is claimed 
for these systems of records.
    (d) Reasons for exemption. The systems of records identified in 
Sec. 16.13(a) are exempted from the above provisions of the Privacy Act 
of 1974 for the following reasons:
    (1) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of 
each disclosure of records available to the individual named in the 
record at his request. These accountings must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Accounting for each disclosure would alert the subjects 
of an investigation to the existence of the investigation and the fact 
that they are subjects of the investigation. The release of such 
information to the subjects of an investigation would provide them with 
significant information concerning the nature of the investigation, and 
could seriously impede or compromise the investigation, endanger the 
physical safety of confidential sources, witnesses, law enforcement 
personnel and their families, and lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony.
    (2) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or 
other agency about any correction or notation of dispute made by the 
agency in accordance with subsection (d) of the Act. Since EPA is 
claiming that these systems of records are exempt from subsection (d) of 
the Act, concerning access to records, this section is inapplicable and 
is exempted to the extent that these systems of records are exempted 
from subsection (d) of the Act.
    (3) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him, to request amendment to such 
records, to request a review of an agency decision not to amend such 
records, and to contest the information contained in such records. 
Granting access to records in these systems of records could inform the 
subject of an investigation of an actual or potential criminal violation 
of the existence of that investigation, of the nature and scope of the 
information and evidence obtained as to his activities, of the identity 
of confidential sources, witnesses, and law enforcement personnel, and 
could provide information to enable the subject to avoid detection or 
apprehension. Granting access to such information could seriously impede 
or compromise an investigation, endanger the physical safety of 
confidential sources, witnesses, law enforcement personnel and

[[Page 206]]

their families, lead to the improper influencing of witnesses, the 
destruction of evidence, or the fabrication of testimony, and disclose 
investigative techniques and procedures. In addition, granting access to 
such information could disclose classified, security-sensitive, or 
confidential business information and could constitute an unwarranted 
invasion of the personal privacy of others.
    (4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the President. The application of this provision 
could impair investigations and law enforcement, because it is not 
always possible to detect the relevance or necessity of specific 
information in the early stages of an investigation. Relevance and 
necessity are often questions of judgment and timing, and it is only 
after the information is evaluated that the relevance and necessity of 
such information can be established. In addition, during the course of 
the investigation, the investigator may obtain information which is 
incidental to the main purpose of the investigation but which may relate 
to matters under the investigative jurisdiction of another agency. Such 
information cannot readily be segregated. Furthermore, during the course 
of the investigation, the investigator may obtain information concerning 
the violation of laws other than those which are within the scope of his 
jurisdiction. In the interest of effective law enforcement, the EPA 
investigators should retain this information, since it can aid in 
establishing patterns of criminal activity and can provide valuable 
leads for other law enforcement agencies.
    (5) 5 U.S.C. 552a(e)(2) requires an agency to collect information to 
the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs. 
The application of this provision could impair investigations and law 
enforcement by alerting the subject of an investigation of the existence 
of the investigation, enabling the subject to avoid detection or 
apprehension, to influence witnesses improperly, to destroy evidence, or 
to fabricate testimony. Moreover, in certain circumstances the subject 
of an investigation cannot be required to provide information to 
investigators, and information must be collected from other sources. 
Furthermore, it is often necessary to collect information from sources 
other than the subject of the investigation to verify the accuracy of 
the evidence collected.
    (6) 5 U.S.C. 552a(e)(3) requires an agency to inform each person 
whom it asks to supply information, on a form that can be retained by 
the person, of the authority under which the information is sought and 
whether disclosure is mandatory or voluntary; of the principal purposes 
for which the information is intended to be used; of the routine uses 
which may be made of the information; and of the effects on the person, 
if any, of not providing all or any part of the requested information. 
The application of this provision could provide the subject of an 
investigation with substantial information about the nature of that 
investigation, which could interfere with the investigation. Moreover, 
providing such a notice to the subject of an investigation could 
seriously impede or compromise on undercover investigation by revealing 
its existence and could endanger the physical safety of confidential 
sources, witnesses, and investigators by revealing their identities.
    (7) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his request if the system of records contains a record 
pertaining to him, how he can gain access to such a record, and how he 
can contest its content. Since EPA is claiming that these systems of 
records are exempt from subsection (f) of the Act, concerning agency 
rules, and subsection (d) of the Act, concerning access to records, 
these requirements are inapplicable and are exempted to the extent that 
these systems of records are exempted from subsections (f) and (d) of 
the Act. Although EPA is claiming exemption

[[Page 207]]

from these requirements, EPA has published such a notice concerning its 
notification, access, and contest procedures because, under certain 
circumstances, EPA might decide it is appropriate for an individual to 
have access to all or a portion of his records in these systems of 
records.
    (8) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to protect 
the confidentiality of the sources of information, to protect the 
privacy and physical safety of confidential sources and witnesses, and 
to avoid the disclosure of investigative techniques and procedures. 
Although EPA is claiming exemption from this requirement, EPA has 
published such a notice in broad generic terms in the belief that this 
is all subsection (e)(4)(I) of the Act requires.
    (9) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in making any 
determination about the individual. Since the Act defines maintain to 
include the collection of information, complying with this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In 
collecting information for criminal law enforcement purposes, it is not 
possible to determine in advance what information is accurate, relevant, 
timely, and complete. Facts are first gathered and then placed into a 
logical order to prove or disprove objectively the criminal behavior of 
an individual. Material which may seem unrelated, irrelevant, or 
incomplete when collected may take on added meaning or significance as 
the investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigative report, 
thereby impeding effective law enforcement.
    (10) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record. Complying 
with this provision could prematurely reveal an ongoing criminal 
investigation to the subject of the investigation.
    (11) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby on an individual can be 
notified in response to his request if any system of records named by 
the individual contains a record pertaining to him. The application of 
this provision could impede or compromise an investigation or 
prosecution if the subject of an investigation was able to use such 
rules to learn of the existence of an investigation before it could be 
completed. In addition, mere notice of the fact of an investigation 
could inform the subject or others that their activities are under or 
may become the subject of an investigation and could enable the subjects 
to avoid detection or apprehension, to influence witnesses improperly, 
to destroy evidence, or to fabricate testimony. Since EPA is claiming 
that these systems of records are exempt from subsection (d) of the Act, 
concerning access to records, the requirements of subsections (f)(2) 
through (5) of the Act, concerning agency rules for obtaining access to 
such records, are inapplicable and are exempted to the extent that these 
systems of records are exempted from subsection (d) of the Act. Although 
EPA is claiming exemption from the requirements of subsection (f) of the 
Act, EPA has promulgated rules which establish Agency procedures 
because, under certain circumstances, it might be appropriate for an 
individual to have access to all or a portion of his records in these 
systems of records. These procedures are described elsewhere in this 
part.
    (12) 5 U.S.C. 552a(g) provides for civil remedies if an agency fails 
to comply with the requirements concerning access to records under 
subsections (d)(1) and (3) of the Act; maintenance of records under 
subsection (e)(5) of the Act; and any other provision of the Act, or any 
rule promulgated thereunder, in such a way as to have an adverse effect 
on an individual. Since EPA is claiming that these systems of records 
are exempt from subsections (c)(3) and (4), (d), (e)(1), (2), (3), 
(4)(G),

[[Page 208]]

(H), and (I), (5), and (8), and (f) of the Act, the provisions of 
subsection (g) of the Act are inapplicable and are exempted to the 
extent that these systems of records are exempted from those subsections 
of the Act.
    (e) Exempt records provided by another agency. Individuals may not 
have access to records maintained by the EPA if such records were 
provided by another agency which has determined by regulation that such 
records are subject to general exemption under 5 U.S.C. 552a(j). If an 
individual requests access to such exempt records, EPA will consult with 
the source agency.
    (f) Exempt records included in a nonexempt system of records. All 
records obtained from a system of records which has been determined by 
regulation to be subject to general exemption under 5 U.S.C. 552a(j) 
retain their exempt status even if such records are also included in a 
system of records for which a general exemption has not been claimed.

[51 FR 24146, July 2, 1986]



Sec. 16.14  Specific exemptions.

    (a) Exemptions under 5 U.S.C. 552a(k)(2)--(1) Systems of records 
affected.

    para. EPA-2 General Personnel Records--EPA.
    para. EPA-4 OIG Criminal Investigative Index and Files--EPA/OIG.
    para. EPA-5 OIG Personnel Security Files--EPA/OIG.
    para. EPA-17 NEIC Criminal Investigative Index and Files-- EPA/NEIC/
OCI.
    para. EPA-30 OIG Hotline Allegation System--EPA/OIG.

    (2) Authority.  Under 5 U.S.C. 552a(k)(2), the head of any agency 
may by rule exempt any system of records within the agency from certain 
provisions of the Privacy Act of 1974, if the system of records is 
investigatory material compiled for law enforcement purposes, other than 
material within the scope of subsection (j)(2).
    (3) Scope of exemption. (i) The systems of records identified in 
Sec. 16.14(a)(1) are exempted from the following provisions of the 
Privacy Act of 1974, subject to the limitations set forth in 5 U.S.C. 
552a(k)(2): 5 U.S.C. 552a (c)(3); (d); (e)(1), (4)(G), (H), and (I); and 
(f).
    (ii) An individual is denied any right, privilege, or benefit that 
he would otherwise be entitled by Federal law, or for which he would 
otherwise be eligible, as a result of the maintenance of such material, 
only if the Agency actually uses the material in denying or proposing to 
deny such right, privilege, or benefit.
    (iii) To the extent that records contained in the systems of records 
identified in Sec. 16.14(a)(1) are maintained by the Office of 
Investigations of the OIG or by the Office of Criminal Investigations of 
the NEIC, components of EPA which perform as their principal function 
activities pertaining to the enforcement of criminal laws, then an 
exemption under 5 U.S.C. 552a(j)(2) is claimed for these records.
    (4) Reasons for exemption. The systems of records identified in 
Sec. 16.14(a)(1) are exempted from the above provisions of the Privacy 
Act of 1974 for the following reasons:
    (i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of 
each disclosure of records available to the individual named in the 
record at his request. These accountings must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Accounting for each disclosure would alert the subjects 
of an investigation to the existence of the investigation and the fact 
that they are subjects of the investigation. The release of such 
information to the subjects of an investigation would provide them with 
significant information concerning the nature of the investigation, and 
could seriously impede or compromise the investigation, endanger the 
physical safety of confidential sources, witnesses, law enforcement 
personnel and their families, and lead to the improper influencing of 
witnesses, the destruction of evidence, or the fabrication of testimony.
    (ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him, to request amendment to such 
records, to request a review of an agency decision not to amend such 
records, and to contest the information contained in such records. 
Granting access to records in these systems of records could inform the 
subject of an investigation of an actual or potential criminal violation 
of the existence of that investigation,

[[Page 209]]

of the nature and scope of the information and evidence obtained as to 
his activities, of the identity of confidential sources, witnesses, and 
law enforcement personnel, and could provide information to enable the 
subject to avoid detection or apprehension. Granting access to such 
information could seriously impede or compromise an investigation, 
endanger the physical safety of confidential sources, witnesses, law 
enforcement personnel and their families, lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony, and disclose investigative techniques and 
procedures. In addition, granting access to such information could 
disclose classified, security-sensitive, or confidential business 
information and could constitute an unwarranted invasion of the personal 
privacy of others.
    (iii) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the President. The application of this provision 
could impair investigations and law enforcement, because it is not 
always possible to detect the relevance or necessity of specific 
information in the early stages of an investigation. Relevance and 
necessity are often questions of judgment and timing, and it is only 
after the information is evaluated that the relevance and necessity of 
such information can be established. In addition, during the course of 
the investigation, the investigator may obtain information which is 
incidental to the main purpose of the investigation but which may relate 
to matters under the investigative jurisdiction of another agency. Such 
information cannot readily be segregated. Furthermore, during the course 
of the investigation, the investigator may obtain information concerning 
the violation of laws other than those which are within the scope of his 
jurisdiction. In the interest of effective law enforcement, EPA 
investigators should retain this information, since it can aid in 
establishing patterns of criminal activity and can provide valuable 
leads for other law enforcement agencies.
    (iv) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his request if the system of records contains a record 
pertaining to him, how he can gain access to such a record, and how he 
can contest its content. Since EPA is claiming that these systems of 
records are exempt from subsection (f) of the Act, concerning agency 
rules, and subsection (d) of the Act, concerning access to records, 
these requirements are inapplicable and are exempted to the extent that 
these systems of records are exempted from subsections (f) and (d) of 
the Act. Although EPA is claiming exemption from these requirements, EPA 
has published such a notice concerning its notification, access, and 
contest procedures because, under certain circumstances, EPA might 
decide it is appropriate for an individual to have access to all or a 
portion of his records in these systems of records.
    (v) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to protect 
the confidentiality of the sources of information, to protect the 
privacy and physical safety of confidential sources and witnesses, and 
to avoid the disclosure of investigative techniques and procedures. 
Although EPA is claiming exemption from this requirement, EPA has 
published such a notice in broad generic terms in the belief that this 
is all subsection (e)(4)(I) of the Act requires.
    (vi) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his request if any system of records named by the 
individual contains a record pertaining to him. The application of this 
provision could impede or compromise an investigation or prosecution if 
the subject of an investigation was able to use such rules to learn of 
the existence of an investigation before it could be completed. In 
addition, mere notice of the fact of an investigation could inform the 
subject or others that their activities are under or may become the 
subject of an investigation

[[Page 210]]

and could enable the subjects to avoid detection or apprehension, to 
influence witnesses improperly, to destroy evidence, or to fabricate 
testimony. Since EPA is claiming that these systems of records are 
exempt from subsection (d) of the Act, concerning access to records, the 
requirements of subsections (f)(2) through (5) of the Act, concerning 
agency rules for obtaining access to such records, are inapplicable and 
are exempted to the extent that these systems of records are exempted 
from subsection (d) of the Act. Although EPA is claiming exemption from 
the requirements of subsection (f), EPA has promulgated rules which 
establish Agency procedures because, under certain circumstances, it 
might be appropriate for an individual to have access to all or a 
portion of his records in these systems of records. These procedures are 
described elsewhere in this part.
    (b) Exemption under 5 U.S.C. 552a(k)(5)--(1) Systems of records 
affected.

    para. EPA-2 General Personnel Records--EPA.
    para. EPA-4 OIG Criminal Investigative Index and Files--EPA/OIG.
    para. EPA-5 OIG Personnel Security Files--EPA/OIG.

    (2) Authority. Under 5 U.S.C. 552a(k)(5), the head of any agency may 
by rule exempt any system of records within the agency from certain 
provisions of the Privacy Act of 1974, if the system of records is 
investigatory material compiled solely for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, Federal contracts, or access to classified information, but 
only to the extent that the disclosure of such material would reveal the 
identity of a source who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence, or, prior to September 27, 1975, under an implied promise 
that the identity would be held in confidence.
    (3) Scope of exemption. (i) The systems of records identified in 
Sec. 16.14(b)(1) are exempted from the following provisions of the 
Privacy Act of 1974, subject to the limitations of 5 U.S.C. 552a(k)(5): 
5 U.S.C. 552a (c)(3); (d); (e)(1), (4)(H) and (I); and (f)(2) through 
(5).
    (ii) To the extent that records contained in the systems of records 
identified in Sec. 16.14(b)(1) reveal a violation or potential violation 
of law, then an exemption under 5 U.S.C. 552a(k)(2) is also claimed for 
these records.
    (4) Reasons for exemption. The systems of records identified in 
Sec. 16.14(b)(1) are exempted from the above provisions of the Privacy 
Act of 1974 for the following reasons:
    (i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of 
each disclosure of records available to the individual named in the 
record at his request. These accountings must state the date, nature, 
and purpose of each disclosure of a record and the name and address of 
the recipient. Making such an accounting could cause the identity of a 
confidential source to be revealed, endangering the physical safety of 
the confidential source, and could impair the future ability of the EPA 
to compile investigatory material for the purpose of determining 
suitability, eligibility, or qualifications for Federal civilian 
employment, Federal contracts, or access to classified information.
    (ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him, to request amendment to such 
records, to request a review of an agency decision not to amend such 
records, and to contest the information contained in such records. 
Granting such access could cause the identity of a confidential source 
to be revealed, endangering the physical safety of the confidential 
source, and could impair the future ability of the EPA to compile 
investigatory material for the purpose of determining suitability, 
eligibility, or qualifications for Federal civilian employment, Federal 
contracts, or access to classified information.
    (iii) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the President. The application of this provision 
could impair investigations, because it is not always possible to detect 
the relevance or necessity of specific information in the early stages 
of

[[Page 211]]

an investigation. Relevance and necessity are often questions of 
judgment and timing, and it is only after the information is evaluated 
that the relevance and necessity of such information can be established.
    (iv) 5 U.S.C. 552a(e)(4)(H) requires an agency to publish a Federal 
Register notice concerning its procedures for notifying an individual at 
his request how he can gain access to any record pertaining to him and 
how he can contest its content. Since EPA is claiming that these systems 
of records are exempt from subsections (f)(2) through (5) of the Act, 
concerning agency rules, and subsection (b) of the Act, concerning 
access to records, these requirements are inapplicable and are exempted 
to the extent that these systems of records are exempted from 
subsections (f)(2) through (5) and (d) of the Act. Although EPA is 
claiming exemption from these requirements, EPA has published such a 
notice concerning its access and contest procedures because, under 
certain circumstances, EPA might decide it is appropriate for an 
individual to have access to all or a portion of his records in these 
systems of records.
    (v) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to protect 
the confidentiality of the sources of information, to protect the 
privacy and physical safety of confidential sources, and to avoid the 
disclosure of investigative techniques and procedures. Although EPA is 
claiming exemption from this requirement, EPA has published such a 
notice in broad generic terms in the belief that this is all subsection 
(e)(4)(I) of the Act requires.
    (vi) 5 U.S.C. 552a(f)(2) through (5) require an agency to promulgate 
rules for obtaining access to records. Since EPA is claiming that these 
systems of records are exempt from subsection (d) of the Act, concerning 
access to records, the requirements of subsections (f)(2) through (5) of 
the Act, concerning agency rules for obtaining access to such records, 
are inapplicable and are exempted to the extent that this system of 
records is exempted from subsection (d) of the Act. Although EPA is 
claiming exemption from the requirements of subsections (f)(2) through 
(5) of the Act, EPA has promulgated rules which establish Agency 
procedures because, under certain circumstances, it might be appropriate 
for an individual to have access to all or a portion of his records in 
this system of records. These procedures are described elsewhere in this 
part.
    (c) Exemption under 5 U.S.C. 552a(k)(1)--(1) System of records 
affected.

    para. EPA-5 OIG Personnel Security Files--EPA/OIG.

    (2) Authority. Under 5 U.S.C. 552a(k)(1), the head of any agency may 
by rule exempt any system of records within the agency from certain 
provisions of the Privacy Act of 1974, if the system of records is 
subject to the provisions of 5 U.S.C. 552(b)(1). A system of records is 
subject to the provisions of 5 U.S.C. 552(b)(1) if it contains records 
that are specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and are in fact properly classified pursuant to such 
Executive order. Executive Order 12356 establishes criteria for 
classifying records which are to be kept secret in the interest of 
national defense or foreign policy.
    (3) Scope of exemption. To the extent that the system of records 
identified in Sec. 16.14(c)(1) contains records provided by other 
Federal agencies that are specifically authorized under criteria 
established by Executive Order 12356 to be kept secret in the interest 
of national defense or foreign policy and are in fact properly 
classified by other Federal agencies pursuant to that Executive order, 
the system of records is exempted from the following provisions of the 
Privacy Act of 1974: 5 U.S.C. 552a (c)(3); (d); (e)(1), (4)(G), (H), and 
(I); and (f).
    (4) Reasons for exemption. The system of records identified in 
Sec. 16.14(c)(1) is exempted from the above provisions of the Privacy 
Act of 1974 for the following reasons:
    (i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of 
each disclosure of records available to the individual named in the 
record at his

[[Page 212]]

request. These accountings must state the date, nature, and purpose of 
each disclosure of a record and the name and address of the recipient. 
Making such an accounting could result in the release of properly 
classified information, which would compromise the national defense or 
disrupt foreign policy.
    (ii) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him, to request amendment to such 
records, to request a review of an agency decision not to amend such 
records, and to contest the information contained in such records. 
Granting such access could cause the release of properly classified 
information, which would compromise the national defense or disrupt 
foreign policy.
    (iii) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the President. The application of this provision 
could impair personnel security investigations which use properly 
classified information, because it is not always possible to know the 
relevance or necessity of specific information in the early stages of an 
investigation. Relevance and necessity are often questions of judgment 
and timing, and it is only after the information is evaluated that the 
relevance and necessity of such information can be established.
    (iv) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual at his request if the system of records contains a record 
pertaining to him, how he can gain access to such a record, and how he 
can contest its content. Since EPA is claiming that this system of 
records is exempt from subsection (f) of the Act, concerning agency 
rules, and subsection (d) of the Act, concerning access to records, 
these requirements are inapplicable and are exempted to the extent that 
this system of records is exempted from subsections (f) and (d) of the 
Act. Although EPA is claiming exemption from these requirements, EPA has 
published such a notice concerning its notification, access, and contest 
procedures because, under certain circumstances, EPA might decide it is 
appropriate for an individual to have access to all or a portion of his 
records in this system of records.
    (v) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to prevent 
the release of properly classified information, which would compromise 
the national defense or disrupt foreign policy. Although EPA is claiming 
exemption from this requirement, EPA has published such a notice in 
broad generic terms in the belief that this is all subsection (e)(4)(I) 
of the Act requires.
    (vi) 5 U.S.C. 552(a)(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his request if any system of records named by the 
individual contains a record pertaining to him. The application of this 
provision could result in the release of properly classified 
information, which would compromise the national defense or disrupt 
foreign policy. Since EPA is claiming that this system of records is 
exempt from subsection (d) of the Act, concerning access to records, the 
requirements of subsections (f)(2) through (5) of the Act, concerning 
agency rules for obtaining access to such records, are inapplicable and 
are exempted to the extent that this system of records is exempted from 
subsection (d) of the Act. Although EPA is claiming exemption from the 
requirements of subsection (f) of the Act, EPA has promulgated rules 
which establish Agency procedures because, under certain circumstances, 
it might be appropriate for an individual to have access to all or a 
portion of his records in this system of records. These procedures are 
described elsewhere in this part.
    (d) Exempt records provided by another agency. Individuals may not 
have access to records maintained by the EPA if such records were 
provided by another agency which has determined by regulation that such 
records are subject to general exemption under 5 U.S.C. 552a(j) or 
specific exemption under 5 U.S.C. 552a(k). If an individual

[[Page 213]]

requests access to such exempt records, EPA will consult with the source 
agency.
    (e) Exempt records included in a nonexempt system of records. All 
records obtained from a system of records which has been determined by 
regulation to be subject to specific exemption under 5 U.S.C. 552a(k) 
retain their exempt status even if such records are also included in a 
system of records for which a specific exemption has not been claimed.

[51 FR 24147, July 2, 1986, as amended at 59 FR 17485, Apr. 13, 1994]



PART 17--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN EPA ADMINISTRATIVE PROCEEDINGS--Table of Contents




                      Subpart A--General Provisions

Sec.
17.1  Purpose of these rules.
17.2  Definitions.
17.3  Proceedings covered.
17.4  Applicability to EPA proceedings.
17.5  Eligibility of applicants.
17.6  Standards for awards.
17.7  Allowable fees and other expenses.
17.8  Delegation of authority.

             Subpart B--Information Required From Applicants

17.11  Contents of application.
17.12  Net worth exhibit.
17.13  Documentation of fees and expenses.
17.14  Time for submission of application.

           Subpart C--Procedures for Considering Applications

17.21  Filing and service of documents.
17.22  Answer to application.
17.23  Comments by other parties.
17.24  Settlement.
17.25  Extensions of time and further proceedings.
17.26  Decision on application.
17.27  Agency review.
17.28  Judicial review.
17.29  Payment of award.

    Authority: Section 504, Title 5 U.S.C., as amended by sec. 
203(a)(1), Equal Access to Justice Act (Title 2 of Pub. L. 96-481, 94 
Stat. 2323).

    Source: 48 FR 39936, Sept. 2, 1983, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 17.1  Purpose of these rules.

    These rules are adopted by EPA pursuant to section 504 of title 5 
U.S.C., as added by section 203(a)(1) of the Equal Access to Justice 
Act, Public Law No. 96-481. Under the Act, an eligible party may receive 
an award for attorney's fees and other expenses when it prevails over 
EPA in an adversary adjudication before EPA unless EPA's position as a 
party to the proceeding was substantially justified or special 
circumstances make an award unjust. The purpose of these rules is to 
establish procedures for the submission and consideration of 
applications for awards against EPA when the underlying decision is not 
reviewed by a court.



Sec. 17.2  Definitions.

    As used in this part:
    (a) The Act means section 504 of title 5 U.S.C., as amended by 
section 203(a)(1) of the Equal Access to Justice Act, Public Law No. 96-
481.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency.
    (c) Adversary adjudication means an adjudication required by statute 
to be held pursuant to 5 U.S.C. 554 in which the position of the United 
States is represented by counsel or otherwise, but excludes an 
adjudication for the purpose of granting or renewing a license.
    (d) EPA means the Environmental Protection Agency, an Agency of the 
United States.
    (e) Presiding officer means the official, without regard to whether 
he is designated as an administrative law judge or a hearing officer or 
examiner, who presides at the adversary adjudication.
    (f) Proceeding means an adversary adjudication as defined in 
Sec. 17.2(b).



Sec. 17.3  Proceedings covered.

    (a) These rules apply to adversary adjudications required by statute 
to be conducted by EPA under 5 U.S.C. 554. To the extent that they are 
adversary adjudications, the proceedings conducted by EPA to which these 
rules apply include:
    (1) A hearing to consider the assessment of a noncompliance penalty 
under

[[Page 214]]

section 120 of the Clean Air Act as amended (42 U.S.C. 7420);
    (2) A hearing to consider the termination of an individual National 
Pollution Discharge Elimination System permit under section 402 of the 
Clean Water Act as amended (33 U.S.C. 1342);
    (3) A hearing to consider the assessment of any civil penalty under 
section 16(a) of the Toxic Substances Control Act (15 U.S.C. 2615(a));
    (4) A hearing to consider ordering a manufacturer of hazardous 
chemical substances or mixtures to take actions under section 6(b) of 
the Toxic Substances Control Act (15 U.S.C. 2605(b)), to decrease the 
unreasonable risk posed by a chemical substance or mixture;
    (5) A hearing to consider the assessment of any civil penalty under 
section 14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act 
as amended (7 U.S.C. 1361);
    (6) A hearing to consider suspension of a registrant for failure to 
take appropriate steps in the development of registration data under 
section 3(c)(2)(B) of the Federal Insecticide, Fungicide and Rodenticide 
Act as amended (7 U.S.C. 136a);
    (7) A hearing to consider the suspension or cancellation of a 
registration under section 6 of the Federal Insecticide, Fungicide, and 
Rodenticide Act as amended (7 U.S.C. 136d);
    (8) A hearing to consider the assessment of any civil penalty or the 
revocation or suspension of any permit under section 105(a) or 105(f) of 
the Marine Protection, Research, and Sanctuaries Act as amended (33 
U.S.C. 1415(a), 33 U.S.C. 1415(f));
    (9) A hearing to consider the issuance of a compliance order or the 
assessment of any civil penalty conducted under section 3008 of the 
Resource Conservation and Recovery Act as amended (42 U.S.C. 6928);
    (10) A hearing to consider the issuance of a compliance order under 
section 11(d) of the Noise Control Act as amended (42 U.S.C. 4910(d)).
    (b) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.



Sec. 17.4  Applicability to EPA proceedings.

    The Act applies to an adversary adjudication pending before EPA at 
any time between October 1, 1981 and September 30, 1984. This includes 
proceedings begun before October 1, 1981 if final EPA action has not 
been taken before that date, and proceedings pending on September 30, 
1984.



Sec. 17.5  Eligibility of applicants.

    (a) To be eligible for an award of attorney's fees and other 
expenses under the Act, the applicant must be a prevailing party in the 
adversary adjudication for which it seeks an award. The term party is 
defined in 5 U.S.C. 551(3). The applicant must show that it meets all 
conditions of eligibility set out in this subpart and in subpart B.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $1 million;
    (2) The sole owner of an unincorporated business which has a net 
worth of not more than $5 million and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 114j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $5 million and 
not more than 500 employees.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date of 
adversary adjudication was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered as an individual rather than a sole owner of an 
unincorporated business if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interest.
    (e) The employees of an applicant include all persons who regularly 
perform services for remuneration for the

[[Page 215]]

applicant under the applicant's direction and control. Part-time 
employees shall be included.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. An 
individual or group of individuals, corporation, or other entity that 
directly or indirectly controls or owns a majority of the voting shares 
of another business' board of directors, trustees, or other persons 
exercising similar functions, shall be considered an affiliate of that 
business for purposes of this part. In addition, the Presiding Officer 
may determine that financial relationships of the applicant other than 
those described in this paragraph constitute special circumstances that 
would make an award unjust.
    (g) An applicant is not eligible if it has participated in the 
proceeding on behalf of other persons or entities that are ineligible.



Sec. 17.6  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding unless the position of 
the EPA as a party to the proceeding was substantially justified or 
unless special circumstances make the award sought unjust. No 
presumption arises that the agency's position was not substantially 
justified simply because the agency did not prevail.
    (b) An award shall be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.



Sec. 17.7  Allowable fees and other expenses.

    (a) The following fees and other expenses are allowable under the 
Act:
    (1) Reasonable expenses of expert witnesses;
    (2) The reasonable cost of any study, analysis, engineering report, 
test, or project which EPA finds necessary for the preparation of the 
party's case;
    (3) Reasonable attorney or agent fees;
    (b) The amount of fees awarded will be based upon the prevailing 
market rates for the kind and quality of services furnished, except 
that:
    (1) Compensation for an expert witness will not exceed $24.09 per 
hour; and
    (2) Attorney or agent fees will not be in excess of $75 per hour.
    (c) In determining the reasonableness of the fee sought, the 
Presiding Officer shall consider the following:
    (1) The prevailing rate for similar services in the community in 
which the attorney, agent, or witness ordinarily performs services;
    (2) The time actually spent in the representation of the applicant;
    (3) The difficulty or complexity of the issues raised by the 
application;
    (4) Any necessary and reasonable expenses incurred;
    (5) Such other factors as may bear on the value of the services 
performed.



Sec. 17.8  Delegation of authority.

    The Administrator delegates to the Environmental Appeals Board 
authority to take final action relating to the Equal Access to Justice 
Act. The Environmental Appeals Board is described at 40 CFR 1.25(e). 
This delegation does not preclude the Environmental Appeals Board from 
referring any matter related to the Equal Access to Justice Act to the 
Administrator when the Environmental Appeals Board deems it appropriate 
to do so. When an appeal or motion is referred to the Administrator by 
the Environmental Appeals Board, all parties shall be so notified and 
the rules in this part referring to the Environmental Appeals Board 
shall be interpreted as referring to the Administrator.

[57 FR 5323, Feb 13, 1992]



             Subpart B--Information Required From Applicants



Sec. 17.11  Contents of application.

    (a) An application for award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. The application shall show that the applicant has prevailed and 
identify the position of EPA in the proceeding that the applicant 
alleges was not substantially justified.
    (b) The application shall include a statement that the applicant's 
net worth as of the time the proceeding was initiated did not exceed $1 
million if the applicant is an individual (other

[[Page 216]]

than a sole owner of an unincorporated business seeking an award in that 
capacity) or $5 million in the case of all other applicants. An 
applicant may omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) and is exempt 
from taxation under section 501(a) of the Code or, in the case of such 
an organization not required to obtain a ruling from the Internal 
Revenue Service on its exempt status, a statement that describes the 
basis for the applicant's belief that it qualifies under section 
501(c)(3) of the Code; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(a)).
    (c) If the applicant is a partnership, corporation, association, or 
organization, or a sole owner of an unincorporated business, the 
application shall state that the applicant did not have more than 500 
employees at the time the proceeding was initiated, giving the number of 
its employees and describing briefly the type and purpose of its 
organization or business.
    (d) The application shall itemize the amount of fees and expenses 
sought.
    (e) The application may include any other matters that the applicant 
believes should be considered in determining whether and in what amount 
an award should be made.
    (f) The application shall be signed by the applicant with respect to 
the eligibility of the applicant and by the attorney of the applicant 
with respect to fees and expenses sought. The application shall contain 
or be accompanied by a written verification under oath or affirmation or 
under penalty of perjury that the information provided in the 
application and all accompanying material is true and complete to the 
best of the signer's information and belief.

(Approved by the Office of Management and Budget under control number 
2000-0403)



Sec. 17.12  Net worth exhibit.

    (a) Each applicant except a qualified tax exempt organization or a 
qualified cooperative must submit with its application a detailed 
exhibit showing its net worth at the time the proceeding was initiated. 
If any individual, corporation, or other entity directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or if the applicant directly or indirectly owns or 
controls a majority of the voting shares or other interest of any 
corporation or other entity, the exhibit must include a showing of the 
net worth of all such affiliates or of the applicant including the 
affiliates. The exhibit may be in any form that provides full disclosure 
of assets and liabilities of the applicant and any affiliates and is 
sufficient to determine whether the applicant qualifies under the 
standards of 5 U.S.C. 504(b)(1)(B)(i). The Presiding Officer may require 
an applicant to file additional information to determine the applicant's 
eligibility for an award.
    (b) The net worth exhibit shall describe any transfers of assets 
from, or obligations incurred by, the applicant or any affiliate 
occurring in the one-year period prior to the date on which the 
proceeding was initiated that reduced the net worth of the applicant and 
its affiliates below the applicable net worth ceiling. If there were no 
such transactions, the applicant shall so state.
    (c) The net worth exhibit shall be included in the public record of 
the proceeding.

(Approved by the Office of Management and Budget under control number 
2000-0430)



Sec. 17.13  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
fees and expenses, including the cost of any study, engineering report, 
test, or project, for which an award is sought.
    (b) The documentation shall include an affidavit from any attorney, 
agent, or expert witness representing or appearing in behalf of the 
party stating the actual time expended and the rate at which fees and 
other expenses were computed and describing the specific services 
performed.
    (1) The affidavit shall itemize in detail the services performed by 
the date, number of hours per date, and the services performed during 
those hours. In order to establish the hourly rate, the

[[Page 217]]

affidavit shall state the hourly rate which is billed and paid by the 
majority of clients during the relevant time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide affidavits from 
two attorneys or agents with similar experience, who perform similar 
work, stating the hourly rate which they bill and are paid by the 
majority of their clients during a comparable time period.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The Presiding Officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.

(Approved by the Office of Management and Budget under control number 
2000-0430)



Sec. 17.14  Time for submission of application.

    (a) An application must be filed no later than 30 days after final 
disposition of the proceeding. If agency review or reconsideration is 
sought or taken of a decision in which an applicant believes it has 
prevailed, action on the award of fees shall be stayed pending final 
agency disposition of the underlying controversy.
    (b) Final disposition means the later of: (1) The date on which the 
Agency decision becomes final, either through disposition by the 
Environmental Appeals Board of a pending appeal or through an initial 
decision becoming final due to lack of an appeal or (2) the date of 
final resolution of the proceeding, such as settlement or voluntary 
dismissal, which is not subject to a petition for rehearing or 
reconsideration.
    (c) If judicial review is sought or taken of the final agency 
disposition of the underlying controversy, then agency proceedings for 
the award of fees will be stayed pending completion of judicial review. 
If, upon completion of review, the court decides what fees to award, if 
any, then EPA shall have no authority to award fees.

[48 FR 39936, Sept. 2, 1983, as amended at 57 FR 5323, Feb. 13, 1992]



           Subpart C--Procedures for Considering Applications



Sec. 17.21  Filing and service of documents.

    An application for an award and any other pleading or document 
related to the application shall be filed and served on all parties to 
the proceeding in the same manner as other pleadings in the proceeding.



Sec. 17.22  Answer to application.

    (a) Within 30 calendar days after service of the application, EPA 
counsel shall file an answer.
    (b) If EPA counsel and the applicant believe that they can reach a 
settlement concerning the award, EPA counsel may file a statement of 
intent to negotiate. The filing of such a statement shall extend the 
time for filing an answer an additional 30 days.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on to support the objection. If 
the answer is based on any alleged facts not already reflected in the 
record of the proceeding, EPA counsel shall include with the answer 
either a supporting affidavit or affidavits or request for further 
proceedings under Sec. 17.25.



Sec. 17.23  Comments by other parties.

    Any party to a proceeding other than the applicant and EPA counsel 
may file comments on an application within 30 calendar days after it is 
served or on an answer within 15 calendar days after it is served.



Sec. 17.24  Settlement.

    A prevailing party and EPA counsel may agree on a proposed 
settlement of an award before final action on the application, either in 
connection with a settlement of the underlying proceeding or after the 
underlying proceeding has been concluded. If the party and EPA counsel 
agree on a proposed settlement of an award before an application has 
been filed, the application

[[Page 218]]

shall be filed with the proposed settlement.



Sec. 17.25  Extensions of time and further proceedings.

    (a) The Presiding Officer may, on motion and for good cause shown, 
grant extensions of time, other than for filing an application for fees 
and expenses, after final disposition in the adversary adjudication.
    (b) Ordinarily, the determination of an award will be made on the 
basis of the written record of the underlying proceeding and the filings 
required or permitted by the foregoing sections of these rules. However, 
the adjudicative officer may sua sponte or on motion of any party to the 
proceedings require or permit further filings or other action, such as 
an informal conference, oral argument, additional written submissions, 
or an evidentiary hearing. Such further action shall be allowed only 
when necessary for full and fair resolution of the issues arising from 
the application and shall take place as promptly as possible. A motion 
for further filings or other action shall specifically identify the 
information sought on the disputed issues and shall explain why the 
further filings or other action is necessary to resolve the issues.
    (c) In the event that an evidentiary hearing is required or 
permitted by the adjudicative officer, such hearing and any related 
filings or other action required or permitted shall be conducted 
pursuant to the procedural rules governing the underlying adversary 
adjudication.



Sec. 17.26  Decision on application.

    The Presiding Officer shall issue a recommended decision on the 
application which shall include proposed written findings and 
conclusions on such of the following as are relevant to the decision: 
(a) The applicant's status as a prevailing party; (b) the applicant's 
qualification as a ``party'' under 5 U.S.C. 504(b)(1)(B); (c) whether 
EPA's position as a party to the proceeding was substantially justified; 
(d) whether the special cirumstances make an award unjust; (e) whether 
the applicant during the course of the proceedings engaged in conduct 
that unduly and unreasonably protracted the final resolution of the 
matter in controversy; and (f) the amounts, if any, awarded for fees and 
other expenses, explaining any difference between the amount requested 
and the amount awarded.



Sec. 17.27  Agency review.

    The recommended decision of the Presiding Officer will be reviewed 
by EPA in accordance with EPA's procedures for the type of substantive 
proceeding involved.



Sec. 17.28  Judicial review.

    Judicial review of final EPA decisions on awards may be sought as 
provided in 5 U.S.C. 504(c)(2).



Sec. 17.29  Payment of award.

    An applicant seeking payment of an award shall submit a copy of the 
final decision granting the award to the Office of Financial Management 
for Processing. A statement that review of the underlying decision is 
not being sought in the United States courts or that the process for 
seeking review of the award has been completed must also be included.



PART 20--CERTIFICATION OF FACILITIES--Table of Contents




Sec.
20.1  Applicability.
20.2  Definitions.
20.3  General provisions.
20.4  Notice of intent to certify.
20.5  Applications.
20.6  State certification.
20.7  General policies.
20.8  Requirements for certification.
20.9  Cost recovery.
20.10  Revocation.

Appendix A to Part 20--Guidelines for Certification

    Authority: Secs. 301, 704, 80 Stat. 379, 83 Stat. 667; 5 U.S.C. 301, 
26 U.S.C. 169.

    Source: 36 FR 22382, Nov. 25, 1971, unless otherwise noted.



Sec. 20.1   Applicability.

    The regulations of this part apply to certifications by the 
Administrator of water or air pollution control facilities for purposes 
of section 169 of the Internal Revenue Code of 1954, as amended,

[[Page 219]]

26 U.S.C. 169, as to which the amortization period began after December 
31, 1975. Certification of air or water pollution control facilities as 
to which the amortization period began before January 1, 1976, will 
continue to be governed by Environmental Protection Agency regulations 
published November 25, 1971, at 36 FR 22382. Applicable regulations of 
the Department of Treasury are at 26 CFR 1.169 et seq.

[43 FR 1340, Jan. 9, 1978]



Sec. 20.2   Definitions.

    As used in this part, the following terms shall have the meaning 
indicated below:
    (a) Act means, when used in connection with water pollution control 
facilities, the Federal Water Pollution Control Act, as amended (33 
U.S.C. 1251 et seq.) or, when used in connection with air pollution 
control facilities, the Clean Air Act, as amended (42 U.S.C. 1857 et 
seq.).
    (b) State certifying authority means:
    (1) For water pollution control facilities, the State pollution 
control agency as defined in section 502 of the Act.
    (2) For air pollution control facilities, the air pollution control 
agency designated pursuant to section 302(b)(1) of the Act; or
    (3) For both air and water pollution control facilities, any 
interstate agency authorized to act in place of the certifying agency of 
a State.
    (c) Applicant means any person who files an application with the 
Administrator for certification that a facility is in compliance with 
the applicable regulations of Federal agencies and in furtherance of the 
general policies of the United States for cooperation with the States in 
the prevention and abatement of water or air pollution under the Act.
    (d) Administrator means the Administrator, Environmental Protection 
Agency.
    (e) Regional Administrator means the Regional designee appointed by 
the Administrator to certify facilities under this part.
    (f) Facility means property comprising any new identifiable 
treatment facility which removes, alters, disposes of, stores, or 
prevents the creation of pollutants, contaminants, wastes, or heat.
    (g) State means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Canal Zone, Guam, American Samoa, the 
Virgin Islands, and the Trust Territory of the Pacific Islands.

[36 FR 22382, Nov. 25, 1971, as amended at 43 FR 1340, Jan. 9, 1978]



Sec. 20.3   General provisions.

    (a) An applicant shall file an application in accordance with this 
part for each separate facility for which certification is sought; 
Provided, That one application shall suffice in the case of 
substantially identical facilities which the applicant has installed or 
plans to install in connection with substantially identical properties; 
Provided further, That an application may incorporate by reference 
material contained in an application previously submitted by the 
applicant under this part and pertaining to substantially identical 
facilities.
    (b) The applicant shall, at the time of application to the State 
certifying authority, submit an application in the form prescribed by 
the Administrator to the Regional Administrator for the region in which 
the facility is located.
    (c) Applications will be considered complete and will be processed 
when the Regional Administrator receives the completed State 
certification.
    (d) Applications may be filed prior or subsequent to the 
commencement of construction, acquisition, installation, or operation of 
the facility.
    (e) An amendment to an application shall be submitted in the same 
manner as the original application and shall be considered a part of the 
original application.
    (f) If the facility is certified by the Regional Administrator, 
notice of certification will be issued to the Secretary of the Treasury 
or his delegate, and a copy of the notice shall be forwarded to the 
applicant and to the State certifying authority. If the facility is 
denied certification, the Regional Administrator will advise the 
applicant and State certifying authority in writing of the reasons 
therefor.

[[Page 220]]

    (g) No certification will be made by the Regional Administrator for 
any facility prior to the time it is placed in operation and the 
application, or amended application, in connection with such facility so 
states.
    (h) An applicant may appeal any decision of the Regional 
Administrator which:
    (1) Denies certification;
    (2) Disapproves the applicant's suggested method of allocating costs 
pursuant to Sec. 20.8(e); or
    (3) Revokes a certification pursuant to Sec. 20.10.

Any such appeal may be taken by filing with the Administrator within 30 
days from the date of the decision of the Regional Administrator a 
written statement of objections to the decision appealed from. Within 60 
days after receipt of such appeal the Administrator shall affirm, 
modify, or revoke the decision of the Regional Administrator, stating in 
writing his reasons therefor.

[36 FR 22382, Nov. 25, 1971, as amended at 43 FR 1340, Jan. 9, 1978]



Sec. 20.4   Notice of intent to certify.

    (a) On the basis of applications submitted prior to the 
construction, reconstruction, erection, acquisition, or operation of a 
facility, the Regional Administrator may notify applicants that such 
facility will be certified if:
    (1) The Regional Administrator determines that such facility, if 
constructed, reconstructed, erected, acquired, installed, and operated 
in accordance with such application will be in compliance with 
requirements identified in Sec. 20.8; and if
    (2) The application is accompanied by a statement from the State 
certifying authority that such facility, if constructed, reconstructed, 
acquired, erected, installed, and operated in accordance with such 
application, will be in conformity with the State program or 
requirements for abatement or control of water or air pollution.
    (b) Notice of actions taken under this section will be given to the 
appropriate State certifying authority.



Sec. 20.5   Applications.

    Applications for certification under this part shall be submitted in 
such manner as the Administrator may prescribe, shall be signed by the 
applicant or agent thereof, and shall include the following information:
    (a) Name, address, and Internal Revenue Service identifying number 
of the applicant;
    (b) Type and narrative description of the new identifiable facility 
for which certification is (or will be) sought, including a copy of 
schematic or engineering drawings, and a description of the function and 
operation of such facility;
    (c) Address (or proposed address) of facility location;
    (d) A general description of the operation in connection with which 
the facility is (or will be) used and a description of the specific 
process or processes resulting in discharges or emissions which are (or 
will be) controlled or prevented by the facility.
    (e) If the facility is (or will be) used in connection with more 
than one plant or other property, one or more of which were not in 
operation before January 1, 1976, a description of the operations of the 
facility in respect to each plant or other property, including a 
reasonable allocation of the costs of the facility among the plants 
being serviced, and a description of the reasoning and accounting method 
or methods used to arrive at these allocations.
    (f) A description of the effect of the facility in terms of type and 
quantity of pollutants, contaminants, wastes, or heat, removed, altered, 
stored, disposed of, or prevented by the facility.
    (g) If the facility performs a function other than removal, 
alteration, storage, prevention, or disposal of pollutants, 
contaminants, wastes, or heat, a description of all functions performed 
by the facility, including a reasonable identification of the costs of 
the facility allocable to removal, alteration, storage, prevention, or 
disposal of pollutants, contaminants, wastes, or heat and a description 
of the reasoning and accounting method or methods used to arrive at the 
allocation.
    (h) Date when such construction, reconstruction, or erection will be 
completed or when such facility was (or will be) acquired;

[[Page 221]]

    (i) Date when such facility is placed (or is intended to be placed) 
in operation;
    (j) Identification of the applicable State and local water or air 
pollution control requirements and standards, if any;
    (k) Expected useful life of facility;
    (l) Cost of construction, acquisition, installation, operation, and 
maintenance of the facility;
    (m) Estimated profits reasonably expected to be derived through the 
recovery of wastes or otherwise in the operation of the facility over 
the period referred to in paragraph (a)(6) of 26 CFR 1.169-2;
    (n) The percentage (if any, and if the taxpayer claims that the 
percentage is 5 percent or less) by which the facility (1) increases the 
output or capacity, (2) extends the useful life, or (3) reduces the 
total operating costs of the operating unit of the plant or other 
property most directly associated with the pollution control facility 
and a description of the reasoning and accounting method or methods used 
to arrive at this percentage.
    (o) Such other information as the Administrator deems necessary for 
certification.

[36 FR 22382, Nov. 25, 1971, as amended at 43 FR 1340, Jan. 9, 1978]



Sec. 20.6  State certification.

    The State certification shall be by the State certifying authority 
having jurisdiction with respect to the facility in accordance with 26 
U.S.C. 169(d)(1)(A) and (d)(2). The certification shall state that the 
facility described in the application has been constructed, 
reconstructed, erected, or acquired in conformity with the State program 
or requirements for abatement or control of water or air pollution. It 
shall be executed by an agent or officer authorized to act on behalf of 
the State certifying authority.



Sec. 20.7   General policies.

    (a) The general policies of the United States for cooperation with 
the States in the prevention and abatement of water pollution are: To 
enhance the quality and value of our water resources; to eliminate or 
reduce the pollution of the nation's waters and tributaries thereof; to 
improve the sanitary condition of surface and underground waters; and to 
conserve such waters for public water supplies, propagation of fish and 
aquatic life and wildlife, recreational purposes, and agricultural, 
industrial, and other legitimate uses.
    (b) The general policy of the United States for cooperation with the 
States in the prevention and abatement of air pollution is to cooperate 
with and to assist the States and local governments in protecting and 
enhancing the quality of the Nation's air resources by the prevention 
and abatement of conditions which cause or contribute to air pollution 
which endangers the public health or welfare.



Sec. 20.8   Requirements for certification.

    (a) Subject to Sec. 20.9, the Regional Administrator will certify a 
facility if he makes the following determinations:
    (1) It has been certified by the State certifying authority.
    (2) That the facility: (i) Removes, alters, disposes of, stores, or 
prevents the creation of pollutants, contaminants, wastes, or heat, 
which, but for the facility, would be released into the environment;
    (ii) Does not by a factor or more than 5 percent: (A) Increase the 
output or capacity, (B) extend the useful life, or (C) reduce the total 
operating costs of the operating unit (of the plant or other property) 
most directly associated with the pollution control facility; and
    (iii) Does not significantly alter the nature of the manufacturing 
or production process or facility.
    (3) The applicant is in compliance with all regulations of Federal 
agencies applicable to use of the facility, including conditions 
specified in any NPDES permit issued to the applicant under section 402 
of the Act.
    (4) The facility furthers the general policies of the United States 
and the States in the prevention and abatement of pollution.
    (5) The applicant has complied with all the other requirements of 
this part and has submitted all requested information.
    (b) In determining whether use of a facility furthers the general 
policies of the United States and the States in the

[[Page 222]]

prevention and abatement of water pollution, the Regional Administrator 
shall consider whether such facility is consistent with the following, 
insofar as they are applicable to the waters which will be affected by 
the facility:
    (1) All applicable water quality standards, including water quality 
criteria and plans of implementation and enforcement established 
pursuant to section 303 of the Act or State laws or regulations;
    (2) Decisions issued pursuant to section 310 of the Act;
    (3) Water pollution control programs required pursuant to any one or 
more of the following sections of the Act: Section 306, section 307, 
section 311, section 318, or section 405; or in order to be consistent 
with a plan under section 208.
    (c) In determining whether use of a facility furthers the general 
policies of the United States and the States in the prevention and 
abatement of air pollution, the Regional Administrator shall consider 
whether such facility is consistent with and meets the following 
requirements, insofar as they are applicable to the air which will be 
affected by the facility;
    (1) Plans for the implementation, maintenance, and enforcement of 
ambient air quality standards adopted or promulgated pursuant to section 
110 of the Act;
    (2) Recommendations issued pursuant to sections 103(e) and 115 of 
the Act which are applicable to facilities of the same type and located 
in the area to which the recommendations are directed;
    (3) Local government requirements for control of air pollution, 
including emission standards;
    (4) Standards promulgated by the Administrator pursuant to the Act.
    (d) A facility that removes elements or compounds from fuels that 
would be released as pollutants when such fuels are burned is eligible 
for certification if the facility is--
    (1) Used in connection with a plant or other property in operation 
before January 1, 1976 (whether located and used at a particular plant 
or as a centralized facility for one or more plants), and
    (2) Is otherwise eligible for certification.
    (e) Where a facility is used in connection with more than one plant 
or other property, one or more of which were not in operation before 
January 1, 1976, or where a facility will perform a function other than 
the removal, alteration, storage, disposal, or prevention of pollutants, 
contaminants, wastes, or heat, the Regional Administrator will so 
indicate on the notice of certification and will approve or disapprove 
the applicant's suggested method of allocating costs. If the Regional 
Administrator disapproves the applicant's suggested method, he shall 
identify the proportion of costs allocable to each such plant, or to the 
removal, alteration, storage, disposal, or prevention of pollutants, 
contaminants, wastes, or heat.

[36 FR 22382, Nov. 25, 1971, as amended at 43 FR 1341, Jan. 9, 1978]



Sec. 20.9   Cost recovery.

    Where it appears that, by reason of estimated profits to be derived 
through the recovery of wastes, through separate charges for use of the 
facility in question, or otherwise in the operation of such facility, 
all or a portion of its costs may be recovered over the period referred 
to in paragraph (a)(6) of 26 CFR 1.169-2, the Regional Administrator 
shall so signify in the notice of certification. Determinations as to 
the meaning of the term estimated profits and as to the percentage of 
the cost of a certified facility which will be recovered over such 
period shall be made by the Secretary of the Treasury, or his delegate: 
Provided, That in no event shall estimated profits be deemed to arise 
from the use or reuse by the applicant of recovered waste.



Sec. 20.10   Revocation.

    Certification hereunder may be revoked by the Regional Administrator 
on 30 days written notice to the applicant, served by certified mail, 
whenever the Regional Administrator shall determine that the facility in 
question is no longer being operated consistent with the Sec. 20.8(b) 
and (c) criteria in effect at the time the facility was placed in 
service. Within such 30-day period, the applicant may submit to the 
Regional Administrator such evidence, data or other written materials as 
the

[[Page 223]]

applicant may deem appropriate to show why the certification hereunder 
should not be revoked. Notification of a revocation under this section 
shall be given to the Secretary of the Treasury or his delegate. See 26 
CFR 1.169-4(b)(1).

                Appendix A--Guidelines for Certification

    1. General.
    2. Air Pollution Control Facilities.
    a. Pollution control or treatment facilities normally eligible for 
certification.
    b. Air pollution control facility boundaries.
    c. Examples of eligibility limits.
    d. Replacement of manufacturing process by another nonpolluting 
process.
    3. Water Pollution Control Facilities.
    a. Pollution control or treatment facilities normally eligible for 
certification.
    b. Examples of eligibility limits.
    4. Multiple-purpose facilities.
    5. Facilities serving both old and new plants.
    6. State certification.
    7. Dispersal of pollutants.
    8. Profit-making facilities.
    9. Multiple applications.

    1. General. Section 2112 of the Tax Reform Act of 1976 (Pub. L. 94-
455, October 4, 1976) amended section 169 of the Internal Revenue Code 
of 1954, ``Amortization of Pollution Control Facilities.'' The amendment 
made permanent the rapid amortization provisions of section 704 of the 
Tax Reform Act of 1969 (Pub. L. 91-172, December 30, 1969) and redefined 
eligibility limits to allow certification of facilities which prevent 
the creation or emission of pollutants.
    The law defines a certified pollution control facility as a new 
identifiable treatment facility which is:
    (a) Used in connection with a plant or other property in operation 
before January 1, 1976, to abate or control air or water pollution by 
removing, altering, disposing of, storing, or preventing the creation or 
emission of pollutants, contaminants, wastes, or heat;
    (b) Constructed, reconstructed, erected or (if purchased) first 
placed in service by the taxpayer after December 31, 1975;
    (c) Not to significantly increase the output or capacity, extend the 
useful life, alter the nature of the manufacturing or production process 
or facility or reduce the total operating costs of the operating unit of 
the plant or other property most directly associated with the pollution 
control facility (as suggested by the legislative history, EPA 
regulations define the term significant as any increase, reduction or 
extension greater than 5%); and
    (d) Certified by both State and Federal authorities, as provided in 
section 169(d)(1) (A) and (B) of the Internal Revenue Code.
    If the facility is a building, the statute requires that it be 
exclusively devoted to pollution control. Most questions as to whether a 
facility is a building and, if so, whether it is exclusively devoted to 
pollution control are resolved by Sec. 1.169-2(b)(2) of the Treasury 
Department regulations.
    Since a treatment facility is eligible only if it furthers the 
general policies of the United States under the Clean Air Act and the 
Clean Water Act, a facility will be certified only if its purpose is to 
improve the quality of the air or water outside the plant. Facilities to 
protect the health or safety of employees inside the plant are not 
eligible.
    Facilities installed before January 1, 1976, in plants placed in 
operation after December 31, 1968, are ineligible for certification 
under the statute. 26 U.S.C. 169.
    2. Air pollution control facilities.
    a. Pollution control or treatment facilities normally eligible for 
certification. The following devices are illustrative of facilities for 
removal, alteration, disposal, storage or preventing the creation or 
emission of air pollution:
    (1) Inertial separators (cyclones, etc.).
    (2) Wet collection devices (scrubbers).
    (3) Electrostatic precipitators.
    (4) Cloth filter collectors (baghouses).
    (5) Director fired afterburners.
    (6) Catalytic afterburners.
    (7) Gas absorption equipment.
    (8) Vapor condensers.
    (9) Vapor recovery systems.
    (10) Floating roofs for storage tanks.
    (11) Fuel cleaning equipment.
    (12) Combinations of the above.
    (b) Air Pollution control facility boundaries. Most facilities are 
systems consisting of several parts. A facility need not start at the 
point where the gaseous effluent leaves the last unit of the processing 
equipment, nor will it always extend to the point where the effluent is 
emitted to the atmosphere or existing stack, breeching, ductwork or 
vent. It includes all the auxiliary equipment used to operate the 
control system, such as fans, blowers, ductwork, valves, dampers and 
electrical equipment. It also includes all equipment used to handle, 
store, transport or dispose of the collected pollutants.
    (c) Examples of eligibility limits. The amortization deduction is 
limited to new identifiable treatment facilities which remove, alter, 
destroy, dispose of, store, or prevent the creation or emission of 
pollutants, contaminants or wastes. It is not available for all 
expenditures for air pollution control and is limited to devices which 
are installed for the purpose of pollution control and which actually 
remove, alter, destroy, dispose of, store or prevent the creation or 
emission of

[[Page 224]]

pollutants by removing potential pollutants at any stage of the 
production process.
    (1) Boiler modifications or replacements. Modifications of boilers 
to accommodate cleaner fuels are not eligible for rapid amortization: 
e.g., removal of stokers from a coal-fired boiler and the addition of 
gas or oil burners. The purpose of the burners is to produce heat, and 
they are not identifiable as treatment facilities nor do they prevent 
the creation or emission of pollutants by removing potential pollutants. 
A new gas or oil-fired boiler that replaces a coal-fired boiler would 
also be ineligible for certification.
    (2) Fuel processing. Eligible air pollution control facilities 
include preprocessing equipment which removes potential air pollutants 
from fuels before they are burned. A desulfurization facility would thus 
be eligible provided it is used in connection with the plant where the 
desulfurized coal will be burned or is used as a centralized facility 
for one or more plants. However, fluidized bed facilities would 
generally not be eligible for rapid amortization. Such facilities would 
almost certainly increase output or capacity, reduce total operating 
costs, or extend the useful life of the plant or other property by more 
than 5%, since the boiler itself would be the operating unit of the 
plant most closely associated with the pollution control facility. Where 
the Regional Office and the taxpayer disagree as to the applicability of 
the 5% rule, the Regional office should nonetheless certify the facility 
if it is otherwise eligible and leave the ultimate determination to the 
Treasury Department. The certification should alert Treasury to the 
possibility that the facility is ineligible for rapid amortization.
    (3) Incinerators. The addition of an afterburner, secondary 
combustion chamber or particulate collector would be eligible as would 
any device added to effect more efficient combustion.
    (4) Collection devices used to collect products or process material. 
In some manufacturing operations, devices are used to collect product or 
process material, as in the case of the manufacture of carbon black. The 
baghouse would be eligible for certification, but the certification 
should notify the Treasury Department of the profitable waste recovery 
involved. (See paragraph 8 below.)
    (5) Intermittent control systems. Measuring devices which inform the 
taxpayer that ambient air quality standards are being exceeded are not 
eligible for certification since they do not physically remove, alter, 
destroy, dispose of, store or prevent the creation or emission of 
pollutants, but merely act as a signal to curtail operations. Of course, 
measuring devices used in connection with an eligible pollution control 
facility would be eligible.
    d. Replacement of manufacturing process by another, nonpolluting 
process. An installation does not qualify for certification where it 
uses a process known to be cleaner than an alternative, but which does 
not actually remove, alter, destroy, dispose of, store or prevent the 
creation or emission of pollutants by removing potential pollutants at 
any stage in the production process. For example, a minimally polluting 
electric induction furnace to melt cast iron which replaces, or is 
installed instead of, a heavily polluting iron cupola furnace would be 
ineligible for this reason and because it is not an identifiable 
treatment facility. However, if the replacement equipment has an air 
pollution control device added to it, the control device would be 
eligible even though the process equipment would not. For example, where 
a primary copper smelting reverberatory furnace is replaced by a flash 
smelting furnace, followed by the installation of a contact sulfuric 
acid plant, the acid plant would qualify since it is a control device 
not necessary to the production process. The flash smelting furnace 
would not qualify because its purpose is to produce copper matte.
    3. Water Pollution Control Facilities.
    a. Pollution control or treatment facilities normally eligible for 
certification. The following types of equipment are illustrative of 
facilities to remove, alter, destroy, store or prevent the creation of 
water pollution:
    (1) Pretreatment facilities which neutralize or stabilize industrial 
or sanitary wastes, or both, from a point immediately preceding the 
point of such treatment to the point of disposal to, and acceptance by, 
a publicly-owned treatment works. The necessary pumping and transmitting 
facilities are also eligible.
    (2) Treatment facilities which neutralize or stabilize industrial or 
sanitary wastes, or both, to comply with Federal, State or local 
effluent or water quality standards, from a point immediately preceding 
the point of such treatment to the point of disposal, including 
necessary pumping and transmitting facilities, including those for 
recycle or segregation of wastewater.
    (3) Ancillary devices and facilities such as lagoons, ponds and 
structures for storage, recycle, segregation or treatment, or any 
combination of these, of wastewaters or wastes from a plant or other 
property.
    (4) Devices, equipment or facilities constructed or installed for 
the primary purpose of recovering a by-product of the operation 
(saleable or otherwise) previously lost either to the atmosphere or to 
the waste effluent. Examples are:
    (A) A facility to concentrate and recover vaporous by-products from 
a process stream for reuse as raw feedstock or for resale, unless the 
estimated profits from resale exceed the cost of the facility (see 
paragraph 8 below).
    (B) A facility to concentrate or remove gunk or similar tars or 
polymerized tar-like

[[Page 225]]

materials from the process waste effluent previously discharged in the 
plant effluents. Removal may occur at any stage of the production 
process.
    (C) A device used to extract or remove insoluble constitutents from 
a solid or liquid by use of a selective solvent; an open or closed tank 
or vessel in which such extraction or removal occurs; a diffusion 
battery of tanks or vessels for countercurrent decantation, extraction, 
or leaching, etc.
    (D) A skimmer or similar device for removing grease, oils and fat-
like materials from the process or effluent stream.
    (b) Examples of eligibility limits.
    (1) In-plant process changes which may result in the reduction or 
elimination of pollution but which do not themselves remove, alter, 
destroy, dispose of, store or prevent the creation of pollutants by 
removing potential pollutants at some point in the process stream are 
not eligible for certification.
    (2) A device, piece of equipment or facility is not eligible if it 
is associated with or included in a stream for subsurface injection of 
untreated or inadequately treated industrial or sanitary waste.
    4. Multiple-purpose facilities. A facility can qualify for rapid 
amortization if it serves a function other than the abatement of 
pollution (unless it is a building). Otherwise, the effect might be to 
discourage installation of sensible pollution abatement facilities in 
favor of less efficient single-function facilities.
    The regulations require applicants to state what percentage of the 
cost of a facility is properly allocable to its abatement function and 
to justify the allocation. The Regional Office will review these 
allocations, and the certification will inform the Treasury Department 
if the allocation appears to be incorrect. Although not generally 
necessary or desireable, site inspections may be appropriate in cases 
involving large sums of money or unusual types of equipment.
    5. Facilities serving both old and new plants. The statute provides 
that pollution control facilities must be used in connection with a 
plant or other property in operation before January 1, 1976. When a 
facility is used in connection with both pre-1976 and newer property, it 
may qualify for rapid amortization to the extent it is used in 
connection with pre-1976 property.
    Again, the applicant will submit a theory of allocation for review 
by the Regional Office. The usual method of allocation is to compare the 
effluent capacity of the pre-1976 plant to the treatment capacity of the 
control facility. For example, if the old plant has a capacity of 80 
units of effluent (but an average output of 60 units), the new plant has 
a capacity of 40 units (but an average output of 20 units), and the 
control facility has a capacity of 150 units, then \80/150\ of the cost 
of the control facility would be eligible for rapid amortization.
    If a taxpayer presents a seemingly reasonable method of allocation 
different from the foregoing, Regional Office personnel should consult 
with the Office of Air Quality Planning and Standards or the Office of 
Water Planning and Standards, and with the Office of General Counsel.
    6. State certification. To qualify for rapid amortization under 
section 169, a facility must first be certified by the State as having 
been installed ``in conformity with the State program or requirements 
for abatement or control of water or atmospheric pollution or 
contamination.'' Significantly, the statute does not say that the State 
must require that a facility be installed. If use of a facility will not 
actually contravene a State requirement, the State may certify. However, 
since State certification is a prerequisite to EPA certification, EPA 
may not certify if the State has denied certification for whatever 
reason.
    It should be noted that certification of a facility does not 
constitute the personal warranty of the certifying official that the 
conditions of the statute have been met. EPA certification is binding on 
the Government only to the extent the submitted facts are accurate and 
complete.
    7. Dispersal of pollutants. Section 169 applies to facilities which 
remove, alter, destroy, dispose of, store or prevent the creation or 
emission of pollutants--including heat. Facilities which merely disperse 
pollutants (such as tall stacks) do not qualify. However, there is no 
way to dispose of heat other than by transferring B.t.u.'s to the 
environment. A cooling tower is therefore eligible for certification 
provided it is used in connection with a pre-1976 plant. A cooling pond 
or an addition to an outfall structure which results in a decrease in 
the amount by which the temperature of the receiving water is raised and 
which meets applicable State standards is likewise eligible.
    8. Profit-making facilities. The statute denies rapid amortization 
where the cost of pollution control facilities will be recovered from 
profits derived through the recovery or wastes or otherwise.
    If a facility recovers marketable wastes, estimated profits on which 
are not sufficient to recover the entire cost of the facility, the 
amortization basis of the facility will be reduced in accordance with 
Treasury Department regulations. The responsibility of the Regional 
Offices is merely to identify for the Treasury Department those cases in 
which estimated profits will arise. The Treasury Department will 
determine the amount of such profits and the extent to which they can be 
expected to result in cost recovery, but the EPA certification should 
inform the Treasury whether cost recovery is possible.

[[Page 226]]

    The phrase or otherwise also includes situations where the taxpayer 
is in the business of renting the facility for a fee or charging for the 
treatment of waste. In such cases, the facility may theoretically 
qualify for EPA certification. The decision as to the extent of its 
profitability is for the Treasury Department. Situations may also arise 
where use of a facility is furnished at no additional charge to a number 
of users, or to the public, as part of a package of other services. In 
such cases, no profits will be deemed to arise from operation of the 
facility unless the other services included in the package are merely 
ancillary to use of the facility. Of course, the cost recovery provision 
does not apply where a taxpayer merely recovers the cost of a facility 
through general revenues; otherwise no profitable firm would ever be 
eligible for rapid amortization.
    It should be noted that Sec. 20.9 of the EPA regulation is not meant 
to affect general principles of Federal income tax law. An individual 
other than the title holder of a piece of property may be entitled to 
take depreciation deductions on it if the arrangements by which such 
individual has use of the property may, for all practical purposes, be 
viewed as a purchase. In any such case, the facility could qualify for 
full rapid amortization, notwithstanding the fact that the title holder 
charges a separate fee for the use of the facility, so long as the 
taxpayer--in such a case, the user--does not charge a separate fee for 
use of the facility.
    9. Multiple applications. Under EPA regulations, a multiple 
application may be submitted by a taxpayer who applies for certification 
of substantially identical pollution abatement facilities used in 
connection with substantially identical properties. It is not 
contemplated that the multiple application option will be used with 
respect to facilities in different States, since each such facility 
would require a separate application for certification to the State 
involved. EPA regulations also permit an applicant to incorporate by 
reference in an application material contained in an application 
previously filed. The purpose of this provision is to avoid the burden 
of furnishing detailed information (which may in some cases include 
portions of catalogs or process flow diagrams) which the certifying 
official has previously received. Accordingly, material filed with a 
Regional Office of EPA may be incorporated by reference only in an 
application subsequently filed with the same Regional Office.

[47 FR 38319, Aug. 31, 1982]



PART 21--SMALL BUSINESS--Table of Contents




Sec.
21.1  Scope.
21.2  Definitions.
21.3  Submission of applications.
21.4  Review of application.
21.5  Issuance of statements.
21.6  Exclusions.
21.7  [Reserved]
21.8  Resubmission of application.
21.9  Appeals.
21.10  Utilization of the statement.
21.11  Public participation.
21.12  State issued statements.
21.13  Effect of certification upon authority to enforce applicable 
          standards.

    Authority: 15 U.S.C. 636, as amended by Pub. L. 92-500.

    Source: 42 FR 8083, Feb. 8, 1977, unless otherwise noted.



Sec. 21.1   Scope.

    This part establishes procedures for the issuance by EPA of the 
statements, referred to in section 7(g) of the Small Business Act and 
section 8 of the Federal Water Pollution Control Act Amendments of 1972, 
to the effect that additions to or alterations in the equipment, 
facilities (including the construction of pretreatment facilities and 
interceptor sewers), or methods of operations of small business concerns 
are necessary and adequate to comply with requirements established under 
the Federal Water Pollution Control Act, 33 U.S.C. 1151, et seq.



Sec. 21.2   Definitions.

    (a) Small business concern means a concern defined by section 2[3] 
of the Small Business Act, 15 U.S.C. 632, 13 CFR part 121, and 
regulations of the Small Business Administration promulgated thereunder.
    (b) For purposes of paragraph 7(g)(2) of the Small Business Act, 
necessary and adequate refers to additions, alterations, or methods of 
operation in the absence of which a small business concern could not 
comply with one or more applicable standards. This can be determined 
with reference to design specifications provided by manufacturers, 
suppliers, or consulting engineers; including, without limitations, 
additions, alterations, or methods of operation the design 
specifications of which will provide a measure of treatment or abatement 
of pollution in excess of that required by the applicable standard.
    (c) Applicable Standard means any requirement, not subject to an 
exception under Sec. 21.6, relating to the quality of

[[Page 227]]

water containing or potentially containing pollutants, if such 
requirement is imposed by:
    (1) The Act;
    (2) EPA regulations promulgated thereunder or permits issued by EPA 
or a State thereunder;
    (3) Regulations by any other Federal Agency promulgated thereunder;
    (4) Any State standard or requirement as applicable under section 
510 of the Act;
    (5) Any requirements necessary to comply with an areawide management 
plan approved pursuant to section 208(b) of the Act;
    (6) Any requirements necessary to comply with a facilities plan 
developed under section 201 of the Act (see 35 CFR, subpart E);
    (7) Any State regulations or laws controlling the disposal of 
aqueous pollutants that may affect groundwater.
    (d) Regional Administrator means the Regional Administrator of EPA 
for the region including the State in which the facility or method of 
operation is located, or his designee.
    (e) Act means the Federal Water Pollution Control Act, 33 U.S.C. 
1151, et seq.
    (f) Pollutant means dredged spoil, solid waste, incinerator residue, 
sewage, garbage, sewage sludge, munitions, chemical wastes, biological 
materials, radioactive materials, heat, wrecked or discarded equipment, 
rock, sand, cellar dirt and industrial, municipal, and agricultural 
waste discharged into water. For the purposes of this section, the term 
also means sewage from vessels within the meaning of section 312 of the 
Act.
    (g) Permit means any permit issued by either EPA or a State under 
the authority of section 402 of the Act; or by the Corps of Engineers 
under section 404 of the Act.
    (h) State means a State, the District of Columbia, the Commonwealth 
of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Trust 
Territory of the Pacific Islands.

    Comment: As the SBA does not extend its programs to the Canal Zone, 
the listing of the Canal Zone as a State for the purposes of meeting a 
requirement imposed by section 311 or 312 of the Act is not effective in 
this regulation.

    (i) Statement means a written approval by EPA, or if appropriate, a 
State, of the application.
    (j) Facility means any building, structure, installation or vessel, 
or portion thereof.
    (k) Construction means the erection, building, acquisition, 
alteration, remodeling, modification, improvement, or extension of any 
facility; Provided, That it does not mean preparation or undertaking of: 
Plans to determine feasibility; engineering, architectural, legal, 
fiscal, or economic investigations or studies; surveys, designs, plans, 
writings, drawings, specifications or procedures.

    Comment: This provision would not later preclude SBA financial 
assistance being utilized for any planning or design effort conducted 
previous to construction.

    (l) The term additions and alterations means the act of undertaking 
construction of any facility.
    (m) The term methods of operation means the installation, 
emplacement, or introduction of materials, including those involved in 
construction, to achieve a process or procedure to control: Surface 
water pollution from non-point sources--that is, agricultural, forest 
practices, mining, construction; ground or surface water pollution from 
well, subsurface, or surface disposal operations; activities resulting 
in salt water intrusion; or changes in the movement, flow, or 
circulation of navigable or ground waters.
    (n) The term vessel means every description of watercraft or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on the navigable waters of the United States other than a 
vessel owned or operated by the United States or a State or a political 
subdivision thereof, or a foreign nation; and is used for commercial 
purposes by a small business concern.
    (o) EPA means the Environmental Protection Agency.
    (p) SBA means the Small Business Administration.
    (q) Areawide agency means an areawide management agency designated 
under section 208(c)(1) of the Act.

[[Page 228]]

    (r) Lateral sewer means a sewer which connects the collector sewer 
to the interceptor sewer.
    (s) Interceptor sewer means a sewer whose primary purpose is to 
transport wastewaters from collector sewers to a treatment facility.



Sec. 21.3   Submission of applications.

    (a) Applications for the statement described in Sec. 21.5 of this 
part shall be made to the EPA Regional Office for the region covering 
the State in which the additions, alterations, or methods of operation 
covered by the application are located. A listing of EPA Regional 
Offices, with their mailing addresses, and setting forth the States 
within each region is as follows:

----------------------------------------------------------------------------------------------------------------
                Region                                 Address                               State              
----------------------------------------------------------------------------------------------------------------
I.....................................  Regional Administrator, region I,      Connecticut, Maine,              
                                         EPA, John F. Kennedy Federal Bldg.,    Massachusetts, New Hampshire,   
                                         room 2303, Boston, MA 02203.           Rhode Island, and Vermont.      
II....................................  Regional Administrator, region II,     New Jersey, New York, Virgin     
                                         EPA, 26 Federal Plaza, room 908, New   Islands, and Puerto Rico.       
                                         York, NY 10007.                                                        
III...................................  Regional Administrator, region III,    Delaware, District of Columbia,  
                                         EPA, Curtis Bldg., 6th and Walnut      Pennsylvania, Maryland,         
                                         Sts., Philadelphia, PA 19106.          Virginia, and West Virginia.    
IV....................................  Regional Administrator, region IV,     Alabama, Florida, Georgia,       
                                         EPA, 345 Courtland St. NE., Atlanta,   Kentucky, Mississippi, North    
                                         GA 30308.                              Carolina, South Carolina, and   
                                                                                Tennessee.                      
V.....................................  Regional Administrator, region V,      Illinois, Indiana, Michigan,     
                                         EPA, 230 South Dearborn St.,           Minnesota, Ohio, and Wisconsin. 
                                         Chicago, IL 60604.                                                     
VI....................................  Regional Administrator, region VI,     Arkansas, Louisiana, New Mexico, 
                                         EPA, 1201 Elm St., 27th floor, First   Oklahoma, and Texas.            
                                         International Bldg., 70 Dallas, TX                                     
                                         75201.                                                                 
VII...................................  Regional Administrator, region VII,    Iowa, Kansas, Missouri, and      
                                         EPA, 1735 Baltimore Ave., Kansas       Nebraska.                       
                                         City, MO 64108.                                                        
VIII..................................  Regional Administrator, region VIII,   Colorado, Montana, North Dakota, 
                                         EPA, 1860 Lincoln St., Suite 900,      South Dakota, Utah, and Wyoming.
                                         Denver, CO 80203.                                                      
IX....................................  Regional Administrator, region IX,     Arizona, California, Hawaii,     
                                         EPA, 100 California St., San           Nevada, Guam, American Samoa,   
                                         Francisco, CA 94111.                   and Trust Territory of the      
                                                                                Pacific Islands.                
X.....................................  Regional Administrator, region X,      Alaska, Idaho, Oregon, and       
                                         EPA, 1200 6th Ave., Seattle, WA        Washington.                     
                                         98101.                                                                 
----------------------------------------------------------------------------------------------------------------

    (b) An application described in paragraph (1) of Sec. 21.3(c) may be 
submitted directly to the appropriate State, where a State has assumed 
responsibility for issuing the statement. Information on whether EPA has 
retained responsibility for certification or whether it has been assumed 
by the State may be obtained from either the appropriate Regional 
Administrator or the State Water Pollution Control Authority in which 
the facility is located.
    (c) An application need be in no particular form, but it must be in 
writing and must include the following:
    (1) Name of applicant (including business name, if different) and 
mailing address. Address of the affected facility or operation, if 
different, should also be included.
    (2) Signature of the owner, partner, or principal executive officer 
requesting the statement.
    (3) The Standard Industrial Classification number for the business 
for which an application is being submitted. Such SIC number shall be 
obtained from the Standard Industrial Classification Manual, 1972 
edition. If the applicant does not know the SIC for the business, a 
brief description of the type of business activity being conducted 
should be provided.
    (4) A description of the process or activity generating the 
pollution to be abated by the additions, alterations, or methods of 
operation covered by the application, accompanied by a schematic diagram 
of the major equipment and process, where practicable.
    (5) A specific description of the additions, alterations, or methods 
of operation covered by the application. Where appropriate, such 
description will include a summary of the facility construction to be 
undertaken; a listing of the major equipment to be purchased or utilized 
in the operation of the facility; the purchase of any land or easements 
necessary to the operation of the facility; and any other

[[Page 229]]

items that the applicant deems pertinent. Any information that the 
applicant considers to be a trade secret shall be identified as such.
    (6) A declaration of the requirement, or requirements, for 
compliance with which the alterations, additions, or methods of 
operation are claimed to be necessary and adequate.
    (i) If the requirement results from a permit issued by EPA or a 
State under section 402 of the Act, the permit number shall be included.
    (ii) If the requirement results from a permit issued by EPA or a 
State for a publicly-owned treatment works, the municipal permit number 
shall be included along with a written declaration from the authorized 
agent for the publicly owned treatment works that received the permit 
detailing the specific pretreatment requirements being placed upon the 
applicant.
    (iii) If the requirement initiates from a plan to include the 
applicant's effluent in an existing municipal sewer system through the 
construction of lateral or interceptor sewers, a written declaration 
from the authorized agent for the publicly owned treatment works shall 
be included noting that the sewer construction is consistent with the 
integrity of the system; will not result in the capacity of the publicly 
owned treatment works being exceeded; and where applicable, is 
consistent with a facilities plan developed under section 201 of the Act 
(see 35 CFR part 917).
    (iv) If the requirement results from a State order, regulation, or 
other enforceable authority controlling pollution from a vessel as 
provided by section 312(f)(3) of the Act, a written declaration from the 
authorized agent of the State specifying the control measures being 
required of the applicant shall be included.
    (v) If the requirement is a result of a permit issued by the Corps 
of Engineers related to permits for dredged or fill material as provided 
by section 404 of the Act, a copy of the permit as issued shall be 
included.
    (vi) If the requirement results from a standard of performance for 
control of sewage from vessels as promulgated by the Coast Guard under 
section 312(b) of the Act, the vessel registration number or 
documentation number shall be included.
    (vii) If the requirement results from a plan to control or prevent 
the discharge or spill of pollutants as identified in section 311 of the 
Act, the title and date of that plan shall be included.
    (viii) If the requirement is the result of an order by a State or an 
areawide management agency controlling the disposal of aqueous 
pollutants so as to protect groundwater, a copy of the order as issued 
shall be included.
    (7) Additionally, if the applicant has received from a State Water 
Pollution Control Agency a permit issued by the State within the 
preceding two years, and if such permit was not issued under the 
authorities of section 402 of the Act, and where the permit directly 
relates to abatement of the discharge for which a statement is sought, a 
copy of that permit shall also be included.

    Comment: Some States under State permit programs, separate and 
distinct from the NPDES permit program under the Act, conduct an 
engineering review of the facilities or equipment that would be used to 
control pollution. The results of such a review would be materially 
helpful in determining the necessity and adequacy of any alterations or 
additions.

    (8) Any written information from a manufacturer, supplier, or 
consulting engineer, or similar independent source, concerning the 
design capabilities of the additions or alterations covered by the 
application, including any warranty limitations or certifications 
obtained from or provided by such sources which would bear upon these 
design or performance capabilities. The Regional Administrator may waive 
the requirement for this paragraph if it appears that there is no 
independent source for the information described herein; as, for 
example, when the applicant has designed and constructed the additions 
or alterations with in-house capability.
    (9) An estimated schedule for the construction or implementation of 
the alterations, additions, or methods of operation.
    (10) An estimated cost of the alterations, additions, or methods of 
operation, and where practicable, the individual costs of major elements 
of the construction to be undertaken.

[[Page 230]]

    (11) Information on previously received loan assistance under this 
section for the facility or method of operation, including a description 
and dates of the activity funded.
    (d) A separate application must be submitted for every addition, 
alteration, or method of operation that is at a separate geographical 
location from the initial application.

    Comment: As an example, a chain has four dry cleaning establishments 
scattered through a community. A separate application would have to be 
filed for each.

    (e) No statement shall be approved for any application that has not 
included the information or declaration requirements imposed by 
paragraph (c)(6) of Sec. 21.3.
    (f) All applications are to be submitted in duplicate.
    (g) All applications are subject to the provisions of 18 U.S.C. 1001 
regarding prosecution for the making of false statements or the 
concealing of material facts.
    (h) Instructional guidelines to assist in the submission of 
applications for EPA certification are available from EPA or a 
certifying State.



Sec. 21.4   Review of application.

    (a) The Regional Administrator or his designee will conduct a review 
of the application. This review will consist of a general assessment of 
the adequacy of the proposed alterations, additions, or methods of 
operation. The review will corroborate that the proposed alterations, 
additions, or methods of operation are required by an applicable 
standard. The review will identify any proposed alterations, additions, 
or methods of operation that are not required by an applicable standard, 
or that are extraneous to the achievement of an applicable standard.
    (b) The assessment of adequacy will be conducted to ensure that the 
proposed additions, alterations, or methods of operation are sufficient 
to meet one or more applicable standards whether alone or in conjunction 
with other plans. The assessment will not generally examine whether 
other alternatives exist or would be more meritorious from a cost-
effective, efficiency, or technological standpoint.
    (c) An application which proposes additions, alterations, or methods 
of operation whose design, in anticipation of a future requirement, will 
achieve a level of performance above the requirements imposed by a 
presently applicable standard shall be reviewed and approved by EPA or a 
State without prejudice. The amount of financial assistance for such an 
application will be determined by SBA.
    (d) The Regional Administrator shall retain one copy of the 
application and a summary of the action taken on it. Upon completion of 
his review, the Regional Administrator shall return the original 
application along with any other supporting documents or information 
provided to the applicant along with a copy to the appropriate SBA 
district office for processing.



Sec. 21.5   Issuance of statements.

    (a) Upon application by a small business concern pursuant to 
Sec. 21.3 the Regional Administrator will, if he finds that the 
additions, alterations, or methods of operation covered by the 
application are adequate and necessary to comply with an applicable 
standard, issue a written statement to the applicant to that effect, 
within 45 working days following receipt of the application, or within 
45 working days following receipt of all information required to be 
submitted pursuant to Sec. 21.3(c), whichever is later. Such a written 
statement shall be classified as a full approval. If an application is 
deficient in any respect, with regard to the specifications for 
submission listed in Sec. 21.3(c), the Regional Administrator shall 
promptly, but in no event later than 30 working days following receipt 
of the application, notify the applicant of such deficiency.
    (b) (1) If an application contains proposed alterations, additions, 
or methods of operation that are adequate and necessary to comply with 
an applicable standard but also contains proposed alterations, 
additions, or methods of operation that are not necessary to comply with 
an applicable standard, the Regional Administrator shall conditionally 
approve the application within the time limit specified in paragraph (a) 
of this section, and shall also identify in the approval those 
alterations,

[[Page 231]]

additions, or methods of operation that he determines are not necessary.
    (2) Conditional approvals as contained in a statement will satisfy 
the requirements for approval by EPA for those alterations, additions, 
or methods of operation determined to be necessary and adequate. Such 
conditional approvals may be submitted to SBA in satisfaction of the 
requirements of section 7(g)(2)(B) of the Small Business Act.
    (3) Conditional approvals will not satisfy the requirements for 
approval by EPA for those alterations, additions, or methods of 
operation included in the application that are determined not to be 
necessary. Unnecessary alterations, additions, or methods of operation 
are those which are extraneous to the achievement of an applicable 
standard.
    (4) Conditional approvals may be appealed to the Deputy 
Administrator by an applicant in accordance with the procedures 
identified in Sec. 21.8.
    (c) If the Regional Administrator determines that the additions, 
alterations, or methods of operation covered by an application are not 
necessary and adequate to comply with an applicable standard, he shall 
disapprove the application and shall so advise the applicant of such 
determination within the time limit specified in paragraph (a) of this 
section, and shall state in writing the reasons for his determination.
    (d) Any application shall be disapproved if the Regional 
Administrator determines that the proposed addition, alteration, or 
method of operation would result in the violation of any other 
requirement of this Act, or of any other Federal or State law or 
regulation with respect to the protection of the environment.
    (e) An applicant need not demonstrate that its facility or method of 
operation will meet all applicable requirements established under the 
Act. The applicant need only demonstrate that the additions, 
alterations, or methods of operation will assist in ensuring compliance 
with one or more of the applicable standards for which financial 
assistance is being requested.

    Comment: As an example, a small business has two discharge pipes--
one for process water, the other for cooling water. The application for 
loan assistance is to control pollution from the process water 
discharge. However, EPA or a State may review the applicant's situation 
and identify for SBA that the applicant is subject to other requirements 
for which the applicant has not sought assistance.

    (f) An application should not include major alternative designs 
significantly differing in scope, concept, or capability. It is expected 
that the applicant at the time of submission will have selected the most 
appropriate or suitable design for the addition, alteration, or method 
of operation.
    (g) EPA will not provide assistance in the form of engineering, 
design, planning or other technical services to any applicant in the 
preparation of his application.
    (h) An applicant may be issued a certification for additions, 
alterations, or methods of operation constructed or undertaken before 
loan assistance was applied for by the applicant. Any such applications 
would be reviewed by SBA for eligibility under SBA criteria, including 
refinancing and loan exposure.



Sec. 21.6   Exclusions.

    (a) Statements shall not be issued for applications in the following 
areas:
    (1) Local requirements. Applications for statements for additions, 
alterations, or methods of operation that result from requirements 
imposed by municipalities, counties or other forms of local or regional 
authorities and governments, except for areawide management agencies 
designated and approved under section 208 of the Act, shall not be 
approved; except for those requirements resulting from the application 
of pretreatment requirements under section 307(b) of the Act; or those 
resulting from an approved project for facilities plans, and developed 
under section 201 of the Act. (See 35 CFR, subpart E); or under a 
delegation of authority under the Act.
    (2) Cost recovery and user charges. Applications for statements 
involving a request for financial assistance in meeting revenue and 
service charges imposed upon a small business by a municipality 
conforming to regulations governing a user charge or capital cost system 
under section 204(b)(2)

[[Page 232]]

of the Act (see 35 CFR 925-11 and 925-12) shall not be approved.
    (3) New facility sewer construction. Applications for statements 
involving projects that involve the construction of a lateral, 
collection, or interceptor sewer, at a facility that was not in 
existence on October 18, 1972, shall not be approved. Applications for 
additions, alterations, or methods of operation for new facilities that 
do not involve sewer construction are not affected by this preclusion. 
Further, if an applicant is compelled to move as a result of a 
relocation requirement but operated at the facility prior to October 18, 
1972, the cost of construction for a lateral, collection, or interceptor 
sewer can be approved for the new, relocated site. For the purpose of 
this exclusion lateral, collection, or interceptor sewer is determined 
as any sewer transporting waste from a facility or site to any publicly 
owned sewer.
    (4) Other non-water related pollution abatement additions, 
alterations, or methods of operation which are not integral to meeting 
the requirements of the Act, although they may be achieving the 
requirements of another Federal or State law or regulation.

    Comment: An example would be where stack emission controls were 
required on equipment that operated the water pollution control 
facility. This emission control equipment as an integral part of the 
water pollution control systems would be approvable. However, emission 
control equipment for a general purpose incinerator that only 
incidentally burned sewage sludge would not be approvable. The general 
purpose incinerator might also receive loan assistance but under 
separate procedures than those set out for water pollution control.

    (5) Privately owned treatment facility service or user costs. 
Applications for statements involving financial assistance in meeting 
user cost or fee schedules related to participating in a privately owned 
treatment facility not under the ownership or control of the applicant 
shall not be approved.
    (6) Operation and maintenance charges. Applications for statements 
containing a request for financial assistance in meeting the operations 
and maintenance costs of operating the applicant's additions, 
alterations, or methods of operation shall not be approved for any 
elements relating to such areas of cost.
    (7) Evidence of financial responsibility. Applications for 
statements containing a request for financial assistance in meeting any 
requirements relating to evidence of financial responsibility as 
provided in section 311(p) of the Act shall not be approved.
Sec. 21.7  [Reserved]
    Comment: Applications for a statement resulting from a requirement 
to control pollution from non-point sources as identified in section 
304(e)(2)(A-F) of the Act and described in Sec. 21.2(m) will not 
presently be issued a statement under Sec. 21.5 unless the requirement 
is established through a permit under section 402. There is no 
requirement under the current Act that the Federal government control 
pollution from such sources, and the nature and scope of State or 
areawide management agency proposals or programs to control such sources 
cannot be determined at this time. As State and areawide plans for 
control of nonpoint sources being prepared under section 208 of the Act, 
will not be completed for several years, this section is being reserved 
pending a future determination on the eligibility of applications 
relating to non-profit sources to receive a statement under this part.



Sec. 21.8   Resubmission of application.

    (a) A small business concern whose application is disapproved may 
submit an amended or corrected application to the Regional Administrator 
at any time. The applicant shall provide the date of any previous 
application.



Sec. 21.9   Appeals.

    (a) An applicant aggrieved by a determination of a Regional 
Administrator under Sec. 21.5 may appeal in writing to the Deputy 
Administrator of the Environmental Protection Agency, within 30 days of 
the date of the determination from which an appeal is taken; Provided, 
That the Deputy Administrator may, on good cause shown, accept an appeal 
at a later time.
    (b) The applicant in requesting such an appeal shall submit to the 
Deputy Administrator a copy of the complete application as reviewed by 
the Regional Administrator.
    (c) The applicant should also provide information as to why it 
believes the determination made by the Regional Administrator to be in 
error.

[[Page 233]]

    (d) The Deputy Administrator shall act upon such appeal within 60 
days of receipt of any complete application for a review of the 
determination.
    (e) Where a State has been delegated certification authority, the 
procedure for appeals shall be established in the State submission 
required in Sec. 21.12.



Sec. 21.10   Utilization of the statement.

    (a) Statements issued by the Regional Administrator will be mailed 
to the small business applicant and to the district office of the Small 
Business Administration serving the geographic area where the business 
is located. It is the responsibility of the applicant to also forward 
the statement to SBA as part of the application for a loan.
    (b) Any statement or determination issued under Sec. 21.5 shall not 
be altered, modified, changed, or destroyed by any applicant in the 
course of providing such statement to SBA. To do so can result in the 
revocation of any approval contained in the statement and subject the 
applicant to the penalties provided in 18 U.S.C. 1001.
    (c) If an application for which a statement is issued under 
Sec. 21.5 is substantively changed in scope, concept, design, or 
capability prior to the approval by SBA of the financial assistance 
requested, the statement as issued shall be revoked. The applicant must 
resubmit a revised application under Sec. 21.3 and a new review must be 
conducted. Failure to meet the requirements of this paragraph could 
subject the applicant to the penalties specified in 18 U.S.C. 1001 and 
18 U.S.C. 286. A substantive change is one which materially affects the 
performance or capability of the proposed addition, alteration, or 
method of operation.
    (d) An agency, Regional Administrator, or State issuing a statement 
under Sec. 21.5 shall retain a complete copy of the application for a 
period of five years after the date of issuance of the statement. The 
application shall be made available upon request for inspection or use 
at any time by any agency of the Federal Government.
    (e) No application for a statement or for financial assistance under 
this section or statement issued under this section shall constitute or 
be construed as suspending, modifying, revising, abrogating or otherwise 
changing the requirements imposed on the applicant by the terms, 
conditions, limitations or schedules of compliance contained in an 
applicable standard, permit, or other provision established or 
authorized under the Act or any State or local statute, ordinance or 
code.
    (f) No statement as issued and reviewed shall be construed as a 
waiver to the applicants fulfilling the requirements of any State or 
local law, statute, ordinance, or code (including building, health, or 
zoning codes).
    (g) An amended application need not be submitted if the facility, 
property, or operation for which the statement is issued is sold, 
leased, rented, or transferred by the applicant to another party prior 
to approval by SBA of the financial assistance: Provided, That there is 
or will be no substantive change in the scope, concept, design, 
capability, or conduct of the facility or operation.

    Comment: However, eligibility for financial assistance would be 
reexamined by SBA with regard to any such sale, lease, rental or 
transfer.

    (h) The Regional Administrator may include in any statement a date 
of expiration, after which date the approval by the Regional 
Administrator contained in the statement shall no longer apply. The date 
of expiration shall not become effective if the applicant has submitted 
the statement to the SBA, prior to the date of expiration, as part of 
the application for financial assistance.



Sec. 21.11   Public participation.

    (a) Applications shall not generally be subject to public notice, 
public comment, or public hearings. Applications during the period of 
review as stated in Sec. 21.5, or during the period of appeal as 
provided in Sec. 21.8, shall be available for public inspection. 
Approved applications as provided in Sec. 21.10(d) shall be available 
for public inspection at all times during the five year period.
    (b) The Regional Administrator, if he believes that the addition, 
alteration, or method of operation may adversely and significantly 
affect an interest of the public, shall provide for a public

[[Page 234]]

notice and/or public hearing on the application. The public notice and/
or public hearing shall be conducted in accordance with the procedures 
specified for a permit under 40 CFR 125.32 and 125.34(b).
    (c) Where the applicant is able to demonstrate to the satisfaction 
of the Regional Administrator that disclosure of certain information or 
parts thereof as provided in Sec. 21.3(c)(5) would result in the 
divulging of methods or processes entitled to protection as trade 
secrets, the Regional Administrator shall treat the information or the 
particular part as confidential in accordance with the purposes of 
section 1905 of Title 18 of the United States Code and not release it to 
any unauthorized person. Provided, however, That if access to such 
information is subsequently requested by any person, there will be 
compliance with the procedures specified in 40 CFR part 2. Such 
information may be disclosed to other officers, employees, or authorized 
representatives of the United States concerned with carrying out the Act 
or when relevant in any proceeding under the Act.



Sec. 21.12   State issued statements.

    (a) Any State after the effective date of these regulations may 
submit to the Regional Administrator for his approval an application to 
conduct a program for issuing statements under this section.
    (1) A State submission shall specify the organizational, legal, 
financial, and administrative resources and procedures that it believes 
will enable it to conduct the program.
    (2) The State program shall constitute an equivalent effort to that 
required of EPA under this section.
    (3) The State organization responsible for conducting the program 
should be the State water pollution control agency, as defined in 
section 502 of the Act.
    (4) The State submission shall propose a procedure for adjudicating 
applicant appeals as provided under Sec. 21.9.
    (5) The State submission shall identify any existing or potential 
conflicts of interest on the part of any personnel who will or may 
review or approve applications.
    (i) A conflict of interest shall exist where the reviewing official 
is the spouse of or dependent (as defined in the Tax Code, 26 U.S.C. 
152) of an owner, partner, or principal officer of the small business, 
or where he has or is receiving from the small business concern 
applicant 10 percent of gross personal income for a calendar year, 
except that it shall mean 50 percent gross personal income for a 
calendar year if the recipient is over 60 years of age and is receiving 
such portion pursuant to retirement, pension, or similar arrangements.
    (ii) If the State is unable to provide alternative parties to review 
or approve any application subject to conflict of interest, the Regional 
Administrator shall review and approve the application.
    (b) The Regional Administrator, within 60 days after such 
application, shall approve any State program that conforms to the 
requirements of this Section. Any such approval shall be after 
sufficient notice has been provided to the Regional Director of SBA.
    (c) If the Regional Administrator disapproves the application, he 
shall notify the State, in writing, of any deficiency in its 
application. A State may resubmit an amended application at any later 
time.
    (d) Upon approval of a State submission, EPA will suspend all review 
of applications and issuance of statements for small businesses in that 
State, pending transferral. Provided, however, That in the event of a 
State conflict of interest as identified in Sec. 21.12(a)(4) of this 
section, EPA shall review the application and issue the statement.
    (e) Any applications shall, if received by an EPA Regional Office, 
be forwarded promptly to the appropriate State for action pursuant to 
section 7(g)(2) of the Small Business Act and these regulations.
    (f) (1) EPA will generally not review or approve individual 
statements issued by a State. However, SBA, upon receipt and review of a 
State approved statement may request the Regional Administrator of EPA 
to review the statement. The Regional Administrator, upon such request 
can further approve or disapprove the State issued

[[Page 235]]

statement, in accordance with the requirements of Sec. 21.5.
    (2) The Regional Administrator will periodically review State 
program performance. In the event of State program deficiencies the 
Regional Administrator will notify the State of such deficiencies.
    (3) During that period that any State's program is classified as 
deficient, statements issued by a State shall also be sent to the 
Regional Administrator for review. The Regional Administrator shall 
notify the State, the applicant, and the SBA of any determination 
subsequently made, in accordance with Sec. 21.5, on any such statement.
    (i) If within 60 days after notice of such deficiencies has been 
provided, the State has not taken corrective efforts, and if the 
deficiencies significantly affect the conduct of the program, the 
Regional Administrator, after sufficient notice has been provided to the 
Regional Director of SBA, shall withdraw the approval of the State 
program.
    (ii) Any State whose program is withdrawn and whose deficiencies 
have been corrected may later reapply as provided in Sec. 21.12(a).
    (g) Funds appropriated under section 106 of the Act may be utilized 
by a State agency authorized to receive such funds in conducting this 
program.



Sec. 21.13  Effect of certification upon authority to enforce applicable standards.

    The certification by EPA or a State for SBA Loan purposes in no way 
constitutes a determination by EPA or the State that the facilities 
certified (a) will be constructed within the time specified by an 
applicable standard or (b) will be constructed and installed in 
accordance with the plans and specifications submitted in the 
application, will be operated and maintained properly, or will be 
applied to process wastes which are the same as described in the 
application. The certification in no way constitutes a waiver by EPA or 
a State of its authority to take appropriate enforcement action against 
the owner or operator of such facilities for violations of an applicable 
standard.



PART 22--CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION OR SUSPENSION OF PERMITS--Table of Contents




                           Subpart A--General

Sec.
22.01  Scope of these rules.
22.02  Use of number and gender.
22.03  Definitions.
22.04  Powers and duties of the Environmental Appeals Board, the 
          Regional Administrator, the Regional Judicial Officer, and the 
          Presiding Officer; disqualification.
22.05  Filing, service, and form of pleadings and documents.
22.06  Filing and service of rulings, orders and decisions.
22.07  Computation and extension of time.
22.08  Ex parte discussion of proceeding.
22.09  Examination of documents filed.

                   Subpart B--Parties and Appearances

22.10  Appearances.
22.11  Intervention.
22.12  Consolidation and severance.

                    Subpart C--Prehearing Procedures

22.13  Issuance of complaint.
22.14  Content and amendment of the complaint.
22.15  Answer to the complaint.
22.16  Motions.
22.17  Default order.
22.18  Informal settlement; consent agreement and order.
22.19  Prehearing conference.
22.20  Accelerated decision; decision to dismiss.

                      Subpart D--Hearing Procedure

22.21  Scheduling the hearing.
22.22  Evidence.
22.23  Objections and offers of proof.
22.24  Burden of presentation; burden of persuasion.
22.25  Filing the transcript.
22.26  Proposed findings, conclusions, and order.

       Subpart E--Initial Decision and Motion to Reopen a Hearing

22.27  Initial decision.
22.28  Motion to reopen a hearing.

[[Page 236]]

              Subpart F--Appeals and Administrative Review

22.29  Appeal from or review of interlocutory orders or rulings.
22.30  Appeal from or review of initial decision.

                    Subpart G--Final Order on Appeal

22.31  Final order on appeal.
22.32  Motion to reconsider a final order.

                      Subpart H--Supplemental Rules

22.33  Supplemental rules of practice governing the administrative 
          assessment of civil penalties under the Toxic Substances 
          Control Act.
22.34  Supplemental rules of practice governing the administrative 
          assessment of civil penalties under Title II of the Clean Air 
          Act.
22.35  Supplemental rules of practice governing the administrative 
          assessment of civil penalties under the Federal Insecticide, 
          Fungicide, and Rodenticide Act.
22.36  Supplemental rules of practice governing the administrative 
          assessment of civil penalties and the revocation or suspension 
          of permits under the Marine Protection, Research, and 
          Sanctuaries Act.
22.37  Supplemental rules of practice governing the administrative 
          assessment of civil penalties under the Solid Waste Disposal 
          Act.
22.38  Supplemental rules of practice governing the administrative 
          assessment of Class II penalties under the Clean Water Act.
22.39  Supplemental rules of practice governing the administrative 
          assessment of administrative penalties under section 109 of 
          the Comprehensive Environmental Response, Compensation, and 
          Liability Act of 1980, as amended.
22.40  Supplemental rules of practice governing the administrative 
          assessment of administrative penalties under section 325 of 
          the Emergency Planning and Community Right-To-Know Act of 1986 
          (EPCRA).
22.41  Supplemental rules of practice governing the administrative 
          assessment of civil penalties under Title II of the Toxic 
          Substances Control Act, enacted as section 2 of the Asbestos 
          Hazard Emergency Response Act (AHERA).
22.42  Supplemental rules of practice governing the administrative 
          assessment of civil penalties for violations of compliance 
          orders issued under Part B of the Safe Drinking Water Act.
22.43  Supplemental rules of practice governing the administrative 
          assessment of civil penalties under section 113(d)(1) of the 
          Clean Air Act.

Appendix to Part 22--Addresses of EPA Regional Offices

    Authority: 15 U.S.C. 2615; 42 U.S.C. 7413(d), 7524(c), 7545(d), 
7547(d), 7601 and 7607(a); 7 U.S.C. 136(l) and (m); 33 U.S.C. 1319, 1415 
and 1418; 42 U.S.C. 6912, 6928 and 6991(e); 42 U.S.C. 9609; 42 U.S.C. 
11045.

    Source: 45 FR 24363, Apr. 9, 1980, unless otherwise noted.



                           Subpart A--General



Sec. 22.01  Scope of these rules.

    (a) These rules of practice govern all adjudicatory proceedings for:
    (1) The assessment of any civil penalty conducted under section 
14(a) of the Federal Insecticide, Fungicide and Rodenticide Act as 
amended (7 U.S.C. 1361(a));
    (2) The assessment of any administrative penalty under sections 
113(d)(1), 205(c), 211(d) and 213(d) of the Clean Air Act, as amended 
(CAA) (42 U.S.C. 7413(d)(1), 7524(c), 7545(d) and 7547(d)).
    (3) The assessment of any civil penalty or for the revocation or 
suspension of any permit conducted under section 105 (a) and (f) of the 
Marine Protection, Research, and Sanctuaries Act as amended (33 U.S.C. 
1415(a));
    (4) The issuance of a compliance order or the issuance of a 
corrective action order, the suspension or revocation of authority to 
operate pursuant to section 3005(e) of the Solid Waste Disposal Act, or 
the assessment of any civil penalty under sections 3008, 9006 and 11005 
of the Solid Waste Disposal Act, as amended (42 U.S.C. 6928, 6991(e) and 
6992(d)), except as provided in 40 CFR parts 24 and 124.
    (5) The assessment of any civil penalty conducted under section 
16(a) of the Toxic Substances Control Act (15 U.S.C. 2615(a));
    (6) The assessment of any Class II penalty under section 309(g) of 
the Clean Water Act (33 U.S.C. 1319(g));
    (7) The assessment of any administrative penalty under section 109 
of the Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980, as amended (42 U.S.C. 9609);
    (8) The assessment of any administrative penalty under section 325 
of the Emergency Planning and Community Right-To-Know Act of 1986 
(EPCRA) (42 U.S.C. 11045).

[[Page 237]]

    (9) The assessment of any civil penalty conducted under section 
1414(g)(3)(B) of the Safe Drinking Water Act as amended (42 U.S.C. 300g-
3(g)(3)(B)).
    (b) The Supplemental rules of practice set forth in subpart H 
establish rules governing those aspects of the proceeding in question 
which are not covered in subparts A through G, and also specify 
procedures which supersede any conflicting procedures set forth in those 
subparts.
    (c) Questions arising at any stage of the proceeding which are not 
addressed in these rules or in the relevant supplementary procedures 
shall be resolved at the discretion of the Administrator, Regional 
Administrator, or Presiding Officer, as appropriate.

[45 FR 24363, Apr. 9, 1980, as amended at 52 FR 30673, Aug. 17, 1987; 53 
FR 12263, Apr. 13, 1988; 54 FR 12371, Mar. 24, 1989; 54 FR 21176, May 
16, 1989; 56 FR 3757, Jan. 30, 1991; 57 FR 4318, Feb. 4, 1992]



Sec. 22.02  Use of number and gender.

    As used in these rules of practice, words in the singular also 
include the plural and words in the masculine gender also include the 
feminine and vice versa, as the case may require.



Sec. 22.03  Definitions.

    (a) The following definitions apply to part 22:
    Act means the particular statute authorizing the institution of the 
proceeding at issue.
    Administrative Law Judge means an Administrative Law Judge appointed 
under 5 U.S.C. 3105 (see also Pub. L. 95-251, 92 Stat. 183).
    Administrator means the Administrator of the U.S. Environmental 
Protection Agency or his delegate.
    Agency means the United States Environmental Protection Agency.
    Complainant means any person authorized to issue a complaint on 
behalf of the Agency to persons alleged to be in violation of the Act. 
The complainant shall not be a member of the Environmental Appeals 
Board, the Regional Judicial Officer, or any other person who will 
participate or advise in the decision.
    Complaint means a written communication, alleging one or more 
violations of specific provisions of the Act, or regulations or a permit 
promulgated thereunder, issued by the complainant to a person under 
Sec. Sec. 22.13 and 22.14.
    Consent Agreement means any written document, signed by the parties, 
containing stipulations or conclusions of fact or law and a proposed 
penalty or proposed revocation or suspension acceptable to both 
complainant and respondent.
    Environmental Appeals Board means the Board within the Agency 
described in Sec. 1.25 of this title, located at U.S. Environmental 
Protection Agency, A-110, 401 M St. SW., Washington, DC 20460.
    Final Order means (a) an order issued by the Administrator after an 
appeal of an initial decision, accelerated decision, decision to 
dismiss, or default order, disposing of a matter in controversy between 
the parties, or (b) an initial decision which becomes a final order 
under Sec. 22.27(c).
    Hearing means a hearing on the record open to the public and 
conducted under these rules of practice.
    Hearing Clerk means the Hearing Clerk, A-110, U.S. Environmental 
Protection Agency, 401 M St. SW., Washington, DC 20460.
    Initial Decision means the decision issued by the Presiding Officer 
based upon the record of the proceedings out of which it arises.
    Party means any person that participates in a hearing as 
complainant, respondent, or intervenor.
    Permit means a permit issued under section 102 of the Marine 
Protection, Research, and Sanctuaries Act.
    Person includes any individual, partnership, association, 
corporation, and any trustee, assignee, receiver or legal successor 
thereof; any organized group of persons whether incorporated or not; and 
any officer, employee, agent, department, agency or instrumentality of 
the Federal Government, of any State or local unit of government, or of 
any foreign government.
    Presiding Officer means the Administrative Law Judge designated by 
the Chief Administrative Law Judge to serve as Presiding Officer, unless 
otherwise specified by any supplemental rules.
    Regional Administrator means the Administrator of any Regional 
Office of

[[Page 238]]

the Agency or any officer or employee thereof to whom his authority is 
duly delegated. Where the Regional Administrator has authorized the 
Regional Judicial Officer to act, the term Regional Administrator shall 
include the Regional Judicial Officer. In a case where the complainant 
is the Assistant Administrator for Enforcement or his delegate, the term 
Regional Administrator as used in these rules shall mean the 
Administrator.
    Regional Hearing Clerk means an individual duly authorized by the 
Regional Administrator to serve as hearing clerk for a given region. 
Correspondence may be addressed to the Regional Hearing Clerk, U.S. 
Environmental Protection Agency (address of Regional Office--see 
appendix). In a case where the complainant is the Assistant 
Administrator for Enforcement or his delegate, the term Regional Hearing 
Clerk as used in these rules shall mean the Hearing Clerk.
    Regional Judicial Officer means a person designated by the Regional 
Administrator under Sec. 22.04(b) to serve as a Regional Judicial 
Officer.
    Respondent means any person proceeded against in the complaint.
    (b) Terms defined in the Act and not defined in these rules of 
practice are used consistent with the meanings given in the Act.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5323, Feb. 13, 1992]



Sec. 22.04  Powers and duties of the Environmental Appeals Board, the Regional Administrator, the Regional Judicial Officer, and the Presiding Officer; 
          disqualification.

    (a) Environmental Appeals Board. The Administrator delegates 
authority under the Act to the Environmental Appeals Board to perform 
the functions assigned to it in these rules of practice. An appeal or 
motion under this part directed to the Administrator, rather than to the 
Environmental Appeals Board, will not be considered. This delegation of 
authority to the Environmental Appeals Board does not preclude the 
Environmental Appeals Board from referring any case or motion governed 
by this part to the Administrator when the Environmental Appeals Board, 
in its direction, deems it appropriate to do so. When an appeal or 
motion is referred to the Administrator, all parties shall be so 
notified and the rules in this part referring to the Environmental 
Appeals Board shall be interpreted as referring to the Administrator. If 
a case or motion is referred to the Administrator by the Environmental 
Appeals Board, the Administrator may consult with any EPA employee 
concerning the matter, provided such consultation does not violate the 
ex parte rules set forth in Sec. 22.08.
    (b) Regional Administrator. The Regional Administrator shall 
exercise all powers and duties as prescribed or delegated under the Act 
and these rules of practice.
    (1) Delegation to Regional Judicial Officer. One or more Regional 
Judicial Officers may be designated by the Regional Administrator to 
perform, within the region of their designation, the functions described 
below. The Regional Administrator may delegate his or her authority to a 
Regional Judicial Officer to act in a given proceeding. This delegation 
will not prevent the Regional Judicial Officer from referring any motion 
or case to the Regional Administrator. The Regional Judicial Officer 
shall exercise all powers and duties prescribed or delegated under the 
Act or these rules of practice.
    (2) Qualifications of Regional Judicial Officer. A Regional Judicial 
Officer shall be an attorney who is a permanent or temporary employee of 
the Agency or some other Federal agency and who may perform other duties 
within the Agency. A Regional Judicial Officer shall not be employed by 
the Region's Enforcement Division or by the Regional Division directly 
associated with the type of violation at issue in the proceeding. A 
Regional Judicial Officer shall not have performed prosecutorial or 
investigative functions in connection with any hearing in which he 
serves as a Regional Judicial Officer or with any factually related 
hearing.
    (c) Presiding Officer. The Presiding Officer shall conduct a fair 
and impartial proceeding, assure that the facts are fully elicited, 
adjudicate all issues, and avoid delay. The Presiding Officer shall have 
authority to:

[[Page 239]]

    (1) Conduct administrative hearings under these rules of practice;
    (2) Rule upon motions, requests, and offers of proof, dispose of 
procedural requests, and issue all necessary orders;
    (3) Administer oaths and affirmations and take affidavits;
    (4) Examine witnesses and receive documentary or other evidence;
    (5) For good cause, upon motion or sua sponte, order a party, or an 
officer or agent thereof, to produce testimony, documents, or other 
nonprivileged evidence, and failing the production thereof without good 
cause being shown, draw adverse inferences against that party;
    (6) Admit or exclude evidence;
    (7) Hear and decide questions of facts, law, or discretion;
    (8) Require parties to attend conferences for the settlement or 
simplification of the issues, or the expedition of the proceedings;
    (9) Issue subpoenas authorized by the Act; and
    (10) Do all other acts and take all measures necessary for the 
maintenance of order and for the efficient, fair and impartial 
adjudication of issues arising in proceedings governed by these rules.
    (d) Disqualification; withdrawal. (1) The Administrator, the 
Regional Administrator, the members of the Environmental Appeals Board, 
the Regional Judicial Officer, or the Presiding Officer may not perform 
functions provided for in these rules of practice regarding any matter 
in which they (i) have a financial interest or (ii) have any 
relationship with a party or with the subject matter which would make it 
inappropriate for them to act. Any party may at any time by motion made 
to the Regional Administrator request that the Regional Judicial Officer 
be disqualified from the proceeding. Any party may at any time by motion 
to the Administrator request that the Regional Administrator, a member 
of the Environmental Appeals Board, or the Presiding Officer be 
disqualified or request that the Administrator disqualify himself or 
herself from the proceeding. The Administrator, the Regional 
Administrator, a member of the Environmental Appeals Board, the Regional 
Judicial Officer, or the Presiding Officer may at any time withdraw from 
any proceeding in which they deem themselves disqualified or unable to 
act for any reason.
    (2) If the Administrator, the Regional Administrator, the Regional 
Judicial Officer, or the Presiding Officer is disqualified or withdraws 
from the proceeding, a qualified individual who has none of the 
infirmities listed in paragraph (d)(1) of this section shall be assigned 
to replace him. Assignment of a replacement for Regional Administrator 
or for the Regional Judicial Officer shall be made by the Administrator 
or the Regional Administrator, respectively. The Administrator, should 
he or she withdraw or disqualify himself or herself, shall assign the 
Regional Administrator from the Region where the case originated to 
replace him or her. If that Regional Administrator would be 
disqualified, the Administrator shall assign a Regional Administrator 
from another region to replace the Administrator. The Regional 
Administrator shall assign a new Presiding Officer if the original 
Presiding Officer was not an Administrative Law Judge. The Chief 
Administrative Law Judge shall assign a new Presiding Officer from among 
available Administrative Law Judges if the original Presiding Officer 
was an Administrative Law Judge.
    (3) The Chief Administrative Law Judge, at any stage in the 
proceeding, may reassign the case to an Administrative Law Judge other 
than the one originally assigned in the event of the unavailability of 
the Administrative Law Judge or where reassignment will result in 
efficiency in the scheduling of hearings and would not prejudice the 
parties.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5324, Feb. 13, 1992; 57 
FR 60129, Dec. 18, 1992]



Sec. 22.05  Filing, service, and form of pleadings and documents.

    (a) Filing of pleadings and documents. (1) Except as otherwise 
provided, the original and one copy of the complaint, and the original 
of the answer and of all other documents served in the proceeding shall 
be filed with the Regional Hearing Clerk.
    (2) A certificate of service shall accompany each document filed or

[[Page 240]]

served. Except as otherwise provided, a party filing documents with the 
Regional Hearing Clerk, after the filing of the answer, shall serve 
copies thereof upon all other parties and the Presiding Officer. The 
Presiding Officer shall maintain a duplicate file during the course of 
the proceeding.
    (3) When the Presiding Officer corresponds directly with the 
parties, the original of the correspondence shall be sent to the 
Regional Hearing Clerk, a copy shall be maintained by the Presiding 
Officer in the duplicate file, and a copy shall be sent to all parties. 
Parties who correspond directly with the Presiding Officer shall in 
addition to serving all other parties send a copy of all such 
correspondence to the Regional Hearing Clerk. A certificate of service 
shall accompany each document served under this subsection.
    (b) Service of pleadings and documents--(1) Service of complaint. 
(i) Service of a copy of the signed original of the complaint, together 
with a copy of these rules of practice, may be made personally or by 
certified mail, return receipt requested, on the respondent (or his 
representative).
    (ii) Service upon a domestic or foreign corporation or upon a 
partnership or other unincorporated association which is subject to suit 
under a common name shall be made by personal service or certified mail, 
as prescribed by paragraph (b)(1)(i) of this section, directed to an 
officer, partner, a managing or general agent, or to any other person 
authorized by appointment or by Federal or State law to receive service 
of process.
    (iii) Service upon an officer or agency of the United States shall 
be made by delivering a copy of the complaint to the officer or agency, 
or in any manner prescribed for service by applicable regulations. If 
the agency is a corporation, the complaint shall be served as prescribed 
in paragraph (b)(1)(ii) of this section.
    (iv) Service upon a State or local unit of government, or a State or 
local officer, agency, department, corporation or other instrumentality 
shall be made by serving a copy of the complaint in the manner 
prescribed by the law of the State for the service of process on any 
such persons, or:
    (A) If upon a State or local unit of government, or a State or local 
department, agency, corporation or other instrumentality, by delivering 
a copy of the complaint to the chief executive officer thereof;
    (B) If upon a State or local officer by delivering a copy to such 
officer.
    (v) Proof of service of the complaint shall be made by affidavit of 
the person making personal service, or by properly executed return 
receipt. Such proof of service shall be filed with the complaint 
immediately upon completion of service.
    (2) Service of documents other than complaint, rulings, orders, and 
decisions. All documents other than the complaint, rulings, orders, and 
decisions, may be served personally or by certified or first class mail.
    (c) Form of pleadings and documents. (1) Except as provided herein, 
or by order of the Presiding Officer or of the Environmental Appeals 
Board, there are no specific requirements as to the form of documents.
    (2) The first page of every pleading, letter, or other document 
shall contain a caption identifying the respondent and the docket number 
which is exhibited on the complaint.
    (3) The original of any pleading, letter or other document (other 
than exhibits) shall be signed by the party filing or by his counsel or 
other representative. The signature constitutes a representation by the 
signer that he has read the pleading, letter or other document, that to 
the best of his knowledge, information and belief, the statements made 
therein are true, and that it is not interposed for delay.
    (4) The initial document filed by any person shall contain his name, 
address and telephone number. Any changes in this information shall be 
communicated promptly to the Regional Hearing Clerk, Presiding Officer, 
and all parties to the proceeding. A party who fails to furnish such 
information and any changes thereto shall be deemed to have waived his 
right to notice and service under these rules.
    (5) The Environmental Appeals Board, the Regional Administrator, the 
Presiding Officer, or the Regional Hearing Clerk may refuse to file any 
document which does not comply with

[[Page 241]]

this paragraph. Written notice of such refusal, stating the reasons 
therefor, shall be promptly given to the person submitting the document. 
Such person may amend and resubmit any document refused for filing upon 
motion granted by the Environmental Appeals Board, the Regional 
Administrator, or the Presiding Officer, as appropriate.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5324, Feb. 13, 1992]



Sec. 22.06  Filing and service of rulings, orders, and decisions.

    All rulings, orders, decisions, and other documents issued by the 
Regional Administrator, Regional Judicial Officer, or Presiding Officer, 
as appropriate, shall be filed with the Regional Hearing Clerk. All such 
documents issued by the Environmental Appeals Board shall be filed with 
the Clerk of the Environmental Appeals Board. Copies of such rulings, 
orders, decisions, or other documents shall be served personally, or by 
certified mail, return receipt requested, upon all parties by the 
Environmental Appeals Board, the Regional Administrator, the Regional 
Judicial Officer, or the Presiding Officer, as appropriate.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5324, Feb. 13, 1992]



Sec. 22.07  Computation and extension of time.

    (a) Computation. In computing any period of time prescribed or 
allowed in these rules of practice, except as otherwise provided, the 
day of the event from which the designated period begins to run shall 
not be included. Saturdays, Sundays, and Federal legal holidays shall be 
included. When a stated time expires on a Saturday, Sunday or legal 
holiday, the stated time period shall be extended to include the next 
business day.
    (b) Extensions of time. The Environmental Appeals Board, the 
Regional Administrator, or the Presiding Officer, as appropriate, may 
grant an extension of time for the filing of any pleading, document, or 
motion (1) upon timely motion of a party to the proceeding, for good 
cause shown, and after consideration of prejudice to other parties, or 
(2) upon its or his own motion. Such a motion by a party may only be 
made after notice to all other parties, unless the movant can show good 
cause why serving notice is impracticable. The motion shall be filed in 
advance of the date on which the pleading, document or motion is due to 
be filed, unless the failure of a party to make timely motion for 
extension of time was the result of excusable neglect.
    (c) Service by mail. Service of the complaint is complete when the 
return receipt is signed. Service of all other pleadings and documents 
is complete upon mailing. Where a pleading or document is served by 
mail, five (5) days shall be added to the time allowed by these rules 
for the filing of a responsive pleading or document.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5324, Feb. 13, 1992]



Sec. 22.08  Ex parte discussion of proceeding.

    At no time after the issuance of the complaint shall the 
Administrator, the members of the Environmental Appeals Board, the 
Regional Administrator, the Regional Judicial Officer, the Presiding 
Officer, or any other person who is likely to advise these officials in 
the decision on the case, discuss ex parte the merits of the proceeding 
with any interested person outside the Agency, with any Agency staff 
member who performs a prosecutorial or investigative function in such 
proceeding or a factually related proceeding, or with any representative 
of such person. Any ex parte memorandum or other communication addressed 
to the Administrator, the Regional Administrator, the Environmental 
Appeals Board, the Regional Judicial Officer, or the Presiding Officer 
during the pendency of the proceeding and relating to the merits 
thereof, by or on behalf of any party shall be regarded as argument made 
in the proceeding and shall be served upon all other parties. The other 
parties shall be given an opportunity to reply to such memorandum or 
communication.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325, Feb. 13, 1992]

[[Page 242]]



Sec. 22.09  Examination of documents filed.

    (a) Subject to the provisions of law restricting the public 
disclosure of confidential information, any person may, during Agency 
business hours, inspect and copy any document filed in any proceeding. 
Such documents shall be made available by the Regional Hearing Clerk, 
the Hearing Clerk, or the Environmental Appeals Board, as appropriate.
    (b) The cost of duplicating documents filed in any proceeding shall 
be borne by the person seeking copies of such documents. The Agency may 
waive this cost in appropriate cases.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325, Feb. 13, 1992]



                   Subpart B--Parties and Appearances



Sec. 22.10  Appearances.

    Any party may appear in person or by counsel or other 
representative. A partner may appear on behalf of a partnership and an 
officer may appear on behalf of a corporation. Persons who appear as 
counsel or other representative must conform to the standards of conduct 
and ethics required of practitioners before the courts of the United 
States.



Sec. 22.11  Intervention.

    (a) Motion. A motion for leave to intervene in any proceeding 
conducted under these rules of practice must set forth the grounds for 
the proposed intervention, the position and interest of the movant and 
the likely impact that intervention will have on the expeditious 
progress of the proceeding. Any person already a party to the proceeding 
may file an answer to a motion to intervene, making specific reference 
to the factors set forth in the foregoing sentence and paragraph (c) of 
this section, within ten (10) days after service of the motion for leave 
to intervene.
    (b) When filed. A motion for leave to intervene in a proceeding must 
ordinarily be filed before the first prehearing conference or, in the 
absence of a prehearing conference, before the initiation of 
correspondence under Sec. 22.19(e), or if there is no such 
correspondence, prior to the setting of a time and place for a hearing. 
Any motion filed after that time must include, in addition to the 
information set forth in paragraph (a) of this section, a statement of 
good cause for the failure to file in a timely manner. The intervenor 
shall be bound by any agreements, arrangements and other matters 
previously made in the proceeding.
    (c) Disposition. Leave to intervene may be granted only if the 
movant demonstrates that (1) his presence in the proceeding would not 
unduly prolong or otherwise prejudice the adjudication of the rights of 
the original parties; (2) the movant will be adversely affected by a 
final order; and (3) the interests of the movant are not being 
adequately represented by the original parties. The intervenor shall 
become a full party to the proceeding upon the granting of leave to 
intervene.
    (d) Amicus curiae. The motion shall identify the interest of the 
applicant and shall state the reasons why the proposed amicus brief is 
desirable. If the motion is granted, the Presiding Officer or 
Administrator shall issue an order setting the time for filing such 
brief. If the motion is granted, the Presiding Officer or the 
Environmental Appeals Board shall issue an order setting the time for 
filing such brief.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325, Feb. 13, 1992]



Sec. 22.12  Consolidation and severance.

    (a) Consolidation. The Presiding Officer may, by motion or sua 
sponte, consolidate any or all matters at issue in two or more 
proceedings docketed under these rules of practice where (1) there 
exists common parties or common questions of fact or law, (2) 
consolidation would expedite and simplify consideration of the issues, 
and (3) consolidation would not adversely affect the rights of parties 
engaged in otherwise separate proceedings.
    (b) Severance. The Presiding Officer may, by motion or sua sponte, 
for good cause shown order any proceedings severed with respect to any 
or all parties or issues.

[[Page 243]]



                    Subpart C--Prehearing Procedures



Sec. 22.13  Issuance of complaint.

    If the complainant has reason to believe that a person has violated 
any provision of the Act, or regulations promulgated or a permit issued 
under the Act, he may institute a proceeding for the assessment of a 
civil penalty by issuing a complaint under the Act and these rules of 
practice. If the complainant has reason to believe that
    (a) A permittee violated any term or condition of the permit, or
    (b) A permittee misrepresented or inaccurately described any 
material fact in the permit application or failed to disclose all 
relevant facts in the permit application, or
    (c) Other good cause exists for such action, he may institute a 
proceeding for the revocation or suspension of a permit by issuing a 
complaint under the Act and these rules of practice. A complaint may be 
for the suspension or revocation of a permit in addition to the 
assessment of a civil penalty.



Sec. 22.14  Content and amendment of the complaint.

    (a) Complaint for the assessment of a civil penalty. Each complaint 
for the assessment of a civil penalty shall include:
    (1) A statement reciting the section(s) of the Act authorizing the 
issuance of the complaint;
    (2) Specific reference to each provision of the Act and implementing 
regulations which respondent is alleged to have violated;
    (3) A concise statement of the factual basis for alleging the 
violation;
    (4) The amount of the civil penalty which is proposed to be 
assessed;
    (5) A statement explaining the reasoning behind the proposed 
penalty;
    (6) Notice of respondent's right to request a hearing on any 
material fact contained in the complaint, or on the appropriateness of 
the amount of the proposed penalty.

A copy of these rules of practice shall accompany each complaint served.
    (b) Complaint for the revocation or suspension of a permit. Each 
complaint for the revocation or suspension of a permit shall include:
    (1) A statement reciting the section(s) of the Act, regulations, 
and/or permit authorizing the issuance of the complaint;
    (2) Specific reference to each term or condition of the permit which 
the respondent is alleged to have violated, to each alleged inaccuracy 
or misrepresentation in respondent's permit application, to each fact 
which the respondent allegedly failed to disclose in his permit 
application, or to other reasons which form the basis for the complaint;
    (3) A concise statement of the factual basis for such allegations;
    (4) A request for an order to either revoke or suspend the permit 
and a statement of the terms and conditions of any proposed partial 
suspension or revocation;
    (5) A statement indicating the basis for recommending the 
revocation, rather than the suspension, of the permit, or vice versa, as 
the case may be;
    (6) Notice of the respondent's right to request a hearing on any 
material fact contained in the complaint, or on the appropriateness of 
the proposed revocation or suspension.

A copy of these rules of practice shall accompany each complaint served.
    (c) Derivation of proposed civil penalty. The dollar amount of the 
proposed civil penalty shall be determined in accordance with any 
criteria set forth in the Act relating to the proper amount of a civil 
penalty and with any civil penalty guidelines issued under the Act.
    (d) Amendment of the complaint. The complainant may amend the 
complaint once as a matter of right at any time before the answer is 
filed. Otherwise the complainant may amend the complaint only upon 
motion granted by the Presiding Officer or Regional Administrator, as 
appropriate. Respondent shall have twenty (20) additional days from the 
date of service of the amended complaint to file his answer.
    (e) Withdrawal of the complaint. The complainant may withdraw the 
complaint, or any part thereof, without prejudice one time before the 
answer has been filed. After one withdrawal before the filing of an 
answer, or after the filing of an answer, the complainant may withdraw 
the complaint, or any part thereof, without prejudice,

[[Page 244]]

only upon motion granted by the Presiding Officer or Regional 
Administrator, as appropriate.



Sec. 22.15  Answer to the complaint.

    (a) General. Where respondent: (1) Contests any material fact upon 
which the complaint is based; (2) contends that the amount of the 
penalty proposed in the complaint or the proposed revocation or 
suspension, as the case may be, is inappropriate; or (3) contends that 
he is entitled to judgment as a matter of law, he shall file a written 
answer to the complaint with the Regional Hearing Clerk. Any such answer 
to the complaint must be filed with the Regional Hearing Clerk within 
twenty (20) days after service of the complaint.
    (b) Contents of the answer. The answer shall clearly and directly 
admit, deny or explain each of the factual allegations contained in the 
complaint with regard to which respondent has any knowledge. Where 
respondent has no knowledge of a particular factual allegation and so 
states, the allegation is deemed denied. The answer shall also state (1) 
the circumstances or arguments which are alleged to constitute the 
grounds of defense, (2) the facts which respondent intends to place at 
issue, and (3) whether a hearing is requested.
    (c) Request for hearing. A hearing upon the issues raised by the 
complaint and answer shall be held upon request of respondent in the 
answer. In addition, a hearing may be held at the discretion of the 
Presiding Officer, sua sponte, if issues appropriate for adjudication 
are raised in the answer.
    (d) Failure to admit, deny, or explain. Failure of respondent to 
admit, deny, or explain any material factual allegation contained in the 
complaint constitutes an admission of the allegation.
    (e) Amendment of the answer. The respondent may amend the answer to 
the complaint upon motion granted by the Presiding Officer.



Sec. 22.16  Motions.

    (a) General. All motions, except those made orally on the record 
during a hearing, shall (1) be in writing; (2) state the grounds 
therefor with particularity; (3) set forth the relief or order sought; 
and (4) be accompanied by any affidavit, certificate, other evidence, or 
legal memorandum relied upon. Such motions shall be served as provided 
by Sec. 22.05(b)(2).
    (b) Response to motions. A party's response to any written motion 
must be filed within ten (10) days after service of such motion, unless 
additional time is allowed for such response. The response shall be 
accompanied by any affidavit, certificate, other evidence, or legal 
memorandum relied upon. If no response is filed within the designated 
period, the parties may be deemed to have waived any objection to the 
granting of the motion. The Presiding Officer, the Regional 
Administrator, or the Environmental Appeals Board, as appropriate, may 
set a shorter time for response, or make such orders concerning the 
disposition of motions as they deem appropriate.
    (c) Decision. Except as provided in Sec. 22.04(d)(1) and 
Sec. 22.28(a), the Regional Administrator shall rule on all motions 
filed or made before an answer to the complaint is filed. The 
Environmental Appeals Board shall rule on all motions filed or made 
after service of the initial decision upon the parties. The 
Administrator shall rule on all motions filed or made after service of 
the initial decision upon the parties. The Presiding Officer shall rule 
on all other motions. Oral argument on motions will be permitted where 
the Presiding Officer, the Regional Administrator, or the Environmental 
Appeals Board considers it necessary or desirable.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325, Feb. 13, 1992; 57 
FR 60129, Dec. 18, 1992]



Sec. 22.17  Default order.

    (a) Default. A party may be found to be in default (1) after motion, 
upon failure to file a timely answer to the complaint; (2) after motion 
or sua sponte, upon failure to comply with a prehearing or hearing order 
of the Presiding Officer; or (3) after motion or sua sponte, upon 
failure to appear at a conference or hearing without good cause being 
shown. No finding of default on the basis of a failure to appear at a 
hearing shall be made against the

[[Page 245]]

respondent unless the complainant presents sufficient evidence to the 
Presiding Officer to establish a prima facie case against the 
respondent. Any motion for a default order shall include a proposed 
default order and shall be served upon all parties. The alleged 
defaulting party shall have twenty (20) days from service to reply to 
the motion. Default by respondent constitutes, for purposes of the 
pending action only, an admission of all facts alleged in the complaint 
and a waiver of respondent's right to a hearing on such factual 
allegations. If the complaint is for the assessment of a civil penalty, 
the penalty proposed in the complaint shall become due and payable by 
respondent without further proceedings sixty (60) days after a final 
order issued upon default. If the complaint is for the revocation or 
suspension of a permit, the conditions of revocation or suspension 
proposed in the complaint shall become effective without further 
proceedings on the date designated by the Administrator in his final 
order issued upon default. Default by the complainant shall result in 
the dismissal of the complaint with prejudice.
    (b) Procedures upon default. When Regional Administrator or 
Presiding Officer finds a default has occurred, he shall issue a default 
order against the defaulting party. This order shall constitute the 
initial decision, and shall be filed with the Regional Hearing Clerk.
    (c) Contents of a default order. A default order shall include 
findings of fact showing the grounds for the order, conclusions 
regarding all material issues of law or discretion, and the penalty 
which is recommended to be assessed or the terms and conditions of 
permit revocation or suspension, as appropriate.
    (d) For good cause shown the Regional Administrator or the Presiding 
Officer, as appropriate, may set aside a default order.



Sec. 22.18  Informal settlement; consent agreement and order.

    (a) Settlement policy. The Agency encourages settlement of a 
proceeding at any time if the settlement is consistent with the 
provisions and objectives of the Act and applicable regulations. The 
respondent may confer with complainant concerning settlement whether or 
not the respondent requests a hearing. Settlement conferences shall not 
affect the respondent's obligation to file a timely answer under 
Sec. 22.16.
    (b) Consent agreement. The parties shall forward a written consent 
agreement and a proposed consent order to the Regional Administrator 
whenever settlement or compromise is proposed. The consent agreement 
shall state that, for the purpose of this proceeding, respondent (1) 
admits the jurisdictional allegations of the complaint; (2) admits the 
facts stipulated in the consent agreement or neither admits nor denies 
specific factual allegations contained in the complaint; and (3) 
consents to the assessment of a stated civil penalty or to the stated 
permit revocation or suspension, as the case may be. The consent 
agreement shall include any and all terms of the agreement, and shall be 
signed by all parties or their counsel or representatives.
    (c) Consent order. No settlement or consent agreement shall dispose 
of any proceeding under these rules of practice without a consent order 
from the Regional Administrator. In preparing such an order, the 
Regional Administrator may require that the parties to the settlement 
appear before him to answer inquiries relating to the consent agreement 
or order.



Sec. 22.19  Prehearing conference.

    (a) Purpose of prehearing conference. Unless a conference appears 
unnecessary, the Presiding Officer, at any time before the hearing 
begins, shall direct the parties and their counsel or other 
representatives to appear at a conference before him to consider:
    (1) The settlement of the case;
    (2) The simplification of issues and stipulation of facts not in 
dispute;
    (3) The necessity or desirability of amendments to pleadings;
    (4) The exchange of exhibits, documents, prepared testimony, and 
admissions or stipulations of fact which will avoid unnecessary proof;
    (5) The limitation of the number of expert or other witnesses;
    (6) Setting a time and place for the hearing; and

[[Page 246]]

    (7) Any other matters which may expedite the disposition of the 
proceeding.
    (b) Exchange of witness lists and documents. Unless otherwise 
ordered by the Presiding Officer, each party at the prehearing 
conference shall make available to all other parties (1) The names of 
the expert and other witnesses he intends to call, together with a brief 
narrative summary of their expected testimony, and (2) copies of all 
documents and exhibits which each party intends to introduce into 
evidence. Documents and exhibits shall be marked for identification as 
ordered by the Presiding Officer. Documents that have not been exchanged 
and witnesses whose names have not been exchanged shall not be 
introduced into evidence or allowed to testify without permission of the 
Presiding Officer. The Presiding Officer shall allow the parties 
reasonable opportunity to review new evidence.
    (c) Record of the prehearing conference. No transcript of a 
prehearing conference relating to settlement shall be made. With respect 
to other prehearing conferences, no transcript of any prehearing 
conferences shall be made unless ordered by the Presiding Officer upon 
motion of a party or sua sponte. The Presiding Officer shall prepare and 
file for the record a written summary of the action taken at the 
conference. The summary shall incorporate any written stipulations or 
agreements of the parties and all rulings and appropriate orders 
containing directions to the parties.
    (d) Location of prehearing conference. The prehearing conference 
shall be held in the county where the respondent resides or conducts the 
business which the hearing concerns, in the city in which the relevant 
Environmental Protection Agency Regional Office is located, or in 
Washington, DC, unless (1) the Presiding Officer determines that there 
is good cause to hold it at another location in a region or by 
telephone, or (2) the Supplemental rules of practice provide otherwise.
    (e) Unavailability of a prehearing conference. If a prehearing 
conference is unnecessary or impracticable, the Presiding Officer, on 
motion or sua sponte, may direct the parties to correspond with him to 
accomplish any of the objectives set forth in this section.
    (f) Other discovery. (1) Except as provided by paragraph (b) of this 
section, further discovery, under this section, shall be permitted only 
upon determination by the Presiding Officer:
    (i) That such discovery will not in any way unreasonably delay the 
proceeding;
    (ii) That the information to be obtained is not otherwise 
obtainable; and
    (iii) That such information has significant probative value.
    (2) The Presiding Officer shall order depositions upon oral 
questions only upon a showing of good cause and upon a finding that:
    (i) The information sought cannot be obtained by alternative 
methods; or
    (ii) There is a substantial reason to believe that relevant and 
probative evidence may otherwise not be preserved for presentation by a 
witness at the hearing.
    (3) Any party to the proceeding desiring an order of discovery shall 
make a motion therefor. Such a motion shall set forth;
    (i) The circumstances warranting the taking of the discovery;
    (ii) The nature of the information expected to be discovered; and
    (iii) The proposed time and place where it will be taken. If the 
Presiding Officer determines that the motion should be granted, he shall 
issue an order for the taking of such discovery together with the 
conditions and terms thereof.
    (4) When the information sought to be obtained is within the control 
of one of the parties, failure to comply with an order issued pursuant 
to this paragraph may lead to (i) the inference that the information to 
be discovered would be adverse to the party from whom the information 
was sought, or (ii) the issuance of a default order under Sec. 22.17(a).



Sec. 22.20  Accelerated decision; decision to dismiss.

    (a) General. The Presiding Officer, upon motion of any party or sua 
sponte, may at any time render an accelerated decision in favor of the 
complainant or the respondent as to all or any part of the proceeding, 
without

[[Page 247]]

further hearing or upon such limited additional evidence, such as 
affidavits, as he may require, if no genuine issue of material fact 
exists and a party is entitled to judgment as a matter of law, as to all 
or any part of the proceeding. In addition, the Presiding Officer, upon 
motion of the respondent, may at any time dismiss an action without 
further hearing or upon such limited additional evidence as he requires, 
on the basis of failure to establish a prima facie case or other grounds 
which show no right to relief on the part of the complainant.
    (b) Effect. (1) If an accelerated decision or a decision to dismiss 
is issued as to all the issues and claims in the proceeding, the 
decision constitutes an initial decision of the Presiding Officer, and 
shall be filed with the Regional Hearing Clerk.
    (2) If an accelerated decision or a decision to dismiss is rendered 
on less than all issues or claims in the proceeding, the Presiding 
Officer shall determine what material facts exist without substantial 
controversy and what material facts remain controverted in good faith. 
He shall thereupon issue an interlocutory order specifying the facts 
which appear substantially uncontroverted, and the issues and claims 
upon which the hearing will proceed.



                      Subpart D--Hearing Procedure



Sec. 22.21  Scheduling the hearing.

    (a) When an answer is filed, the Regional Hearing Clerk shall 
forward the complaint, the answer, and any other documents filed thus 
far in the proceeding to the Chief Administrative Law Judge who shall 
assign himself or another Administrative Law Judge as Presiding Officer, 
unless otherwise provided in the Supplemental rules of practice. The 
Presiding Officer shall then obtain the case file from the Chief 
Administrative Law Judge and notify the parties of his assignment.
    (b) Notice of hearing. If the respondent requests a hearing in his 
answer, or one is ordered by the Presiding Officer under Sec. 22.15(c), 
the Presiding Officer shall serve upon the parties a notice of hearing 
setting forth a time and place for the hearing. The Presiding Officer 
may issue the notice of hearing at any appropriate time, but not later 
than twenty (20) days prior to the date set for the hearing.
    (c) Postponement of hearing. No request for postponement of a 
hearing shall be granted except upon motion and for good cause shown.
    (d) Location of the hearing. The location of the hearing shall be 
determined in accordance with the method for determining the location of 
a prehearing conference under Sec. 22.19(d).



Sec. 22.22  Evidence.

    (a) General. The Presiding Officer shall admit all evidence which is 
not irrelevant, immaterial, unduly repetitious, or otherwise unreliable 
or of little probative value, except that evidence relating to 
settlement which would be excluded in the federal courts under Rule 408 
of the Federal Rules of Evidence is not admissible. In the presentation, 
admission, disposition, and use of evidence, the Presiding Officer shall 
preserve the confidentiality of trade secrets and other commercial and 
financial information. The confidential or trade secret status of any 
information shall not, however, preclude its being introduced into 
evidence. The Presiding Officer may make such orders as may be necessary 
to consider such evidence in camera, including the preparation of a 
supplemental initial decision to address questions of law, fact, or 
discretion which arise out of that portion of the evidence which is 
confidential or which includes trade secrets.
    (b) Examination of witnesses. Witnesses shall be examined orally, 
under oath or affirmation, except as otherwise provided in these rules 
of practice or by the Presiding Officer. Parties shall have the right to 
cross-examine a witness who appears at the hearing provided that such 
cross-examination is not unduly repetitious.
    (c) Verified statements. The Presiding Officer may admit an insert 
into the record as evidence, in lieu of oral testimony, statements of 
fact or opinion prepared by a witness. The admissibility of the evidence 
contained in the statement shall be subject to the same rules as if the 
testimony were produced under oral examination. Before any

[[Page 248]]

such statement is read or admitted into evidence, the witness shall 
deliver a copy of the statement to the Presiding Officer, the reporter, 
and opposing counsel. The witness presenting the statement shall swear 
to or affirm the statement and shall be subject to appropriate oral 
cross-examination upon the contents thereof.
    (d) Admission of affidavits where the witness is unavailable. The 
Presiding Officer may admit into evidence affidavits of witnesses who 
are unavailable. The term ``unavailable'' shall have the meaning 
accorded to it by Rule 804(a) of the Federal Rules of Evidence.
    (e) Exhibits. Where practicable, an original and one copy of each 
exhibit shall be filed with the Presiding Officer for the record and a 
copy shall be furnished to each party. A true copy of any exhibit may be 
substituted for the original.
    (f) Official notice. Official notice may be taken of any matter 
judicially noticed in the Federal courts and of other facts within the 
specialized knowledge and experience of the Agency. Opposing parties 
shall be given adequate opportunity to show that such facts are 
erroneously noticed.



Sec. 22.23  Objections and offers of proof.

    (a) Objection. Any objection concerning the conduct of the hearing 
may be stated orally or in writing during the hearing. The party raising 
the objection must supply a short statement of its grounds. The ruling 
by the Presiding Officer on any objection and the reasons given for it 
shall be part of the record. An exception to each objection overruled 
shall be automatic and is not waived by further participation in the 
hearing.
    (b) Offer of proof. Whenever evidence is excluded from the record, 
the party offering the evidence may make an offer of proof, which shall 
be included in the record. The offer of proof for excluded oral 
testimony shall consist of a brief statement describing the nature of 
the evidence excluded. The offer of proof for excluded documents or 
exhibits shall consist of the insertion in the record of the documents 
or exhibits excluded. Where the Environmental Appeals Board decides that 
the ruling of the Presiding Officer in excluding the evidence was both 
erroneous and prejudicial, the hearing may be reopened to permit the 
taking of such evidence.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325, Feb. 13, 1992]



Sec. 22.24  Burden of presentation; burden of persuasion.

    The complainant has the burden of going forward with and of proving 
that the violation occurred as set forth in the complaint and that the 
proposed civil penalty, revocation, or suspension, as the case may be, 
is appropriate. Following the establishment of a prima facie case, 
respondent shall have the burden of presenting and of going forward with 
any defense to the allegations set forth in the complaint. Each matter 
of controversy shall be determined by the Presiding Officer upon a 
preponderance of the evidence.



Sec. 22.25  Filing the transcript.

    The hearing shall be transcribed verbatim. Promptly following the 
taking of the last evidence, the reporter shall transmit to the Regional 
Hearing Clerk the original and as many copies of the transcript of 
testimony as are called for in the reporter's contract with the Agency, 
and also shall transmit to the Presiding Officer a copy of the 
transcript. A certificate of service shall accompany each copy of the 
transcript. The Regional Hearing Clerk shall notify all parties of the 
availability of the transcript and shall furnish the parties with a copy 
of the transcript upon payment of the cost of reproduction, unless a 
party can show that the cost is unduly burdensome. Any person not a 
party to the proceeding may receive a copy of the transcript upon 
payment of the reproduction fee, except for those parts of the 
transcript order to be kept confidential by the Presiding Officer.



Sec. 22.26  Proposed findings, conclusions, and order.

    Within twenty (20) days after the parties are notified of the 
availability of the transcript, or within such longer time as may be 
fixed by the Presiding Officer, any party may submit for the 
consideration of the Presiding Officer, proposed findings of fact, 
conclusions of law, and a proposed order, together

[[Page 249]]

with briefs in support thereof. The Presiding Officer shall set a time 
by which reply briefs must be submitted. All submissions shall be in 
writing, shall be served upon all parties, and shall contain adequate 
references to the record and authorities relied on.



       Subpart E--Initial Decision and Motion To Reopen a Hearing



Sec. 22.27  Initial decision.

    (a) Filing and contents. The Presiding Officer shall issue and file 
with the Regional Hearing Clerk his initial decision as soon as 
practicable after the period for filing reply briefs under Sec. 22.26 
has expired. The Presiding Officer shall retain a copy of the complaint 
in the duplicate file. The initial decision shall contain his findings 
of fact, conclusions regarding all material issues of law or discretion, 
as well as reasons therefor, a recommended civil penalty assessment, if 
appropriate, and a proposed final order. Upon receipt of an initial 
decision, the Regional Hearing Clerk shall forward a copy to all 
parties, and shall send the original, along with the record of the 
proceeding, to the Hearing Clerk. The Hearing Clerk shall forward a copy 
of the initial decision to the Environmental Appeals Board.
    (b) Amount of civil penalty. If the Presiding Officer determines 
that a violation has occurred, the Presiding Officer shall determine the 
dollar amount of the recommended civil penalty to be assessed in the 
initial decision in accordance with any criteria set forth in the Act 
relating to the proper amount of a civil penalty, and must consider any 
civil penalty guidelines issued under the Act. If the Presiding Officer 
decides to assess a penalty different in amount from the penalty 
recommended to be assessed in the complaint, the Presiding Officer shall 
set forth in the initial decision the specific reasons for the increase 
or decrease. The Presiding Officer shall not raise a penalty from that 
recommended to be assessed in the complaint if the respondent has 
defaulted.
    (c) Effect of initial decision. The initial decision of the 
Presiding Officer shall become the final order of the Environmental 
Appeals Board within forty-five (45) days after its service upon the 
parties and without further proceedings unless (1) an appeal to the 
Environmental Appeals Board is taken from it by a party to the 
proceedings, or (2) the Environmental Appeals Board elects, sua sponte, 
to review the initial decision.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325, Feb. 13, 1992]



Sec. 22.28  Motion to reopen a hearing.

    (a) Filing and content. A motion to reopen a hearing to take further 
evidence must be made no later than twenty (20) days after service of 
the initial decision on the parties and shall (1) state the specific 
grounds upon which relief is sought, (2) state briefly the nature and 
purpose of the evidence to be adduced, (3) show that such evidence is 
not cumulative, and (4) show good cause why such evidence was not 
adduced at the hearing. The motion shall be made to the Presiding 
Officer and filed with the Regional Hearing Clerk.
    (b) Disposition of motion to reopen a hearing. Within ten (10) days 
following the service of a motion to reopen a hearing, any other party 
to the proceeding may file with the Regional Hearing Clerk and serve on 
all other parties an answer thereto. The Presiding Officer shall 
announce his intent to grant or deny such motion as soon as practicable 
thereafter. The conduct of any proceeding which may be required as a 
result of the granting of any motion allowed in this section shall be 
governed by the provisions of the applicable sections of these rules. 
The filing of a motion to reopen a hearing shall automatically stay the 
running of all time periods specified under these Rules until such time 
as the motion is denied or the reopened hearing is concluded.



              Subpart F--Appeals and Administrative Review



Sec. 22.29  Appeal from or review of interlocutory orders or rulings.

    (a) Request for interlocutory appeal. Except as provided in this 
section, appeals to the Environmental Appeals Board shall obtain as a 
matter of right

[[Page 250]]

only from a default order, an accelerated decision or decision to 
dismiss issued under Sec. 22.20(b)(1), or an initial decision rendered 
after an evidentiary hearing. Appeals from other orders or rulings shall 
lie only if the Presiding Officer or Regional Administrator, as 
appropriate, upon motion of a party, certifies such orders or rulings to 
the Environmental Appeals Board on appeal. Requests for such 
certification shall be filed in writing within six (6) days of notice of 
the ruling or service of the order, and shall state briefly the grounds 
to be relied upon on appeal.
    (b) Availability of interlocutory appeal. The Presiding Officer may 
certify any ruling for appeal to the Environmental Appeals Board when 
(1) the order or ruling involves an important question of law or policy 
concerning which there is substantial grounds for difference of opinion, 
and (2) either (i) an immediate appeal from the order or ruling will 
materially advance the ultimate termination of the proceeding, or (ii) 
review after the final order is issued will be inadequate or 
ineffective.
    (c) Decision. If the Environmental Appeals Board determines that 
certification was improvidently granted, or if the Environmental Appeals 
Board takes no action within thirty (30) days of the certification, the 
appeal is dismissed. When the Presiding Officer declines to certify an 
order or ruling to the Environmental Appeals Board on interlocutory 
appeal, it may be reviewed by the Environmental Appeals Board only upon 
appeal from the initial decision, except when the Environmental Appeals 
Board determines, upon motion of a party and in exceptional 
circumstances, that to delay review would be contrary to the public 
interest. Such motion shall be made within six (6) days of service of an 
order of the Presiding Officer refusing to certify a ruling for 
interlocutory appeal to the Environmental Appeals Board. Ordinarily, the 
interlocutory appeal will be decided on the basis of the submissions 
made by the Presiding Officer. The Environmental Appeals Board may, 
however, allow further briefs and oral argument.
    (d) Stay of proceedings. The Presiding Officer may stay the 
proceedings pending a decision by the Environmental Appeals Board upon 
an order or ruling certified by the Presiding Officer for an 
interlocutory appeal. Proceedings will not be stayed except in 
extraordinary circumstances. Where the Presiding Officer grants a stay 
of more than thirty (30) days, such stay must be separately approved by 
the Environmental Appeals Board.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325, Feb. 13, 1992]



Sec. 22.30  Appeal from or review of initial decision.

    (a) Notice of appeal. (1) Any party may appeal an adverse ruling or 
order of the Presiding Officer by filing a notice of appeal and an 
accompanying appellate brief with the Environmental Appeals Board and 
upon all other parties and amicus curiae within twenty (20) days after 
the initial decision is served upon the parties. The notice of appeal 
shall set forth alternative findings of fact, alternative conclusions 
regarding issues of law or discretion, and a proposed order together 
with relevant references to the record and the initial decision. The 
appellant's brief shall contain a statement of the issues presented for 
review, a statement of the nature of the case and the facts relevant to 
the issues presented for review, argument on the issues presented, and a 
short conclusion stating the precise relief sought, together with 
appropriate references to the record.
    (2) Within fifteen (15) days of the service of notices of appeal and 
briefs under paragraph (a)(1) of this section, any other party or amicus 
curiae may file and serve with the Environmental Appeals Board a reply 
brief responding to argument raised by the appellant, together with 
references to the relevant portions of the record, initial decision, or 
opposing brief. Reply briefs shall be limited to the scope of the appeal 
brief. Further briefs shall be filed only with the permission of the 
Environmental Appeals Board.
    (b) Sua sponte review by the Environmental Appeals Board. Whenever 
the Environmental Appeals Board determines sua sponte to review an 
initial decision, the Environmental Appeals Board shall serve notice of 
such intention on the parties within forty-five (45) days after the 
initial decision is served upon

[[Page 251]]

the parties. The notice shall include a statement of issues to be 
briefed by the parties and a time schedule for the service and filing of 
briefs.
    (c) Scope of appeal or review. If the Environmental Appeals Board 
determines that issues raised, but not appealed by the parties, should 
be argued, it shall give counsel for the parties reasonable written 
notice of such determination to permit preparation of adequate argument. 
Nothing herein shall prohibit the Environmental Appeals Board from 
remanding the case to the Presiding Officer for further proceedings.
    (d) Argument before the Environmental Appeals Board. The 
Environmental Appeals Board may, upon request of a party or sua sponte, 
assign a time and place for oral argument after giving consideration to 
the convenience of the parties.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5325, Feb. 13, 1992]



                    Subpart G--Final Order on Appeal



Sec. 22.31  Final order on appeal.

    (a) Contents of the final order. When an appeal has been taken or 
the Environmental Appeals Board issues a notice of intent to conduct a 
review sua sponte, the Environmental Appeals Board shall issue a final 
order as soon as practicable after the filing of all appellate briefs or 
oral argument, whichever is later. The Environmental Appeals Board shall 
adopt, modify, or set aside the findings and conclusions contained in 
the decision or order being reviewed and shall set forth in the final 
order the reasons for its actions. The Environmental Appeals Board may, 
in its discretion, increase or decrease the assessed penalty from the 
amount recommended to be assessed in the decision or order being 
reviewed, except that if the order being reviewed is a default order, 
the Environmental Appeals Board may not increase the amount of the 
penalty.
    (b) Payment of a civil penalty. The respondent shall pay the full 
amount of the civil penalty assessed in the final order within sixty 
(60) days after receipt of the final order unless otherwise agreed by 
the parties. Payment shall be made by forwarding to the Regional Hearing 
Clerk a cashier's check or certified check in the amount of the penalty 
assessed in the final order, payable to the Treasurer, United States of 
America.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326, Feb. 13, 1992]



Sec. 22.32  Motion to reconsider a final order.

    Motions to reconsider a final order shall be filed within ten (10) 
days after service of the final order. Every such motion must set forth 
the matters claimed to have been erroneously decided and the nature of 
the alleged errors. Motions for reconsideration under this provision 
shall be directed to, and decided by, the Environmental Appeals Board. 
Motions for reconsideration directed to the Administrator, rather than 
to the Environmental Appeals Board, will not be considered, except in 
cases that the Environmental Appeals Board has referred to the 
Administrator pursuant to Sec. 22.04(a) and in which the Administrator 
has issued the final order. A motion for reconsideration shall not stay 
the effective date of the final order unless specifically so ordered by 
the Environmental Appeals Board.

[57 FR 5326, Feb. 13, 1992]



                      Subpart H--Supplemental Rules



Sec. 22.33  Supplemental rules of practice governing the administrative assessment of civil penalties under the Toxic Substances Control Act.

    (a) Scope of these Supplemental rules. These Supplemental rules of 
practice shall govern, in conjunction with the preceding consolidated 
rules of practice (40 CFR part 22), all formal adjudications for the 
assessment of any civil penalty conducted under section 16(a) of the 
Toxic Substances Control Act (15 U.S.C. 2615(a)). Where inconsistencies 
exist between these Supplemental rules and the Consolidated rules, 
(Sec. Sec. 22.01 through 22.32), these Supplemental rules shall apply.
    (b) Subpoenas. (1) The attendance of witnesses or the production of 
documentary evidence may be required by subpoena. The Presiding Officer 
may grant a request for a subpoena upon a

[[Page 252]]

showing of (i) the grounds and necessity therefor, and (ii) the 
materiality and relevancy of the evidence to be adduced. Requests for 
the production of documents shall describe the evidence sought as 
specifically as practicable.
    (2) Subpoenas shall be served in accordance with Sec. 22.05(b)(1) of 
the Consolidated Rules of Practice.
    (3) Witnesses summoned before the Presiding Officer shall be paid 
the same fees and mileage that are paid witnesses in the courts of the 
United States. Fees shall be paid by the party at whose instance the 
witness appears. Where a witness appears pursuant to a request initiated 
by the Presiding Officer, fees shall be paid by the agency.



Sec. 22.34  Supplemental rules of practice governing the administrative assessment of civil penalties under title II of the Clean Air Act.

    (a) Scope of these Supplemental rules. These Supplemental rules 
shall govern, in conjunction with the preceding Consolidated Rules of 
Practice (40 CFR part 22), all proceedings to assess a civil penalty 
conducted under sections 205(c), 211(d), and 213(d) of the Clean Air 
Act, as amended (42 U.S.C. 7524(c), 7545(d), and 7547(d)). Where 
inconsistencies exist between these Supplemental rules and the 
Consolidated Rules (Sec. Sec. 22.01 through 22.32), these Supplemental 
rules shall apply.
    (b) Issuance of notice. (1) Prior to the issuance of an 
administrative penalty order assessing a civil penalty, the person to 
whom the order is to be issued shall be given written notice of the 
proposed issuance of the order. Such notice shall be provided by the 
issuance of a complaint pursuant to Sec. 22.13 of the Consolidated Rules 
of Practice.
    (2) Notwithstanding Sec. 22.15(a), any answer to the complaint must 
be filed with the Hearing Clerk within thirty (30) days after service of 
the complaint.
    (c) Subpoenas. (1) The attendance of witnesses or the production of 
documentary evidence may be required by subpoena. The Presiding Officer 
may grant a request for a subpoena upon a showing of;
    (i) The grounds and necessity therefor, and
    (ii) The materiality and relevancy of the evidence to be adduced.

Requests for the production of documents shall describe with specificity 
the documents sought.
    (2) Subpoenas shall be served in accordance with Sec. 22.05(b)(1) of 
the Consolidated Rules of Practice.
    (3) Witnesses summoned before the Presiding Officer shall be paid 
the same fees and mileage that are paid in the courts of the United 
States. Fees shall be paid by the party at whose instance the witness 
appears. Where a witness appears pursuant to a request initiated by the 
Presiding Officer, fees shall be paid by EPA.

[57 FR 4318, Feb. 4, 1992]



Sec. 22.35  Supplemental rules of practice governing the administrative assessment of civil penalties under the Federal Insecticide, Fungicide, and Rodenticide 
          Act.

    (a) Scope of these Supplemental rules. These Supplemental rules of 
practice shall govern, in conjunction with the preceding Consolidated 
Rules of Practice (40 CFR part 22), all formal adjudications for the 
assessment of any civil penalty conducted under section 14(a) of the 
Federal Insecticide, Fungicide, and Rodenticide Act as amended (7 U.S.C. 
1261(a)). Where inconsistencies exist between these Supplemental rules 
and the Consolidated rules, (Sec. Sec. 22.01 through 22.32), these 
Supplemental rules shall apply.
    (b) Venue. The prehearing conference and the hearing shall be held 
in the county, parish, or incorporated city of the residence of the 
person charged, unless otherwise agreed in writing by all parties.
    (c) Evaluation of proposed civil penalty. In determining the dollar 
amount of the recommended civil penalty assessed in the initial 
decision, the Presiding Officer shall consider, in addition to the 
criteria listed in section 14(a)(3) of the Act, (1) respondent's history 
of compliance with the Act or its predecessor statute and (2) any 
evidence of good faith or lack thereof. The Presiding Officer must also 
consider the guidelines for the Assessment of Civil Penalties published 
in the Federal Register (39 FR 27711), and any amendments or supplements 
thereto.

[[Page 253]]



Sec. 22.36  Supplemental rules of practice governing the administrative assessment of civil penalties and the revocation or suspension of permits under the 
          Marine Protection, Research, and Sanctuaries Act.

    (a) Scope of these Supplemental rules. These Supplemental rules 
shall govern, in conjunction with the preceding Consolidated Rules of 
Practice (40 CFR part 22), all formal adjudications conducted under 
section 105(a) or (f) of the Marine Protection, Research, and 
Sanctuaries Act as amended (33 U.S.C. 1415(a) and (f)). Where 
inconsistencies exist between these Supplemental rules and the 
Consolidated Rules, (Sec. Sec. 22.01 through 22.32), these Supplemental 
rules shall apply.
    (b) Additional criterion for the issuance of a complaint for the 
revocation or suspension of a permit. In addition to the three criteria 
listed in 40 CFR 22.13 for issuing a complaint for the revocation or 
suspension of a permit, complaints may be issued on the basis of a 
person's failure to keep records and notify appropriate officials of 
dumping activities, as required by 40 CFR 224.1 and 223.2.



Sec. 22.37  Supplemental rules of practice governing the administrative assessment of civil penalties under the Solid Waste Disposal Act.

    (a) Scope of these Supplemental rules. These Supplemental rules of 
practice shall govern, in conjunction with the preceding Consolidated 
Rules of Practice (40 CFR part 22), all proceedings to assess a civil 
penalty conducted under section 3008 of the Solid Waste Disposal Act (42 
U.S.C. 6928) (the ``Act''). Where inconsistencies exist between these 
Supplemental rules and the Consolidated Rules, (Sec. Sec. 22.01 through 
22.32), these Supplemental rules shall apply.
    (b) Issuance of notice. Whenever, on the basis of any information, 
the Administrator determines that any person is in violation of (1) any 
requirement of subtitle C of the Act, (2) any regulation promulgated 
pursuant to subtitle C of the Act, or (3) a term or condition of a 
permit issued pursuant to subtitle C of the Act, the Administrator shall 
issue notice to the alleged violator of his failure to comply with such 
requirement, regulation or permit.
    (c) Content of notice. Each notice of violation shall include:
    (1) A specific reference to each provision of the Act, regulation, 
or permit term or condition which the alleged violator is alleged to 
have violated; and
    (2) A concise statement of the factual basis for alleging such 
violation.
    (d) Service of notice. Service of notice shall be made in accordance 
with Sec. 22.05(b)(2) of the Consolidated Rules of Practice.
    (e) Issuance of the complaint. (1) Except as provided in paragraph 
(e)(3) of this section, the complainant may issue a complaint whenever 
he has reason to believe that any violation extends beyond the thirtieth 
day after service of the notice of violation.
    (2) The complaint shall include, in addition to the elements stated 
in Sec. 22.14 of the Consolidated Rules, an order requiring compliance 
within a specified time period. The complaint shall be equivalent to the 
compliance order referred to in section 3008 of the Act.
    (3) Whenever a violation is of a non-continuous or intermittent 
nature, the Administrator may issue a complaint, without any prior 
notice to the violator, pursuant to Sec. 22.14 of the Consolidated Rules 
of Practice which may also require the violator to take any and all 
measures necessary to offset all adverse effects to health and the 
environment created, directly or indirectly, as a result of the 
violation.
    (4) Notwithstanding Sec. 22.15(a), any answer to the complaint must 
be filed with the Regional Hearing Clerk within thirty (30) days after 
the filing of the complaint.
    (f) Subpoenas. (1) The attendance of witnesses or the production of 
documentary evidence may be required by subpoena. The Presiding Officer 
may grant a request for a subpoena upon a showing of (i) the grounds and 
necessity therefor, and (ii) the materiality and relevancy of the 
evidence to be adduced. Requests for the production of documents shall 
describe with specificity the documents sought.
    (2) Subpoenas shall be served in accordance with Sec. 22.05(b)(1) of 
the Consolidated Rules of Practice.
    (3) Witnesses summoned before the Presiding Officer shall be paid 
the

[[Page 254]]

same fees and mileage that are paid witnesses in the courts of the 
United States. Fees shall be paid by the party at whose instance the 
witness appears. Where a witness appears pursuant to a request initiated 
by the Presiding Officer, fees shall be paid by the Agency.
    (g) Final Orders to Federal Agencies on Appeal. (1) In the case of 
an administrative order or decision issued to a department, agency, or 
instrumentality of the United States, such order or decision shall 
become the final order for purposes of the Federal Facility Compliance 
Act, 42 U.S.C. 6961(b), in accordance with Sec. Sec. 22.27(c) and 22.31 
except as provided in paragraph (g)(2) of this section.
    (2) In the case of an administrative order or decision issued by the 
Environmental Appeals Board, if the head of the affected department, 
agency, or instrumentality requests a conference with the Administrator 
in writing and serves a copy of the request on the parties of record 
within thirty days of the Environmental Appeals Board's service of the 
order or decision, a decision by the Administrator (rather than the 
Environmental Appeals Board) shall be the final order for the purposes 
of the Federal Facility Compliance Act.
    (3) In the event the department, agency, or instrumentality of the 
United States files a motion for reconsideration with the Environmental 
Appeals Board in accordance with Sec. 22.32, filing such motion for 
reconsideration shall not toll the thirty-day period for filing the 
request with the Administrator for a conference unless specifically so 
ordered by the Environmental Appeals Board.

(42 U.S.C. 6901, et seq.)

[45 FR 24363, Apr. 9, 1980, as amended at 61 FR 11092, Mar. 18, 1996]

    Effective Date Note: At 45 FR 79808, Dec. 2, 1980, paragraphs (b), 
(c), (d), (e)(1) and (3) of Sec. 22.37 were suspended until further 
notice, effective Dec. 2, 1980.



Sec. 22.38  Supplemental rules of practice governing the administrative assessment of Class II penalties under the Clean Water Act.

    (a) Scope of these supplemental rules. These supplemental rules of 
practice shall govern, in conjunction with the preceding Consolidated 
Rules of Practice (40 CFR part 22), administrative proceedings for the 
assessment of any Class II civil penalty under section 309(g) of the 
Clean Water Act (33 U.S.C. 1319(g)).
    (b) Consultation with states. The Administrator will consult with 
the state in which the alleged violation occurs before issuing a final 
order assessing a Class II civil penalty.
    (c) Public notice. Before issuing a final order assessing a Class II 
civil penalty, the Administrator will provide public notice of the 
complaint.
    (d) Comment by a person who is not a party. A person not a party to 
the Class II proceeding who wishes to comment upon a complaint must file 
written comments with the Regional Hearing Clerk within 30 days after 
public notice of the complaint and serve a copy of the comments upon 
each party. For good cause shown the Administrator, the Regional 
Administrator, or the Presiding Officer, as appropriate, may accept late 
comments. The Administrator will give any person who comments on a 
complaint notice of any hearing and notice of the final order assessing 
a penalty. Although commenters may be heard and present evidence at any 
hearing held under section 309(g) of the Act, commenters shall not be 
accorded party status with right of cross examination unless they 
formally move to intervene and are granted party status under 
Sec. 22.11.
    (e) Administrative procedure and judicial review. Action of the 
Administrator for which review could have been obtained under section 
509(b)(1) of the Act shall not be subject to review in an administrative 
proceeding for the assessment of Class II civil penalty under section 
309(g).
    (f) Petitions to set aside an order and to provide a hearing. If no 
hearing on the complaint is held before issuance of an order assessing a 
Class II civil penalty, any person who commented on the complaint may 
petition the Administrator, within 30 days after issuance of the order, 
to set aside the order and to provide a hearing on the complaint. If the 
evidence presented by the petitioner in support of the petition is 
material and was not considered in the issuance of the order, the 
Administrator will immediately set aside the order

[[Page 255]]

and provide a hearing in accordance with the Consolidated Rules of 
Practice and these supplemental rules of practice. If the Administrator 
denies a hearing under section 309(g)(4)(C) of the Act, the 
Administrator will provide to the petitioner, and publish in the Federal 
Register, notice of and the reasons for the denial.

[55 FR 23840, June 12, 1990]



Sec. 22.39  Supplemental rules of practice governing the administrative assessment of administrative penalties under section 109 of the Comprehensive 
          Environmental Response, Compensation, and Liability Act of 
          1980, as amended.

    (a) Scope of these Supplemental rules. These Supplemental rules of 
practice shall govern, in conjunction with the preceding Consolidated 
Rules of Practice (40 CFR part 22), administrative proceedings for the 
assessment of any civil penalty under section 109 of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980, as 
amended (42 U.S.C. 9609). Where inconsistencies exist between these 
Supplemental rules and the Consolidated Rules (Sec. Sec. 22.01 through 
22.32), these Supplemental rules shall apply.
    (b) Subpoenas. (1) The attendance and testimony of witnesses or the 
production of relevant papers, books, and documents may be required by 
subpoena. The Presiding Officer may grant a request for a subpoena upon 
a showing of--
    (i) The grounds and necessity therefor, and
    (ii) The materiality and relevancy of the evidence to be adduced.
Requests for the production of documents shall describe the evidence 
sought as specifically as practicable.
    (2) Subpoenas shall be served in accordance with Sec. 22.05(b)(1) of 
the Consolidated Rules of Practice.
    (3) Witnesses summoned before the Presiding Officer shall be paid 
the same fees and mileage that are paid witnesses in the courts of the 
United States. Fees shall be paid by the party at whose instance the 
witness appears. Where a witness appears pursuant to a request initiated 
by the Presiding Officer, fees shall be paid by the Agency.
    (c) Judicial review. Any person who requested a hearing with respect 
to a Class II civil penalty under section 109 of CERCLA and who is the 
recipient of a final order assessing a civil penalty may file a petition 
for judicial review of such order with the United States Court of 
Appeals for the District of Columbia or for any other circuit in which 
such person resides or transacts business. Any person who requested a 
hearing with respect to a Class I civil penalty under section 109 of 
CERCLA and who is the recipient of a final order assessing the civil 
penalty may file a petition for judicial review of such order with the 
appropriate district court of the United States. All petitions must be 
filed within 30 days of the date the order making the assessment was 
issued.
    (d) Payment of civil penalty assessed. Payment of civil penalties 
finally assessed by the Regional Administrator shall be made by 
forwarding a cashier's check, payable to the ``EPA, Hazardous Substances 
Superfund,'' in the amount assessed, and noting the case title and 
docket number, to the appropriate regional Superfund Lockbox Depository. 
Notice of payment must be sent by Respondent to the Hearing Clerk for 
inclusion as part of the administrative record for the proceeding in 
which the civil penalty was assessed. Interest on overdue payments shall 
be collected pursuant to the Debt Collection Act, 37 U.S.C. 3717.

[54 FR 21176, May 16, 1989]



Sec. 22.40  Supplemental rules of practice governing the administrative assessment of administrative penalties under section 325 of the Emergency Planning and 
          Community Right-To-Know Act of 1986 (EPCRA).

    (a) Scope of these Supplemental Rules. These Supplemental rules of 
practice shall govern, in conjunction with the preceding Consolidated 
Rules of Practice (40 CFR part 22), administrative proceedings for the 
assessment of any civil penalty under section 325 for violations of the 
Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA). 
Where inconsistencies exist between these Supplemental rules and the 
Consolidated Rules, (Sec. Sec. 22.01

[[Page 256]]

through 22.32) these Supplemental rules shall apply.
    (b) Subpoenas. (1) The attendance and testimony of witnesses or the 
production of relevant papers, books, and documents may be required by 
subpoena. The Presiding Officer may grant a request for a subpoena upon 
a showing of (i) the grounds and necessity therefore, and (ii) the 
materiality and relevancy of the evidence to be adduced. Requests for 
the production of documents shall describe the evidence sought as 
specifically as practicable.
    (2) Subpoenas shall be served in accordance with Sec. 22.05(b)(1) of 
the Consolidated Rules of Practice.
    (3) Witnesses summoned before the Presiding Officer shall be paid 
the same fees and mileage that are paid witnesses in the courts of the 
United States. Fees shall be paid by the party at whose instance the 
witness appears. Where a witness appears pursuant to request initiated 
by the Presiding Officer, fees shall be paid by the Agency.
    (c) Judicial review. Any person against whom a civil penalty is 
assessed may seek judicial review in the appropriate district court of 
the United States by filing a notice of appeal and by simultaneously 
sending a copy of such notice by certified mail to the Administrator. 
The notice must be filed within 30 days of the date the order making 
such assessment was issued. The Administrator shall promptly file in 
such court a certified copy of the record upon which such violation was 
found or such penalty imposed.
    (d) Procedures for collection of civil penalty. If any person fails 
to pay an assessment of a civil penalty after it has become a final and 
unappealable order or after the appropriate court has entered final 
judgment in favor of the United States, the Administrator may request 
the Attorney General of the United States to institute a civil action in 
an appropriate district court of the United States to collect the 
penalty, and such court shall have jurisdiction to hear and decide any 
such action. In hearing such action, the court shall have authority to 
review the violation and the assessment of the civil penalty on the 
record. Interest on overdue payments shall be collected pursuant to the 
Debt Collection Act, 37 U.S.C. 3717.

[54 FR 21176, May 16, 1989]



Sec. 22.41  Supplemental rules of practice governing the administrative assessment of civil penalties under Title II of the Toxic Substances Control Act, 
          enacted as section 2 of the Asbestos Hazard Emergency Response 
          Act (AHERA).

    (a) Scope of the Supplemental rules. These Supplemental rules of 
practice shall govern, in conjunction with the preceding Consolidated 
Rules of Practice (40 CFR part 22), all proceedings to assess a civil 
penalty conducted under section 207 of the Toxic Substances Control Act 
(the ``Act'') (15 U.S.C. 2647). Where inconsistencies exist between 
these Supplemental rules and the Consolidated rules (Sec. Sec. 22.01 
through 22.32), these Supplemental rules shall apply.
    (b) Collection of civil penalty. Any civil penalty collected under 
section 207 of the Act shall be used by the local educational agency for 
purposes of complying with Title II of the Act. Any portion of a civil 
penalty remaining unspent after a local educational agency achieves 
compliance shall be deposited into the Asbestos Trust Fund established 
under section 5 of AHERA.

[54 FR 24112, June 5, 1989]



Sec. 22.42  Supplemental rules of practice governing the administrative assessment of civil penalties for violations of compliance orders issued under Part B of 
          the Safe Drinking Water Act.

    (a) Scope of these supplemental rules. These supplemental rules of 
practice shall govern, in conjunction with the preceding Consolidated 
Rules of Practice (40 CFR part 22), all proceedings to assess a civil 
penalty under section 1414(g)(3)(B). Where inconsistencies exist between 
these supplemental rules and the Consolidated rules, these supplemental 
rules shall apply.
    (b) Definition of ``person.'' In addition to the terms set forth in 
40 CFR 22.03(a) that define person, for purposes of this section and 
proceedings under section 1414(g)(3)(B) of the Safe Drinking Water Act, 
the term person shall also include

[[Page 257]]

any officer, employee, or agent of any corporation, company or 
association.
    (c) Issuance of complaint. If the Administrator determines that a 
person has violated any provision of a compliance order issued under 
section 1414(g)(1) of the Safe Drinking Water Act, 42 U.S.C. 300g-
3(g)(1), he may institute a proceeding for the assessment of a civil 
penalty by issuing a complaint under the Act and this part.
    (d) Content of the complaint. A complaint for the assessment of 
civil penalties under this part shall include specific reference to:
    (1) Each provision of the compliance order issued under section 
1414(g)(1) of the Act, 42 U.S.C. 300g-3(g)(1), which is alleged to have 
violated; and
    (2) Each violation of a Safe Drinking Water Act regulation, 
schedule, or other requirement which served as the basis for the 
compliance order which is alleged to have been violated.
    (e) Scope of hearing. Action of the Administrator with respect to 
which judicial review could have been obtained under section 1448 of the 
Safe Drinking Water Act, 42 U.S.C. 300j-7, shall not be subject to 
review in an administrative proceeding for the assessment of a civil 
penalty under section 1414(g)(3)(B) of the SDWA and this part.

[56 FR 3757, Jan. 30, 1991]



Sec. 22.43  Supplemental rules of practice governing the administrative assessment of civil penalties under section 113(d)(1) of the Clean Air Act.

    (a) Scope of these Supplemental rules. These Supplemental rules 
shall govern, in conjunction with the preceding Consolidated Rules of 
Practice (40 CFR part 22), all proceedings to assess a civil penalty 
conducted under section 113(d)(1) of the Clean Air Act (42 U.S.C. 
7413(d)(1)). Where inconsistencies exist between these Supplemental 
rules and the Consolidated Rules (Sec. Sec. 22.01 through 22.32), these 
Supplemental rules shall apply.
    (b) Issuance of notice. (1) Prior to the issuance of an 
administrative penalty order assessing a civil penalty, the person to 
whom the order is to be issued shall be given written notice of the 
proposed issuance of the order. Such
notice shall be provided by the issuance of a complaint pursuant to 
Sec. 22.13 of the Consolidated Rules of Practice.
    (2) Notwithstanding Sec. 22.15(a), any answer to the complaint must 
be filed with the Regional Hearing Clerk within thirty (30) days after 
service of the complaint.
    (c) Subpoenas. (1) The attendance of witnesses or the production of 
documentary evidence may be required by subpoena. The Presiding Officer 
may grant a request for a subpoena upon a showing of;
    (i) The grounds and necessity therefor, and
    (ii) The materiality and relevancy of the evidence to be adduced.

Requests for the production of documents shall describe with specificity 
the documents sought.
    (2) Subpoenas shall be served in accordance with Sec. 22.05(b)(1) of 
the Consolidated Rules of Practice.
    (3) Witnesses summoned before the Presiding Officer shall be paid 
the same fees and mileage that are paid in the courts of the United 
States. Fees shall be paid by the party at whose instance the witness 
appears. Where a witness appears pursuant to a request initiated by the 
Presiding Officer, fees shall be paid by EPA.

[57 FR 4318, Feb. 4, 1992]

         Appendix to Part 22--Addresses of EPA Regional Offices

Region I--John F. Kennedy Federal Building, Boston, MA 02203.
Region II--26 Federal Plaza, New York, NY 10007.
Region III--Curtis Building, 6th and Walnut Streets, Philadelphia, PA 
19106.
Region IV--345 Courtland Street NE., Atlanta, GA 30308.
Region V--230 South Dearborn Street, Chicago, IL 60604.
Region VI--First International Building, 1201 Elm Street, Dallas, TX 
75270.
Region VII--1735 Baltimore Street, Kansas City, MO 64108.
Region VIII--1860 Lincoln Street, Denver, CO 80203.
Region IX--215 Fremont Street, San Francisco, CA 94105.
Region X--1200 6th Avenue, Seattle, WA 98101.

[[Page 258]]



PART 23--JUDICIAL REVIEW UNDER EPA--ADMINISTERED STATUTES--Table of Contents




Sec.
23.1  Definitions.
23.2  Timing of Administrator's action under Clean Water Act.
23.3  Timing of Administrator's action under Clean Air Act.
23.4  Timing of Administrator's action under Resource Conservation and 
          Recovery Act.
23.5  Timing of Administrator's action under Toxic Substances Control 
          Act.
23.6  Timing of Administrator's action under Federal Insecticide, 
          Fungicide and Rodenticide Act.
23.7  Timing of Administrator's action under Safe Drinking Water Act.
23.8  Timing of Administrator's action under Uranium Mill Tailings 
          Radiation Control Act of 1978.
23.9  Timing of Administrator's action under the Atomic Energy Act.
23.10  Timing of Administrator's action under the Federal Food, Drug, 
          and Cosmetic Act.
23.11  Holidays.
23.12  Filing notice of judicial review.

    Authority: Clean Water Act, 33 U.S.C. 1361(a), 1369(b); Clean Air 
Act, 42 U.S.C. 7601(a)(1), 7607(b); Resource, Conservation and Recovery 
Act, 42 U.S.C. 6912(a), 6976; Toxic Substances Control Act, 15 U.S.C. 
2618; Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 
136n(b), 136w(a); Safe Drinking Water Act, 42 U.S.C. 300j-7(a)(2), 300j-
9(a); Atomic Energy Act, 42 U.S.C. 2201, 2239; Federal Food, Drug, and 
Cosmetic Act, 21 U.S.C. 371(a), 346a, 348; 28 U.S.C. 2112(a), 2343, 
2344.

    Source: 50 FR 7270, Feb. 21, 1985, unless otherwise noted.



Sec. 23.1  Definitions.

    As used in this part, the term:
    (a) Federal Register document means a document intended for 
publication in the Federal Register and bearing in its heading an 
identification code including the letters FRL.
    (b) Admininstrator means the Administrator or any official 
exercising authority delegated by the Administrator.
    (c) General Counsel means the General Counsel of EPA or any official 
exercising authority delegated by the General Counsel.

[50 FR 7270, Feb. 21, 1985, as amended at 53 FR 29322, Aug. 3, 1988]



Sec. 23.2  Timing of Administrator's action under Clean Water Act.

    Unless the Administrator otherwise explicity provides in a 
particular promulgation or approval action, the time and date of the 
Administrator's action in promulgation (for purposes of sections 
509(b)(1) (A), (C), and (E)), approving (for purposes of section 
509(b)(1)(E)), making a determination (for purposes of section 509(b)(1) 
(B) and (D), and issuing or denying (for purposes of section 
509(b)(1)(F)) shall be at 1:00 p.m. eastern time (standard or daylight, 
as appropriate) on (a) for a Federal Register document, the date that is 
two weeks after the date when the document is published in the Federal 
Register, or (b) for any other document, two weeks after it is signed.



Sec. 23.3  Timing of Administrator's action under Clean Air Act.

    Unless the Administrator otherwise explicitly provides in a 
particular promulgation, approval, or action, the time and date of such 
promulgation, approval or action for purposes of the second sentence of 
section 307(b)(1) shall be at 1:00 p.m. eastern time (standard or 
daylight, as appropriate) on (a) for a Federal Register document, the 
date when the document is published in the Federal Register, or (b) for 
any other document, two weeks after it is signed.



Sec. 23.4  Timing of Administrator's action under Resource Conservation and Recovery Act.

    Unless the Administrator otherwise explicitly provides in taking a 
particular action, for purposes of section 7006(b), the time and date of 
the Administrator's action in issuing, denying, modifying, or revoking 
any permit under section 3005, or in granting, denying, or withdrawing 
authorization or interim authorization under section 3006, shall be at 
1:00 p.m. eastern time (standard or daylight, as appropriate) on the 
date that is (a) for a Federal Register document, two weeks after the 
date when the document is published in the Federal Register, or (b) for 
any other document, two weeks after it is signed.

[[Page 259]]



Sec. 23.5  Timing of Administrator's action under Toxic Substances Control Act.

    Unless the Administrator otherwise explicitly provides in 
promulgating a particular rule or issuing a particular order, the time 
and date of the Administrator's promulgation or issuance for purposes of 
section 19(a)(1) shall be at 1:00 p.m. eastern time (standard or 
daylight, as appropriate) on the date that is (a) for a Federal Register 
document, two weeks after the date when the document is published in the 
Federal Register, or (b) for any other document, two weeks after it is 
signed.



Sec. 23.6  Timing of Administrator's action under Federal Insecticide, Fungicide and Rodenticide Act.

    Unless the Administrator otherwise explicitly provides in a 
particular order, the time and date of entry of an order issued by the 
Administrator following a public hearing for purposes of section 16(b) 
shall be at 1:00 p.m. eastern time (standard or daylight, as 
appropriate) on the date that is two weeks after it is signed.



Sec. 23.7  Timing of Administrator's action under Safe Drinking Water Act.

    Unless the Administrator otherwise explicitly provides in a 
particular promulgation action or determination, the time and date of 
the Administrator's promulgation, issuance, or determination for 
purposes of section 1448(a)(2) shall be at 1:00 p.m. eastern time 
(standard or daylight, as appropriate) on the date that is (a) for a 
Federal Register document, two weeks after the date when the document is 
published in the Federal Register or (b) for any other document, two 
weeks after it is signed.



Sec. 23.8  Timing of Administrator's action under Uranium Mill Tailings Radiation Control Act of 1978.

    Unless the Administrator otherwise explicitly provides in a 
particular rule, the time and date of the Administrator's promulgation 
for purposes of 42 U.S.C. 2022(c)(2) shall be at 1:00 p.m. eastern time 
(standard or daylight, as appropriate) on the date that is two weeks 
after the date when notice of promulgation is published in the Federal 
Register.



Sec. 23.9  Timing of Administrator's action under the Atomic Energy Act.

    Unless the Administrator otherwise explicitly provides in a 
particular order, the time and date of the entry of an order for 
purposes of 28 U.S.C. 2344 shall be at 1:00 p.m. eastern time (standard 
or daylight, as appropriate) on the date that is two weeks after the 
date when notice thereof is published in the Federal Register.



Sec. 23.10  Timing of Administrator's action under the Federal Food, Drug, and Cosmetic Act.

    Unless the Administrator otherwise explicitly provides in a 
particular order, the time and date of the entry of an order issued 
after a public hearing for purposes of 21 U.S.C. 346a(i) or 348(g) shall 
be at 1:00 p.m. eastern time (standard or daylight, as appropriate) on 
the date that is (a) for a Federal Register document, two weeks after 
the date when the document is published in the Federal Register, or (b) 
for any other document, two weeks after it is signed.



Sec. 23.11  Holidays.

    If the date determined under Sec. Sec. 23.2 to 23.10 falls on a 
Federal holiday, then the time and date of the Administrator's action 
shall be at 1:00 p.m. eastern time on the next day that is not a Federal 
holiday.



Sec. 23.12  Filing notice of judicial review.

    (a) For the purposes of 28 U.S.C. 2112(a), a copy of any petition 
filed in any United States Court of Appeals challenging a final action 
of the Administrator shall be sent by certified mail, return receipt 
requested, or by personal delivery to the General Counsel. The petition 
copy shall be time-stamped by the Clerk of the Court when the original 
is filed with the Court. The petition should be addressed to: 
Correspondence Control Unit, Office of General Counsel (LE-130), U.S. 
Environmental Protection Agency, 401 M Street SW., Washington, DC 20460.
    (b) If the General Counsel receives two or more petitions filed in 
two or more United States Courts of Appeals

[[Page 260]]

for review of any Agency action within ten days of the effective date of 
that action for purposes of judicial review (as specified under 
Sec. Sec. 23.2 through 23.10 of this part), the General Counsel will 
notify the United States Judicial Panel of Multidistrict Litigation of 
any petitions that were received within the ten day period, in 
accordance with the applicable rules of the Panel.
    (c) For purposes of determining whether a petition for review has 
been received within the ten day period under paragraph (b) of this 
section, the petition shall be considered received on the date of 
service, if served personally. If service is accomplished by mail, the 
date of receipt shall be considered to be the date noted on the return 
receipt card.

[53 FR 29322, Aug. 3, 1988]



PART 24--RULES GOVERNING ISSUANCE OF AND ADMINISTRATIVE HEARINGS ON INTERIM STATUS CORRECTIVE ACTION ORDERS--Table of Contents




                           Subpart A--General

Sec.
24.01  Scope of these rules.
24.02  Issuance of initial orders; definition of final orders and orders 
          on consent.
24.03  Maintenance of docket and official record.
24.04  Filing and service of orders, decisions, and documents.
24.05  Response to the initial order; request for hearing.
24.06  Designation of Presiding Officer.
24.07  Informal settlement conference.
24.08  Selection of appropriate hearing procedures.

    Subpart B--Hearings on Orders Requiring Investigations or Studies

24.09  Qualifications of Presiding Officer; ex parte discussion of the 
          proceeding.
24.10  Scheduling the hearing; pre-hearing submissions by respondent.
24.11  Hearing; oral presentations and written submissions by the 
          parties.
24.12  Summary of hearing; Presiding Officer's recommendation.

       Subpart C--Hearings on Orders Requiring Corrective Measures

24.13  Qualifications of Presiding Officer; ex parte discussion of the 
          proceeding.
24.14  Scheduling the hearing; pre-hearing submissions by the parties.
24.15  Hearing; oral presentations and written submissions by the 
          parties.
24.16  Transcript or recording of hearing.
24.17  Presiding Officer's recommendation.

                   Subpart D--Post-Hearing Procedures

24.18  Final decision.
24.19  Final order.
24.20  Final agency action.

    Authority: 42 U.S.C. sections 6912, 6928, 6991b.

    Source: 53 FR 12263, Apr. 13, 1988, unless otherwise noted.



                           Subpart A--General



Sec. 24.01  Scope of these rules.

    (a) These rules establish procedures governing issuance of 
administrative orders for corrective action pursuant to sections 3008(h) 
and 9003(h) of the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act (the Act), and conduct of administrative 
hearings on such orders, except as specified in paragraphs (b) and (c) 
of this section.
    (b) The hearing procedures appearing at 40 CFR part 22 govern 
administrative hearings on any order issued pursuant to section 3008(h) 
of the Act which:
    (1) Is contained within an administrative order that includes claims 
under section 3008(a) of the Act; or
    (2) Includes a suspension or revocation of authorization to operate 
under section 3005(e) of the Act; or
    (3) Seeks penalties under section 3008(h)(2) of the Act for non-
compliance with a section 3008(h) order.
    (c) The hearing procedures appearing at 40 CFR part 22 govern 
administrative hearings on any order issued pursuant to section 9003(h) 
of the Act that is contained within an administrative order that 
includes claims under section 9006 of the Act.
    (d) Questions arising at any stage of the proceeding which are not 
addressed in these rules shall be resolved at the discretion of the 
Regional Administrator or Presiding Officer, as appropriate.

[53 FR 12263, Apr. 13, 1988, as amended at 56 FR 49380, Sept. 27, 1991]

[[Page 261]]



Sec. 24.02  Issuance of initial orders; definition of final orders and orders on consent.

    (a) An administrative action under section 3008(h) or 9003(h) of the 
Act shall be commenced by issuance of an administrative order. When the 
order is issued unilaterally, the order shall be referred to as an 
initial administrative order and may be referenced as a proceeding under 
section 3008(h) or 9003(h) of the Act. When the order has become 
effective, either after issuance of a final order following a final 
decision by the Regional Administrator, or after thirty days from 
issuance if no hearing is requested, the order shall be referred to as a 
final administrative order. Where the order is agreed to by the parties, 
the order shall be denominated as a final administrative order on 
consent.
    (b) The initial administrative order shall be executed by an 
authorized official of EPA (petitioner), other than the Regional 
Administrator or the Assistant Administrator for the Office of Solid 
Waste and Emergency Response. For orders issued by EPA Headquarters, 
rather than by a Regional office, all references in these procedures to 
the Regional Administrator shall be understood to be to the Assistant 
Administrator for Solid Waste and Emergency Response or his delegatee.
    (c) The initial administrative order shall contain:
    (1) A reference to the legal authority pursuant to which the order 
is issued,
    (2) A concise statement of the factual basis upon which the order is 
issued, and
    (3) Notification of respondent's right to request a hearing with 
respect to any issue of material fact or the appropriateness of the 
proposed corrective action.

[53 FR 12263, Apr. 13, 1988, as amended at 56 FR 49380, Sept. 27, 1991]



Sec. 24.03  Maintenance of docket and official record.

    (a) A Clerk shall be designated by the Regional Administrator to 
receive all initial orders, final orders, decisions, responses, 
memoranda, and documents regarding the order and to maintain the 
official record and docket.
    (b) On or before the date the initial order is served on respondent 
the EPA office issuing the order shall deliver to the Clerk (a copy of) 
the administrative record supporting the findings of fact, 
determinations of law, and relief sought in the initial administrative 
order. This record shall include all relevant documents and oral 
information (which has been reduced to writing), which the Agency 
considered in the process of developing and issuing the order, exclusive 
of privileged internal communications. The administrative record 
delivered to the Clerk must have an index and be available for review in 
the appropriate Agency Regional or Headquarters office during normal 
business hours after the order is issued.



Sec. 24.04  Filing and service of orders, decisions, and documents.

    (a) Filing of orders, decisions, and documents. The original and one 
copy of the initial administrative order, the recommended decision of 
the Presiding Officer, the final decision and the final administrative 
order, and one copy of the administrative record and an index thereto 
must be filed with the Clerk designated for 3008(h) or 9003(h) orders. 
In addition, all memoranda and documents submitted in the proceeding 
shall be filed with the clerk.
    (b) Service of orders, decisions, and rulings. The Clerk (or in the 
case of the initial administrative order, any other designated EPA 
employee) shall arrange for the effectuation of service of the initial 
administrative order, the recommended decision of the Presiding Officer, 
the final decision, and final administrative order. Service of a copy of 
the initial administrative order together with a copy of these 
procedures, the recommended decision of the Presiding Officer, the final 
decision, or a final administrative order, shall be made personally or 
by certified mail, return receipt requested or, if personal service 
cannot be effectuated or certified mail is returned refused or unsigned, 
by regular mail, on the respondent or his representative. The Clerk 
shall serve other documents from the Presiding Officer by regular mail.
    (c) Service of documents filed by the parties. Service of all 
documents, filed

[[Page 262]]

by the parties, shall be made by the parties or their representatives on 
other parties or their representatives and may be regular mail, with the 
original filed with the Clerk. The original of any pleading, letter, or 
other document (other than exhibits) shall be signed by the party filing 
or by his counsel or other representative. The signature constitutes a 
representation by the signer that he has read the pleading, letter, or 
other document, that to the best of his knowledge, information, and 
belief, the statements made therein are true, and that it is not 
interposed for delay.
    (d) Service in general. Service of orders, decisions, rulings, or 
documents by either the Clerk or the parties shall, in the case of a 
domestic or foreign corporation, a partnership, or other unincorporated 
association, which is subject to suit under a common name, be made, as 
prescribed in Sec. 24.04 (b) and (c), upon an officer, partner, managing 
or general agent, or any person authorized by appointment or by Federal 
or State law to receive service of process.
    (e) Effective date of service. Service of the initial administrative 
order and final administrative order is complete upon receipt by 
respondent (or the respondent's agent, attorney, representative or other 
person employed by respondent and receiving such service), personally or 
by certified mail, or upon mailing by regular mail, if personal service 
or service by certified mail cannot be accomplished, in accordance with 
Sec. 24.04(b). Service of all other pleadings and documents is complete 
upon mailing, except as provided in Sec. Sec. 24.10(b) and 24.14(e).

[53 FR 12263, Apr. 13, 1988, as amended at 56 FR 49380, Sept. 27, 1991]



Sec. 24.05  Response to the initial order; request for hearing.

    (a) The initial administrative order becomes a final administrative 
order thirty (30) days after service of the order, unless the respondent 
files with the Clerk within thirty (30) days after service of the order, 
a response to the initial order and requests a hearing.
    (b) The response to the initial order and request for a hearing must 
be in writing and mailed to, or personally served on, the Clerk of the 
Regional office which issued the order.
    (c) The response to the initial order shall specify each factual or 
legal determination, or relief provision in the initial order the 
respondent disputes and shall briefly indicate the basis upon which it 
disputes such determination or provision.
    (d) Respondent may include with its response to the initial order 
and request for a hearing a statement indicating whether it believes the 
subpart B or subpart C hearing procedures should be employed for the 
requested hearing and the reason(s) therefore.



Sec. 24.06  Designation of Presiding Officer.

    Upon receipt of a request for a hearing, the Regional Administrator 
shall designate a Presiding Officer to conduct the hearing and preside 
over the proceedings.



Sec. 24.07  Informal settlement conference.

    The respondent may request an informal settlement conference at any 
time by contacting the appropriate EPA employee, as specified in the 
initial administrative order. A request for an informal conference will 
not affect the respondent's obligations to timely request a hearing. 
Whether or not the respondent requests a hearing, the parties may confer 
informally concerning any aspect of the order. The respondent and 
respondent's representatives shall generally be allowed the opportunity 
at an informal conference to discuss with the appropriate Agency 
technical and legal personnel all aspects of the order, and in 
particular the basis for the determination that a release has occurred 
and the appropriateness of the ordered corrective action.



 Sec. 24.08  Selection of appropriate hearing procedures.

    (a) The hearing procedures set forth in subpart B of this part shall 
be employed for any requested hearing if the initial order directs the 
respondent----
    (1) To undertake only a RCRA Facility Investigation and/or 
Corrective Measures Study, which may include monitoring, surveys, 
testing, information gathering, analyses, and/or studies (including 
studies designed to develop

[[Page 263]]

recommendations for appropriate corrective measures), or
    (2) To undertake such investigations and/or studies and interim 
corrective measures, and if such interim corrective measures are neither 
costly nor technically complex and are necessary to protect human health 
and the environment prior to development of a permanent remedy, or
    (3) To undertake investigations/studies with respect to a release 
from an underground storage tank.
    (b) The hearing procedures set forth in subpart C of this part shall 
be employed if the respondent seeks a hearing on an order directing 
that----
    (1) Corrective measures or such corrective measures together with 
investigations/studies be undertaken, or
    (2) Corrective action or such corrective action together with 
investigations/studies be undertaken with respect to any release from an 
underground storage tank.
    (c) The procedures contained in subparts A and D of this part shall 
be followed regardless of whether the initial order directs the 
respondent to undertake an investigation pursuant to the procedures in 
subpart B of this part, or requires the respondent to implement 
corrective measures pursuant to the procedures in subpart C of this 
part.

[56 FR 49380, Sept. 27, 1991]



    Subpart B--Hearings on Orders Requiring Investigations or Studies



Sec. 24.09  Qualifications of Presiding Officer; ex parte discussion of the proceeding.

    The Presiding Officer shall be either the Regional Judicial Officer 
(as described in 40 CFR 22.04(b)) or another attorney employed by the 
Agency, who has had no prior connection with the case, including the 
performance of any investigative or prosecuting functions. At no time 
after issuance of the initial administrative order and prior to issuance 
of the final order shall the Regional Administrator, Presiding Officer, 
or any person who will advise these officials in the decision on the 
case, discuss ex parte the merits of the proceeding with any interested 
person outside the Agency, with any Agency staff member who performs a 
prosecutorial or investigative function in such proceeding or a 
factually related proceeding, or with any representative of such person. 
If, after issuance of the initial order and prior to issuance of the 
final order, the Regional Administrator, Presiding Officer, or any 
person who will advise these officials in the decision on the case 
receives from or on behalf of any party in an ex parte communication 
information which is relevant to the decision on the case and to which 
other parties have not had an opportunity to respond, a summary of such 
information shall be served on all other parties, who shall have an 
opportunity to reply to same within ten (10) days of service of the 
summary.



Sec. 24.10  Scheduling the hearing; pre-hearing submissions by respondent.

    (a) Date and time for hearing. The Presiding Officer shall establish 
the date, time, location, and agenda for the requested public hearing 
and transmit this information to the parties. Subject to Sec. 24.10(c), 
the hearing shall be scheduled and held within thirty (30) days of the 
Agency's receipt of the request for a public hearing.
    (b) Pre-hearing submissions by respondent. At any time up to five 
(5) business days before the hearing respondent may, but is not required 
to, submit for inclusion in the administrative record information and 
argument supporting respondent's positions on the facts, law and relief, 
as each relates to the order in question. A copy of any information or 
argument submitted by respondent shall be served such that the Clerk and 
petitioner receive same at least five (5) business days before hearing.
    (c) Postponment of hearing. The Presiding Officer may grant an 
extension of time for the conduct of the hearing upon written request of 
either party, for good cause shown, and after consideration of any 
prejudice to other parties. The Presiding Officer may not extend the 
date by which the request for hearing is due under Sec. 24.05(a).
    (d) Location of hearing. The hearing shall be held in the city in 
which the relevant EPA Regional Office is located, unless the Presiding 
Officer determines that there is good cause to hold it in another 
location.

[[Page 264]]



Sec. 24.11  Hearing; oral presentations and written submissions by the parties.

    The Presiding Officer shall conduct the hearing in a fair and 
impartial way, taking action as needed to avoid unnecessary delay, 
exclude redundant material and maintain order during the proceedings. 
Representatives of EPA shall introduce the administrative record and be 
prepared to summarize the basis for the order. The respondent shall have 
a reasonable opportunity to address relevant issues and present its 
views through legal counsel or technical advisors. The Presiding Officer 
may also allow technical and legal discussions and interchanges between 
the parties, including responses to questions to the extent deemed 
appropriate. It is not the Agency's intent to provide EPA or respondent 
an opportunity to engage in direct examination or cross-examination of 
witnesses. The Presiding Officer may address questions to the 
respondent's or EPA's representative(s) during the hearing. Each party 
shall insure that a representative(s) is (are) present at the hearing, 
who is (are) capable of responding to questions and articulating that 
party's position on the law and facts at issue. Where respondent can 
demonstrate that through no fault of its own certain documents 
supportive of its position could not have been submitted before hearing 
in accordance with the requirements of Sec. 24.10(b), it may submit such 
documents at the hearing. Otherwise no new documentary support may be 
submitted at hearing. The Presiding Officer may upon request grant 
petitioner leave to respond to submissions made by respondent pursuant 
to this section or Sec. 24.10(b). The Presiding Officer shall have the 
discretion to order either party to submit additional information 
(including but not limited to posthearing briefs on undeveloped factual, 
technical, or legal matters) in whatever form he deems appropriate 
either at or after the hearing.



Sec. 24.12  Summary of hearing; Presiding Officer's recommendation.

    (a) As soon as practicable after the conclusion of the hearing a 
written summary of the proceeding shall be prepared. This summary shall, 
at a minimum, identify:
    (1) The dates of and known attendees at the hearing; and
    (2) The bases upon which the respondent contested the terms of the 
order.

The summary must be signed by the Presiding Officer.
    (b) The Presiding Officer will evaluate the entire administrative 
record and, on the basis of that review and the representations of EPA 
and respondent at the hearing, shall prepare and file a recommended 
decision with the Regional Administrator. The recommended decision must 
address all material issues of fact or law properly raised by 
respondent, and must recommend that the order be modified, withdrawn or 
issued without modification. The recommended decision must provide an 
explanation with citation to material contained in the record for any 
decision to modify a term of the order, to issue the order without 
change, or to withdraw the order. The recommended decision shall be 
based on the administrative record. If the Presiding Officer finds that 
any contested relief provision in the order is not supported by a 
preponderance of the evidence in the record, the Presiding Officer shall 
recommend that the order be modified and issued on terms that are 
supported by the record or withdrawn.
    (c) At any time within twenty-one (21) days of service of the 
recommended decision on the parties, the parties may file comments on 
the recommended decision with the Clerk. The Clerk shall promptly 
transmit any such comments received to the Regional Administrator for 
his consideration in reaching a final decision.



       Subpart C--Hearings on Orders Requiring Corrective Measures



Sec. 24.13  Qualifications of Presiding Officer; ex parte discussion of the proceeding.

    (a) Qualifications of Presiding Officer. The Presiding Officer shall 
be either the Regional Judicial Officer (as described in 40 CFR 
22.04(b)) of another attorney employed by the Agency, who has had no 
prior connection with the

[[Page 265]]

case, including the performance of any investigative or prosecuting 
functions.
    (b) Ex parte discussion of the proceeding. At no time after issuance 
of the initial administrative order and prior to issuance of the final 
order shall the Regional Administrator, Presiding Officer, or any person 
who will advise these officials in the decision on the case, discuss ex 
parte the merits of the proceeding with any interested person outside 
the Agency, with any Agency staff member who performs a prosecutorial or 
investigative function in such proceeding or a factually related 
proceeding, or with any representative of such person. If, after 
issuance of the initial order and prior to issuance of the final order, 
the Regional Administrator, Presiding Officer, or any person who will 
advise these officials in the decision on the case receives from or on 
behalf of any party in an ex parte communication information which is 
relevant to the decision on the case and to which other parties have not 
had an opportunity to respond, a summary of such information shall be 
served on all other parties, who shall have an opportunity to reply to 
same within ten (10) days of service of the summary.



Sec. 24.14  Scheduling the hearing; pre-hearing submissions by the parties.

    (a) The Presiding Officer shall establish an expeditious schedule 
for:
    (1) The submission by respondent of a memorandum, with appropriate 
affidavits and exhibits, stating and supporting respondent's position on 
the facts, law and relief, specifying the bases upon and manner in which 
such determinations or relief provisions, if erroneous, require 
modification or withdrawal of the order:
    (2) Submission of a response by EPA; and
    (3) A public hearing.

Subject to Sec. 24.14(b), a hearing shall be scheduled within 45 days of 
the order setting the schedule. The Presiding Officer shall establish 
the date, time, location and agenda for the hearing and shall transmit 
this information to the parties along with the schedule for the hearing.
    (b) Postponement of the hearing. The Presiding Officer, as 
appropriate, may grant an extension of time for the filing of any 
document, other than a request for a hearing under Sec. 24.05(a), or may 
grant an extension of time for the conduct of the hearing, upon written 
request of either party, for good cause shown and after consideration of 
any prejudice to other parties.
    (c) Respondent's pre-hearing submission. In accordance with the 
schedule set by the Presiding Officer, the respondent shall file a 
memorandum stating and supporting respondent's position on the facts, 
law and relief. The memorandum must identify each factual allegation and 
all issues regarding the appropriateness of the terms of the relief in 
the initial order that respondent contests and for which respondent 
requests a hearing. The memorandum must clearly state respondent's 
position with respect to each such issue. Respondent must also include 
any proposals for modification of the order. The memorandum shall also 
present any arguments on the legal conclusions contained in the order.
    (d) Written questions to EPA. The respondent may file a request with 
the Presiding Officer for permission to submit written questions to the 
EPA Regional Office issuing the order concerning issues of material fact 
in the order.
    (1) Requests shall be accompanied by the proposed questions. In most 
instances, no more than twenty-five (25) questions, including 
subquestions and subparts, may be posed. The request and questions must 
be submitted to the Presiding Officer at least twenty-one (21) days 
before the hearing.
    (2) The Presiding Officer may direct EPA to respond to such 
questions as he designates. In deciding whether or not to direct the 
Agency to respond to written questions the Presiding Officer should 
consider whether such responses are required for full disclosure and 
adequate resolution of the facts. No questions shall be allowed 
regarding privileged internal communications. The Presiding Officer 
shall grant, deny, or modify such requests expeditiously. If a request 
is granted the Presiding Officer may revise questions and may limit the 
number and scope of questions. Questions may be deleted or revised in 
the discretion of the Presiding Officer for reasons, which may include 
the fact

[[Page 266]]

that he finds the questions to be irrelevant, redundant, unnecessary, or 
an undue burden on the Agency. The Presiding Officer shall transmit the 
questions as submitted or as modified to EPA. EPA shall respond to the 
questions within fourteen (14) calendar days of service of the questions 
by the Presiding Officer, unless an extension is granted.
    (e) Submission of additional information. The Presiding Officer 
shall have the discretion to order either party to submit additional 
information (including but not limited to post-hearing briefs on 
undeveloped factual, technical, or legal matters) in whatever form he 
deems appropriate either before, at, or after the hearing. The Presiding 
Officer may issue subpoenas for the attendance and testimony of persons 
and the production of relevant papers, books and documents. Since these 
hearing procedures provide elsewhere that the parties are not to engage 
in direct or cross-examination of witnesses, the subpoena power is to 
serve only as an adjunct to the Presiding Officer's authority to ask 
questions and otherwise take steps to clarify factual matters which are 
in dispute. Upon request of the respondent the Presiding Officer may, in 
his discretion, allow submittal by the respondent of additional 
information in support of its claim, if it is received by the Clerk and 
petitioner at least five (5) business days before the hearing.
    (f) Location of hearing. The hearing shall be held in the city in 
which the relevant EPA Regional Office is located, unless the Presiding 
Officer determines that there is good cause to hold it in another 
location.



Sec. 24.15  Hearing; oral presentations and written submissions by the parties.

    (a) The Presiding Officer shall conduct the hearing in a fair and 
impartial manner, take action to avoid unnecessary delay in the 
disposition of the proceedings, and maintain order. The Presiding 
Officer shall permit oral statements on behalf of the respondent and 
EPA. The Presiding Officer may address questions to the respondent's or 
the EPA's representative(s) during the hearing. Each party shall ensure 
that a representative(s) is (are) present at the hearing, who is (are) 
capable of responding to questions and articulating that party's 
position on the law and facts at issue. Apart from questions by the 
Presiding Officer, no direct examination or cross-examination shall be 
allowed.
    (b) Upon commencement of the hearing, a representative of EPA shall 
introduce the order and record supporting issuance of the order, and 
summarize the basis for the order. The respondent may respond to the 
administrative record and offer any facts, statements, explanations or 
documents which bear on any issue for which the hearing has been 
requested. Any such presentation by respondent may include new documents 
only to the extent that respondent can demonstrate that, through no 
fault of its own, such documents could not have been submitted before 
hearing in accordance with the requirements of Sec. 24.14 (c) and (e). 
The Agency may then present matters solely in rebuttal to matters 
previously presented by the respondent. The Presiding Officer may allow 
the respondent to respond to any such rebuttal submitted. The Presiding 
Officer may exclude repetitive or irrelevant matter. The Presiding 
Officer may upon request grant petitioner leave to respond to 
submissions made by respondent pursuant to this paragraph or 
Sec. 24.14(e).



Sec. 24.16  Transcript or recording of hearing.

    (a) The hearing shall be either transcribed stenographically or tape 
recorded. Upon written request, such transcript or tape recording shall 
be made available for inspection or copying.
    (b) The transcript or recording of the hearing and all written 
submittals filed with the Clerk by the parties subsequent to initial 
issuance of the order including post-hearing submissions will become 
part of the administrative record for the proceeding, for consideration 
by the Presiding Officer and Regional Administrator.



Sec. 24.17  Presiding Officer's recommendation.

    (a) The Presiding Officer will, as soon as practicable after the 
conclusion of

[[Page 267]]

the hearing, evaluate the entire administrative record and, on the basis 
of the administrative record, prepare and file a recommended decision 
with the Regional Administrator. The recommended decision must address 
all material issues of fact or law properly raised by respondent, and 
must recommend that the order be modified, withdrawn or issued without 
modification. The recommended decision must provide an explanation, with 
citation to material contained in the record for any decision to modify 
a term of the order, to issue the order without change or to withdraw 
the order. The recommended decision shall be based on the administrative 
record. If the Presiding Officer finds that any contested relief 
provision in the order is not supported by a preponderance of the 
evidence in the record, the Presiding Officer shall recommend that the 
order be modified and issued on terms that are supported by the record, 
or withdrawn.
    (b) At any time within twenty-one (21) days of service of the 
recommended decision on the parties, the parties may file comments on 
the recommended decision with the Clerk. The Clerk shall promptly 
transmit any such comments received to the Regional Administrator for 
his consideration in reaching a final decision.



                   Subpart D--Post-Hearing Procedures



Sec. 24.18  Final decision.

    As soon as practicable after receipt of the recommended decision, 
the Regional Administrator will either sign or modify such recommended 
decision, and issue it as a final decision. If the Regional 
Administrator modifies the recommended decision, he shall insure that 
the final decision indicates the legal and factual basis for the 
decision as modified. The Regional Administrator's decision shall be 
based on the administrative record.



Sec. 24.19  Final order.

    If the Regional Administrator does not adopt portions of the initial 
order, or finds that modification of the order is necessary, the 
signatory official on the initial administrative order shall modify the 
order in accordance with the terms of the final decision and file and 
serve a copy of the final administrative order. If the Regional 
Administrator finds the initial order appropriate as originally issued, 
the final decision shall declare the initial administrative order to be 
a final order, effective upon service of the final decision. If the 
Regional Administrator declares that the initial order must be 
withdrawn, the signatory official on the initial administrative order 
will file and serve a withdrawal of the initial administrative order. 
This may be done without prejudice.



Sec. 24.20  Final agency action.

    The final decision and the final administrative order are final 
agency actions that are effective on filing and service. These actions 
are not appealable to the Administrator.



PART 25--PUBLIC PARTICIPATION IN PROGRAMS UNDER THE RESOURCE CONSERVATION AND RECOVERY ACT, THE SAFE DRINKING WATER ACT, AND THE CLEAN WATER ACT--Table of Contents




Sec.
25.1  Introduction.
25.2  Scope.
25.3  Policy and objectives.
25.4  Information, notification, and consultation responsibilities.
25.5  Public hearings.
25.6  Public meetings.
25.7  Advisory groups.
25.8  Responsiveness summaries.
25.9  Permit enforcement.
25.10  Rulemaking.
25.11  Work elements in financial assistance agreements.
25.12  Assuring compliance with public participation requirements.
25.13  Coordination and non-duplication.
25.14  Termination of reporting requirements.

    Authority: Sec. 101(e), Clean Water Act, as amended (33 U.S.C. 
1251(e)); sec. 7004(b), Resource Conservation and Recovery Act (42 
U.S.C. 6974(b)); sec. 1450(a)(1), Safe Drinking Water Act, as amended 
(42 U.S.C. 300j-9).

    Source: 44 FR 10292, Feb. 16, 1979, unless otherwise noted.

[[Page 268]]



Sec. 25.1  Introduction.

    This part sets forth minimum requirements and suggested program 
elements for public participation in activities under the Clean Water 
Act (Pub. L. 95-217), the Resource Conservation and Recovery Act (Pub. 
L. 94-580), and the Safe Drinking Water Act (Pub. L. 93-523). The 
applicability of the requirements of this part is as follows:
    (a) Basic requirements and suggested program elements for public 
information, public notification, and public consultation are set forth 
in Sec. 25.4. These requirements are intended to foster public awareness 
and open processes of government decisionmaking. They are applicable to 
all covered activities and programs described in Sec. 25.2(a).
    (b) Requirements and suggested program elements which govern the 
structure of particular public participation mechanisms (for example, 
advisory groups and responsiveness summaries) are set forth in 
Sec. Sec. 25.5, 25.6, 25.7, and 25.8. This part does not mandate the use 
of these public participation mechanisms. It does, however, set 
requirements which those responsible for implementing the mechanisms 
must follow if the mechanisms are required elsewhere in this chapter.
    (c) Requirements which apply to Federal financial assistance 
programs (grants and cooperative agreements) under the three acts are 
set forth in Sec. Sec. 25.10 and 25.12(a).
    (d) Requirements for public involvement which apply to specific 
activities are set forth in Sec. 25.9 (Permit enforcement), Sec. 25.10 
(Rulemaking), and Sec. 25.12 (Assuring compliance with requirements).



Sec. 25.2  Scope.

    (a) The activities under the three Acts which are covered by this 
part are:
    (1) EPA rulemaking, except non-policy rulemaking (for example 
publication of funding allotments under statutory formulas); and State 
rulemaking under the Clean Water Act and Resource Conservation and 
Recovery Act;
    (2) EPA issuance and modification of permits, and enforcement of 
permits as delineated by Sec. 25.9;
    (3) Development by EPA of major informational materials, such as 
citizen guides or handbooks, which are expected to be used over several 
years and which are intended to be widely distributed to the public;
    (4) Development by EPA of strategy and policy guidance memoranda 
when a Deputy Assistant Administrator determines it to be appropriate;
    (5) Development and implementation of plans, programs, standards, 
construction, and other activities supported with EPA financial 
assistance (grants and cooperative agreements) to State, interstate, 
regional and local agencies (herein after referred to as ``State, 
interstate, and substate agencies'');
    (6) The process by which EPA makes a determination regarding 
approval of State administration of the Construction Grants program in 
lieu of Federal administration; and the administration of the 
Construction Grants Program by the State after EPA approval;
    (7) The process by which EPA makes a determination regarding 
approval of State administration of the following programs in lieu of 
Federal administration: The State Hazardous Waste Program; the NPDES 
Permit Program; the Dredge and Fill Permit Program; and the Underground 
Injection Control Program;
    (8) Other activities which the Assistant Administrator for Water and 
Waste Management, the Assistant Administrator for Enforcement, or any 
EPA Regional Administrator deems appropriate in view of the Agency's 
responsibility to involve the public in significant decisions.
    (b) Activities which are not covered by this part, except as 
otherwise provided under (a)(8) or (c) of this section, are activities 
under Parts 33 (Subagreements), 39 (Loan Guarantees for Construction of 
Treatment Works), 40 (Research and Development Grants), 45 (Training 
Grants and Manpower Forecasting) and 46 (Fellowships) of this chapter.
    (c) Some programs covered by these regulations contain further 
provisions concerning public participation. These are found elsewhere in 
this chapter in provisions which apply to the program of interest. 
Regulations which govern

[[Page 269]]

the use and release of public information are set forth in part 2 of 
this chapter.
    (d) Specific provisions of court orders which conflict with 
requirements of this part, such as court-established timetables, shall 
take precedence over the provisions in this part.
    (e) Where the State undertakes functions in the construction grants 
program, the State shall be responsible for meeting these requirements 
for public participation, and any applicable public participation 
requirements found elsewhere in this chapter, to the same extent as EPA.
    (f) Where the State undertakes functions in those programs 
specifically cited in Sec. 25.2(a)(7), the State shall be responsible 
for meeting the requirements for public participation included in the 
applicable regulations governing those State programs. The requirements 
for public participation in State Hazardous Waste Programs, Dredge and 
Fill Permit programs, Underground Injection Control programs and NPDES 
permit programs are found in part 123 of this chapter. These regulations 
embody the substantive requirements of this part.
    (g) These regulations apply to the activities of all agencies 
receiving EPA financial assistance which is awarded after [the effective 
date of final regulations], and to all other covered activities of EPA, 
State, interstate, and substate agencies which occur after that date. 
These regulations will apply to ongoing grants or other covered 
activities upon any significant change in the activity (for example, 
upon a significant proposed increase in project scope of a construction 
grant). Parts 105 (Public Participation in Water Pollution Control) and 
249 (Public Participation in Solid Waste Management) will no longer 
appear in the Code of Federal Regulations; however, they will remain 
applicable, in uncodified form, to grants awarded prior to the effective 
date of this part and to all other ongoing activities.



Sec. 25.3  Policy and objectives.

    (a) EPA, State, interstate, and substate agencies carrying out 
activities described in Sec. 25.2(a) shall provide for, encourage, and 
assist the participation of the public. The term, ``the public'' in the 
broadest sense means the people as a whole, the general populace. There 
are a number of identifiable ``segments of the public'' which may have a 
particular interest in a given program or decision. Interested and 
affected segments of the public may be affected directly by a decision, 
either beneficially or adversely; they may be affected indirectly; or 
they may have some other concern about the decision. In addition to 
private citizens, the public may include, among others, representatives 
of consumer, environmental, and minority associations; trade, 
industrial, agricultural, and labor organizations; public health, 
scientific, and professional societies; civic associations; public 
officials; and governmental and educational associations.
    (b) Public participation is that part of the decision-making process 
through which responsible officials become aware of public attitudes by 
providing ample opportunity for interested and affected parties to 
communicate their views. Public participation includes providing access 
to the decision-making process, seeking input from and conducting 
dialogue with the public, assimilating public viewpoints and 
preferences, and demonstrating that those viewpoints and preferences 
have been considered by the decision-making official. Disagreement on 
significant issues is to be expected among government agencies and the 
diverse groups interested in and affected by public policy decisions. 
Public agencies should encourage full presentation of issues at an early 
stage so that they can be resolved and timely decisions can be made. In 
the course of this process, responsible officials should make special 
efforts to encourage and assist participation by citizens representing 
themselves and by others whose resources and access to decision-making 
may be relatively limited.
    (c) The following are the objectives of EPA, State, interstate, and 
substate agencies in carrying out activities covered by this part:
    (1) To assure that the public has the opportunity to understand 
official programs and proposed actions, and that the government fully 
considers the public's concerns;

[[Page 270]]

    (2) To assure that the government does not make any significant 
decision on any activity covered by this part without consulting 
interested and affected segments of the public;
    (3) To assure that government action is as responsive as possible to 
public concerns;
    (4) To encourage public involvement in implementing environmental 
laws;
    (5) To keep the public informed about significant issues and 
proposed project or program changes as they arise;
    (6) To foster a spirit of openness and mutual trust among EPA, 
States, substate agencies and the public; and
    (7) To use all feasible means to create opportunities for public 
participation, and to stimulate and support participation.



Sec. 25.4  Information, notification, and consultation responsibilities.

    (a) General. EPA, State, interstate, and substate agencies shall 
conduct a continuing program for public information and participation in 
the development and implementation of activities covered by this part. 
This program shall meet the following requirements:
    (b) Information and assistance requirements. (1) Providing 
information to the public is a necessary prerequisite to meaningful, 
active public involvement. Agencies shall design informational 
activities to encourage and facilitate the public's participation in all 
significant decisions covered by Sec. 25.2(a), particularly where 
alternative courses of action are proposed.
    (2) Each agency shall provide the public with continuing policy, 
program, and technical information and assistance beginning at the 
earliest practicable time. Informational materials shall highlight 
significant issues that will be the subject of decision-making. Whenever 
possible, consistent with applicable statutory requirements, the social, 
economic, and environmental consequences of proposed decisions shall be 
clearly stated in such material. Each agency shall identify segments of 
the public likely to be affected by agency decisions and should consider 
targeting informational materials toward them (in addition to the 
materials directed toward the general public). Lengthy documents and 
complex technical materials that relate to significant decisions should 
be summarized for public and media uses. Fact sheets, news releases, 
newsletters, and other similar publications may be used to provide 
notice that materials are available and to facilitate public 
understanding of more complex documents, but shall not be a substitute 
for public access to the full documents.
    (3) Each agency shall provide one or more central collections of 
reports, studies, plans, and other documents relating to controversial 
issues or significant decisions in a convenient location or locations, 
for example, in public libraries. Examples of such documents are 
catalogs of documents available from the agency, grant applications, 
fact sheets on permits and permit applications, permits, effluent 
discharge information, and compliance schedule reports. Copying 
facilities at reasonable cost should be available at the depositories.
    (4) Whenever possible, agencies shall provide copies of documents of 
interest to the public free of charge. Charges for copies should not 
exceed prevailing commercial copying costs. EPA requirements governing 
charges for information and documents provided to the public in response 
to requests made under the Freedom of Information Act are set forth in 
part 2 of this chapter. Consistent with the objectives of Sec. 25.3(b), 
agencies may reserve their supply of free copies for private citizens 
and others whose resources are limited.
    (5) Each agency shall develop and maintain a list of persons and 
organizations who have expressed an interest in or may, by the nature of 
their purposes, activities or members, be affected by or have an 
interest in any covered activity. Generally, this list will be most 
useful where subdivided by area of interest or geographic area. Whenever 
possible, the list should include representatives of the several 
categories of interests listed under Sec. 25.3(a). Those on the list, or 
relevant portions if the list is subdivided, shall receive timely and 
periodic notification of the availability of materials under 
Sec. 25.4(b)(2).
    (c) Public notification. Each agency shall notify interested and 
affected

[[Page 271]]

parties, including appropriate portions of the list required by 
paragraph (b)(5) of this section, and the media in advance of times at 
which major decisions not covered by notice requirements for public 
meetings or public hearings are being considered. Generally, notices 
should include the timetable in which a decision will be reached, the 
issues under consideration, any alternative courses of action or 
tentative determinations which the agency has made, a brief listing of 
the applicable laws or regulations, the location where relevant 
documents may be reviewed or obtained, identification of any associated 
public participation opportunities such as workshops or meetings, the 
name of an individual to contact for additional information, and any 
other appropriate information. All advance notifications under this 
paragraph must be provided far enough in advance of agency action to 
permit time for public response; generally this should not be less than 
30 days.
    (d) Public consultation. For the purposes of this part, ``public 
consultation'' means an exchange of views between governmental agencies 
and interested or affected persons and organizations in order to meet 
the objectives set forth in Sec. 25.3. Requirements for three common 
forms of public consultation (public hearings, public meetings, and 
advisory groups) are set forth in Sec. Sec. 25.5, 25.6, and 25.7. Other 
less formal consultation mechanisms may include but are not limited to 
review groups, ad hoc committees, task forces, workshops, seminars and 
informal personal communications with individuals and groups. Public 
consultation must be preceded by timely distribution of information and 
must occur sufficiently in advance of decision-making to allow the 
agency to assimilate public views into agency action. EPA, State, 
interstate, and substate agencies shall provide for early and continuing 
public consultation in any significant action covered by this part. 
Merely conferring with the public after an agency decision does not meet 
this requirement. In addition to holding hearings and meetings as 
specifically required in this chapter, a hearing or meeting shall be 
held if EPA, the State, interstate, or substate agency determines that 
there is significant public interest or that a hearing or meeting would 
be useful.
    (e) Public information concerning legal proceedings. EPA, State, 
interstate, and substate agencies shall provide full and open 
information on legal proceedings to the extent not inconsistent with 
court requirements, and where such disclosure would not prejudice the 
conduct of the litigation. EPA actions with regard to affording 
opportunities for public comment before the Department of Justice 
consents to a proposed judgment in an action to enjoin discharges of 
pollutants into the environment shall be consistent with the Statement 
of Policy issued by the Department of Justice (see Title 28, CFR, 
Chapter 1, Sec. 50.7).



Sec. 25.5  Public hearings.

    (a) Applicability. Any non-adjudicatory public hearing, whether 
mandatory or discretionary, under the three Acts shall meet the 
following minimum requirements. These requirements are subordinate to 
any more stringent requirements found elsewhere in this chapter or 
otherwise imposed by EPA, State, interstate, or substate agencies. 
Procedures developed for adjudicatory hearings required by this chapter 
shall be consistent with the public participation objectives of this 
part, to the extent practicable.
    (b) Notice. A notice of each hearing shall be well publicized, and 
shall also be mailed to the appropriate portions of the list of 
interested and affected parties required by Sec. 25.4(b)(5). Except as 
otherwise specifically provided elsewhere in this chapter, these actions 
must occur at least 45 days prior to the date of the hearing. However, 
where EPA determines that there are no substantial documents which must 
be reviewed for effective hearing participation and that there are no 
complex or controversial matters to be addressed by the hearing, the 
notice requirement may be reduced to no less than 30 days. EPA may 
further reduce or waive the hearing notice requirement in emergency 
situations where EPA determines that there is an imminent danger to 
public health. To the extent not duplicative, the agency holding the

[[Page 272]]

hearing shall also provide informal notice to all interested persons or 
organizations that request it. The notice shall identify the matters to 
be discussed at the hearing and shall include or be accompanied by a 
discussion of the agency's tentative determination on major issues (if 
any), information on the availability of a bibliography of relevant 
materials (if deemed appropriate), and procedures for obtaining further 
information. Reports, documents and data relevant to the discussion at 
the public hearing shall be available to the public at least 30 days 
before the hearing. Earlier availability of materials relevant to the 
hearing will further assist public participation and is encouraged where 
possible.
    (c) Locations and time. Hearings must be held at times and places 
which, to the maximum extent feasible, facilitate attendance by the 
public. Accessibility of public transportation, and use of evening and 
weekend hearings, should be considered. In the case of actions with 
Statewide interest, holding more than one hearing should be considered.
    (d) Scheduling presentations. The agency holding the hearing shall 
schedule witnesses in advance, when necessary, to ensure maximum 
participation and allotment of adequate time for all speakers. However, 
the agency shall reserve some time for unscheduled testimony and may 
consider reserving blocks of time for major categories of witnesses.
    (e) Conduct of hearing. The agency holding the hearing shall inform 
the audience of the issues involved in the decision to be made, the 
considerations the agency will take into account, the agency's tentative 
determinations (if any), and the information which is particularly 
solicited from the public. The agency should consider allowing a 
question and answer period. Procedures shall not unduly inhibit free 
expression of views (for example, by onerous written statement 
requirements or qualification of witnesses beyond minimum 
identification).
    (f) Record. The agency holding the hearing shall prepare a 
transcript, recording or other complete record of public hearing 
proceedings and make it available at no more than cost to anyone who 
requests it. A copy of the record shall be available for public review.



Sec. 25.6  Public meetings.

    Public meetings are any assemblies or gathering, (such as 
conferences, informational sessions, seminars, workshops, or other 
activities) which the responsible agency intends to be open to anyone 
wishing to attend. Public meetings are less formal than public hearings. 
They do not require formal presentations, scheduling of presentations 
and a record of proceedings. The requirements of Sec. 25.5 (b) and (c) 
are applicable to public meetings, except that the agency holding the 
meeting may reduce the notice to not less than 30 days if there is good 
reason that longer notice cannot be provided.



Sec. 25.7  Advisory groups.

    (a) Applicability. The requirements of this section on advisory 
groups shall be met whenever provisions of this chapter require use of 
an advisory group by State, interstate, or substate agencies involved in 
activities supported by EPA financial assistance under any of the three 
Acts.
    (b) Role. Primary responsibility for decision-making in 
environmental programs is vested by law in the elected and appointed 
officials who serve on public bodies and agencies at various levels of 
government. However, all segments of the public must have the 
opportunity to participate in environmental quality planning. 
Accordingly, where EPA identifies a need for continued attention of an 
informed core group of citizens in relation to activities conducted with 
EPA financial assistance, program regulations elsewhere in this chapter 
will require an advisory group to be appointed by the financially 
assisted agency. Such advisory groups will not be the sole mechanism for 
public participation, but will complement other mechanisms. They are 
intended to assist elected or appointed officials with final decision-
making responsibility by making recommendations to such officials on 
important issues. In addition, advisory groups should foster a 
constructive interchange among the various interests present on the 
group and enhance

[[Page 273]]

the prospect of community acceptance of agency action.
    (c) Membership. (1) The agency receiving financial assistance shall 
assure that the advisory group reflects a balance of interests in the 
affected area. In order to meet this requirement, the assisted agency 
shall take positive action, in accordance with paragraph (c)(3) of this 
section, to establish an advisory group which consists of substantially 
equivalent proportions of the following four groups:
    (i) Private citizens. No person may be included in this portion of 
the advisory group who is likely to incur a financial gain or loss 
greater than that of an average homeowner, taxpayer or consumer as a 
result of any action likely to be taken by the assisted agency.
    (ii) Representatives of public interest groups. A ``public interest 
group'' is an organization which reflects a general civic, social, 
recreational, environmental or public health perspective in the area and 
which does not directly reflect the economic interests of its 
membership.
    (iii) Public officials.
    (iv) Citizens or representatives of organizations with substantial 
economic interests in the plan or project.
    (2) Generally, where the activity has a particular geographic focus, 
the advisory group shall be made up of persons who are residents of that 
geographic area.
    (3) In order to meet the advisory group membership requirements of 
paragraph (c)(1) of this section, the assisted agency shall:
    (i) Identify public interest groups, economic interests, and public 
officials who are interested in or affected by the assisted activity.
    (ii) Make active efforts to inform citizens in the affected area, 
and the persons or groups identified under paragraph (c)(3)(i) of this 
section, of this opportunity for participation on the advisory group. 
This may include such actions as placing notices or announcements in the 
newspapers or other media, mailing written notices to interested 
parties, contacting organizations or individuals directly, requesting 
organizations to notify their members through meetings, newsletters, or 
other means.
    (iii) Where the membership composition set forth in paragraph (c)(1) 
of this section is not met after the above actions, the assisted agency 
shall identify the causative problems and make additional efforts to 
overcome such problems. For example, the agency should make personal 
contact with prospective participants to invite their participation.
    (iv) Where problems in meeting the membership composition arise, the 
agency should request advice and assistance from EPA.
    (d) The assisted agency shall record the names and mailing addresses 
of each member of the advisory group, with the attributes of each in 
relation to the membership requirements set forth in paragraph (c)(1) of 
this section, provide a copy to EPA, and make the list available to the 
public. In the event that the membership requirements set forth in 
paragraph (c)(1) of this section are not met, the assisted agency shall 
append to the list a description of its efforts to comply with those 
requirements and an explanation of the problems which prevented 
compliance. EPA shall review the agency's efforts to comply and approve 
the advisory group composition or, if the agency's efforts were 
inadequate, require additional actions to achieve the required 
membership composition.
    (e) Responsibilities of the assisted agency. (1) The assisted agency 
shall designate a staff contact who will be responsible for day-to-day 
coordination among the advisory group, the agency, and any agency 
contractors or consultants. The financial assistance agreement shall 
include a budget item for this staff contact. Where substantial portions 
of the assisted agency's responsibilities will be met under contract, 
the agency shall require a similar designation, and budget 
specification, of its contractor. In the latter event, the assisted 
agency does not have to designate a separate staff contact on its own 
staff, if the Regional Administrator determines that the contractor's 
designation will result in adequate coordination. The staff contact 
shall be located in the project area.

[[Page 274]]

    (2) The assisted agency has such responsibilities as providing the 
advisory group with information, identifying issues for the advisory 
group's consideration, consulting with the advisory group throughout the 
project, requesting the advisory group's recommendations prior to major 
decisions, transmitting advisory group recommendations to decision-
making officials, and making written responses to any formal 
recommendation by the advisory group. The agency shall make any such 
written responses available to the public. To the maximum extent 
feasible, the assisted agency shall involve the advisory group in the 
development of the public participation program.
    (3) The assisted agency shall identify professional and clerical 
staff time which the advisory group may depend upon for assistance, and 
provide the advisory group with an operating budget which may be used 
for technical assistance and other purposes agreed upon between the 
advisory group and the agency.
    (4) The assisted agency shall establish a system to make costs of 
reasonable out-of-pocket expenses of advisory group participation 
available to group members. Time away from work need not be reimbursed; 
however, assisted agencies are encouraged to schedule meetings at times 
and places which will not require members to leave their jobs to attend.
    (f) Advisory group responsibilities and duties. The advisory group 
may select its own chairperson, adopt its own rules of order, and 
schedule and conduct its own meetings. Advisory group meetings shall be 
announced well in advance and shall be open to the public. At all 
meetings, the advisory group shall provide opportunity for public 
comment. Any minutes of advisory group meetings and recommendations to 
the assisted agency shall be available to the public. The advisory group 
should monitor the progress of the project and become familiar with 
issues relevant to project development. In the event the assisted agency 
and the advisory group agree that the advisory group will assume public 
participation responsibilities, the group should undertake those 
responsibilities promptly. The advisory group should make written 
recommendations directly to the assisted agency and to responsible 
decision-making officials on major decisions (including approval of the 
public participation program) and respond to any requests from the 
agency or decision-making officials for recommendations. The advisory 
group should remain aware of community attitudes and responses to issues 
as they arise. As part of this effort, the advisory group may, within 
the limitations of available resources, conduct public participation 
activities in conjunction with the assisted agency; solicit outside 
advice; and establish, in conjunction with the assisted agency, 
subcommittees, ad hoc groups, or task forces to investigate and develop 
recommendations on particular issues as they arise. The advisory group 
should undertake its responsibilities fully and promptly in accordance 
with the policies and requirements of this part. Nothing shall preclude 
the right of the advisory group from requesting EPA to perform an 
evaluation of the assisted agency's compliance with the requirements of 
this part.
    (g) Training and assistance. EPA will promptly provide appropriate 
written guidance and project information to the newly formed advisory 
group and may provide advice and assistance to the group throughout the 
life of the project. EPA will develop and, in conjunction with the State 
or assisted agency, carry out a program to provide a training session 
for the advisory group, and appropriate assisted agency representatives, 
promptly after the advisory group is formed. The assisted agency shall 
provide additional needed information or assistance to the advisory 
group.



Sec. 25.8  Responsiveness summaries.

    Each agency which conducts any activities required under this part 
shall prepare a Responsiveness Summary at specific decision points as 
specified in program regulations or in the approved public participation 
work plan. Responsiveness Summaries are also required for rulemaking 
activities under Sec. 25.10. Each Responsiveness Summary shall identify 
the public participation activity conducted; describe the matters on 
which the public was consulted;

[[Page 275]]

summarize the public's views, significant comments, criticisms and 
suggestions; and set forth the agency's specific responses in terms of 
modifications of the proposed action or an explanation for rejection of 
proposals made by the public. Responsiveness Summaries prepared by 
agencies receiving EPA financial assistance shall also include 
evaluations by the agency of the effectiveness of the public 
participation program. Assisted agencies shall request such evaluations 
from any advisory group and provide an opportunity for other 
participating members of the public to contribute to the evaluation. (In 
the case of programs with multiple responsiveness summary requirements, 
these analyses need only be prepared and submitted with the final 
summary required.) Responsiveness summaries shall be forwarded to the 
appropriate decision-making official and shall be made available to the 
public. Responsiveness Summaries shall be used as part of evaluations 
required under this part or elsewhere in this chapter.



Sec. 25.9  Permit enforcement.

    Each agency administering a permit program shall develop internal 
procedures for receiving evidence submitted by citizens about permit 
violations and ensuring that it is properly considered. Public effort in 
reporting violations shall be encouraged, and the agency shall make 
available information on reporting procedures. The agency shall 
investigate alleged violations promptly.



Sec. 25.10  Rulemaking.

    (a) EPA shall invite and consider written comments on proposed and 
interim regulations from any interested or affected persons and 
organizations. All such comments shall be part of the public record, and 
a copy of each comment shall be available for public inspection. EPA 
will maintain a docket of comments received and any Agency responses. 
Notices of proposed and interim rulemaking, as well as final rules and 
regulations, shall be distributed in accordance with Sec. 25.4(c) to 
interested or affected persons promptly after publication. Each notice 
shall include information as to the availability of the full texts of 
rules and regulations (where these are not set forth in the notice 
itself) and places where copying facilities are available at reasonable 
cost to the public. Under Executive Order 12044 (March 23, 1978), 
further EPA guidance will be issued concerning public participation in 
EPA rulemaking. A Responsiveness Summary shall be published as part of 
the preamble to interim and final regulations. In addition to providing 
opportunity for written comments on proposed and interim regulations, 
EPA may choose to hold a public hearing.
    (b) State rulemaking specified in Sec. 25.2(a)(1) shall be in accord 
with the requirements of paragraph (a) of this section or with the 
State's administrative procedures act, if one exists. However, in the 
event of conflict between a provision of paragraph (a) of this section 
and a provision of a State's administrative procedures act, the State's 
law shall apply.



Sec. 25.11  Work elements in financial assistance agreements.

    (a) This section is applicable to activities under Sec. 25.2(a)(5) 
except as otherwise provided in parts 30 or 35.
    (b) Each applicant for EPA financial assistance shall set forth in 
the application a public participation work plan or work element which 
reflects how public participation will be provided for, encouraged, and 
assisted in accordance with this part. This work plan or element shall 
cover the project period. At a minimum, the work plan or element shall 
include:
    (1) Staff contacts and budget resources to be devoted to public 
participation by category;
    (2) A proposed schedule for public participation activities to 
impact major decisions, including consultation points where 
responsiveness summaries will be prepared;
    (3) An identification of consultation and information mechanisms to 
be used;
    (4) The segments of the public targeted for involvement.
    (c) All reasonable costs of public participation incurred by 
assisted agencies which are identified in an approved public 
participation work plan or element, or which are otherwise approved

[[Page 276]]

by EPA, shall be eligible for financial assistance.
    (d) The work plan or element may be revised as necessary throughout 
the project period with approval of the Regional Administrator.



Sec. 25.12  Assuring compliance with public participation requirements.

    (a) Financial assistance programs--(1) Applications. EPA shall 
review the public participation work plan (or, if no work plan is 
required by this chapter for the particular financial assistance 
agreement, the public participation element) included in the application 
to determine consistency with all policies and requirements of this 
part. No financial assistance shall be awarded unless EPA is satisfied 
that the public participation policies and requirements of this part 
and, any applicable public participation requirements found elsewhere in 
this chapter, will be met.
    (2) Compliance--(i) Evaluation. EPA shall evaluate compliance with 
public participation requirements using the work plan, responsiveness 
summary, and other available information. EPA will judge the adequacy of 
the public participation effort in relation to the objectives and 
requirements of Sec. 25.3 and Sec. 25.4 and other applicable 
requirements. In conducting this evaluation, EPA may request additional 
information from the assisted agency, including records of hearings and 
meetings, and may invite public comment on the agency's performance. The 
evaluation will be undertaken as part of any mid-project review required 
in various programs under this chapter; where no such review is required 
the review shall be conducted at an approximate mid-point in continuing 
EPA oversight activity. EPA may, however, undertake such evaluation at 
any point in the project period, and will do so whenever it believes 
that an assisted agency may have failed to meet public participation 
requirements.
    (ii) Remedial actions. Whenever EPA determines that an assisted 
agency has not fully met public participation requirements, EPA shall 
take actions which it deems appropriate to mitigate the adverse effects 
of the failure and assure that the failure is not repeated. For ongoing 
projects, that action shall include, at a minimum, imposing more 
stringent requirements on the assisted agency for the next budget period 
or other period of the project (including such actions as more specific 
output requirements and milestone schedules for output achievement; 
interim EPA review of public participation activities and materials 
prepared by the agency, and phased release of funds based on compliance 
with milestone schedules.) EPA may terminate or suspend part or all 
financial assistance for non-compliance with public participation 
requirements, and may take any further actions that it determines to be 
appropriate in accordance with parts 30 and 35 of this chapter (see, in 
particular, Sec. Sec. 30.340, Noncompliance and 30.615-3, Withholding of 
Payments, and subpart H of part 30, Modification, Suspension, and 
Termination).
    (b) State programs approved in lieu of Federal programs. State 
compliance with applicable public participation requirements in programs 
specified in Sec. 25.2(a) (6) and (7) and administered by approved 
States shall be monitored by EPA during the annual review of the State's 
program, and during any financial or program audit or review of these 
programs. EPA may withdraw an approved program from a State for failure 
to comply with applicable public participation requirements.
    (c) Other covered programs. Assuring compliance with these public 
participation requirements for programs not covered by paragraphs (a) 
and (b) of this section is the responsibility of the Administrator of 
EPA. Citizens with information concerning alleged failures to comply 
with the public participation requirements should notify the 
Administrator. The Administrator will assure that instances of alleged 
non-compliance are promptly investigated and that corrective action is 
taken where necessary.



Sec. 25.13  Coordination and non-duplication.

    The public participation activities and materials that are required 
under this part should be coordinated or combined with those of closely 
related programs or activities wherever this will

[[Page 277]]

enhance the economy, the effectiveness, or the timeliness of the effort; 
enhance the clarity of the issue; and not be detrimental to 
participation by the widest possible public. Hearings and meetings on 
the same matter may be held jointly by more than one agency where this 
does not conflict with the policy of this paragraph. Special efforts 
shall be made to coordinate public participation procedures under this 
part and applicable regulations elsewhere in this chapter with 
environmental assessment and analysis procedures under 40 CFR part 6. 
EPA encourages interstate agencies in particular to develop combined 
proceedings for the States concerned.



Sec. 25.14  Termination of reporting requirements.

    All reporting requirements specifically established by this part 
will terminate on (5 years from date of publication) unless EPA acts to 
extend the requirements beyond that date.



PART 26--PROTECTION OF HUMAN SUBJECTS--Table of Contents




Sec.
26.101  To what does this policy apply?
26.102  Definitions.
26.103  Assuring compliance with this policy--research conducted or 
          supported by any Federal Department or Agency.
26.104  [Reserved]
26.105  [Reserved]
26.106  [Reserved]
26.107  IRB Membership.
26.108  IRB functions and operations.
26.109  IRB review of research.
26.110  Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
26.111  Criteria for IRB approval of research.
26.112  Review by institution.
26.113  Suspension or termination of IRB approval of research.
26.114  Cooperative research.
26.115  IRB records.
26.116  General requirements for informed consent.
26.117  Documentation of informed consent.
26.118  Applications and proposals lacking definite plans for 
          involvement of human subjects.
26.119  Research undertaken without the intention of involving human 
          subjects.
26.120  Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal Department 
          or Agency.
26.121  [Reserved]
26.122  Use of Federal funds.
26.123  Early termination of research support: Evaluation of 
          applications and proposals.
26.124  Conditions.

    Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

    Source: 56 FR 28012, 28022, June 18, 1991, unless otherwise noted.



Sec. 26.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 26.102(e), 
must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a federal 
department or agency but is subject to regulation as defined in 
Sec. 26.102(e) must be reviewed and approved, in compliance with 
Sec. 26.101, Sec. 26.102, and Sec. 26.107 through Sec. 26.117 of this 
policy, by an institutional review board (IRB) that operates in 
accordance with the pertinent requirements of this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:
    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) research on regular and special education instructional

[[Page 278]]

strategies, or (ii) research on the effectiveness of or the comparison 
among instructional techniques, curricula, or classroom management 
methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and (ii) any disclosure of the human subjects' responses 
outside the research could reasonably place the subjects at risk of 
criminal or civil liability or be damaging to the subjects' financial 
standing, employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or (ii) federal statute(s) require(s) 
without exception that the confidentiality of the personally 
identifiable information will be maintained throughout the research and 
thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs; (ii) procedures for 
obtaining benefits or services under those programs; (iii) possible 
changes in or alternatives to those programs or procedures; or (iv) 
possible changes in methods or levels of payment for benefits or 
services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies, (i) if wholesome foods without additives are consumed or (ii) 
if a food is consumed that contains a food ingredient at or below the 
level and for a use found to be safe, or agricultural chemical or 
environmental contaminant at or below the level found to be safe, by the 
Food and Drug Administration or approved by the Environmental Protection 
Agency or the Food Safety and Inspection Service of the U.S. Department 
of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
[An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by an 
organization whose function for the protection of human research 
subjects is internationally recognized.] In these circumstances, if a 
department or agency head determines that the procedures prescribed by 
the institution afford protections that are at least equivalent to those 
provided in this policy, the department or agency head

[[Page 279]]

may approve the substitution of the foreign procedures in lieu of the 
procedural requirements provided in this policy. Except when otherwise 
required by statute, Executive Order, or the department or agency head, 
notices of these actions as they occur will be published in the Federal 
Register or will be otherwise published as provided in department or 
agency procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Protection from 
Research Risks, Department of Health and Human Services (HHS), and shall 
also publish them in the Federal Register or in such other manner as 
provided in department or agency procedures.\1\
---------------------------------------------------------------------------

    \1\ Institutions with HHS-approved assurances on file will abide by 
provisions of title 45 CFR part 46 subparts A-D. Some of the other 
Departments and Agencies have incorporated all provisions of title 45 
CFR part 46 into their policies and procedures as well. However, the 
exemptions at 45 CFR 46.101(b) do not apply to research involving 
prisoners, fetuses, pregnant women, or human in vitro fertilization, 
subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research 
involving survey or interview procedures or observation of public 
behavior, does not apply to research with children, subpart D, except 
for research involving observations of public behavior when the 
investigator(s) do not participate in the activities being observed.

[56 FR 28012, 28022, June 18, 1991, 56 FR 29756, June 28, 1991]



Sec. 26.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.
Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject. ``Private information'' includes information 
about behavior that occurs in a context in which an individual can 
reasonably expect that no observation or recording is taking place, and 
information which has been provided for specific purposes by an 
individual and which the individual can reasonably

[[Page 280]]

expect will not be made public (for example, a medical record). Private 
information must be individually identifiable (i.e., the identity of the 
subject is or may readily be ascertained by the investigator or 
associated with the information) in order for obtaining the information 
to constitute research involving human subjects.
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (j) Certification means the official notification by the institution 
to the supporting department or agency, in accordance with the 
requirements of this policy, that a research project or activity 
involving human subjects has been reviewed and approved by an IRB in 
accordance with an approved assurance.



Sec. 26.103  Assuring compliance with this policy--research conducted or supported by any Federal Department or Agency.

    (a) Each institution engaged in research which is covered by this 
policy and which is conducted or supported by a federal department or 
agency shall provide written assurance satisfactory to the department or 
agency head that it will comply with the requirements set forth in this 
policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Protection from Research Risks, HHS, and approved for 
federalwide use by that office. When the existence of an HHS-approved 
assurance is accepted in lieu of requiring submission of an assurance, 
reports (except certification) required by this policy to be made to 
department and agency heads shall also be made to the Office for 
Protection from Research Risks, HHS.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in this section, and only if the institution has certified 
to the department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 26.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support the IRB's review and 
recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to IRB deliberations; and any employment 
or other relationship between each member and the institution; for 
example: full-time employee, part-time employee, member of governing 
panel or board, stockholder, paid or unpaid consultant. Changes in IRB 
membership shall be reported to the department or agency head, unless in 
accord

[[Page 281]]

with Sec. 26.103(a) of this policy, the existence of an HHS-approved 
assurance is accepted. In this case, change in IRB membership shall be 
reported to the Office for Protection from Research Risks, HHS.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.
    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or agency head may limit the 
period during which any particular approved assurance or class of 
approved assurances shall remain effective or otherwise condition or 
restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 26.101 (b) or (i). An institution with an approved assurance shall 
certify that each application or proposal for research covered by the 
assurance and by Sec. 26.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 26.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the 
application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under control number 
9999-0020)

[56 FR 28012, 28022, June 18, 1991, 56 FR 29756, June 28, 1991]
Sec. Sec. 26.104--26.106  [Reserved]



Sec.  26.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members, and the diversity of the

[[Page 282]]

members, including consideration of race, gender, and cultural 
backgrounds and sensitivity to such issues as community attitudes, to 
promote respect for its advice and counsel in safeguarding the rights 
and welfare of human subjects. In addition to possessing the 
professional competence necessary to review specific research 
activities, the IRB shall be able to ascertain the acceptability of 
proposed research in terms of institutional commitments and regulations, 
applicable law, and standards of professional conduct and practice. The 
IRB shall therefore include persons knowledgeable in these areas. If an 
IRB regularly reviews research that involves a vulnerable category of 
subjects, such as children, prisoners, pregnant women, or handicapped or 
mentally disabled persons, consideration shall be given to the inclusion 
of one or more individuals who are knowledgeable about and experienced 
in working with these subjects.
    (b) Every nondiscriminatory effort will be made to ensure that no 
IRB consists entirely of men or entirely of women, including the 
institution's consideration of qualified persons of both sexes, so long 
as no selection is made to the IRB on the basis of gender. No IRB may 
consist entirely of members of one profession.
    (c) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (d) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (e) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (f) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues which 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec. 26.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 26.103(b)(4) and, to the extent required by, Sec. 26.103(b)(5).
    (b) Except when an expedited review procedure is used (see 
Sec. 26.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 26.109  IRB Review of Research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 26.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 26.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 26.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per

[[Page 283]]

year, and shall have authority to observe or have a third party observe 
the consent process and the research.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 26.110  Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.

    (a) The Secretary, HHS, has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The list will 
be amended, as appropriate after consultation with other departments and 
agencies, through periodic republication by the Secretary, HHS, in the 
Federal Register. A copy of the list is available from the Office for 
Protection from Research Risks, National Institutes of Health, HHS, 
Bethesda, Maryland 20892.
    (b) An IRB may use the expedited review procedure to review either 
or both of the following:
    (1) Some or all of the research appearing on the list and found by 
the reviewer(s) to involve no more than minimal risk,
    (2) Minor changes in previously approved research during the period 
(of one year or less) for which approval is authorized.

Under an expedited review procedure, the review may be carried out by 
the IRB chairperson or by one or more experienced reviewers designated 
by the chairperson from among members of the IRB. In reviewing the 
research, the reviewers may exercise all of the authorities of the IRB 
except that the reviewers may not disapprove the research. A research 
activity may be disapproved only after review in accordance with the 
non-expedited procedure set forth in Sec. 26.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.



Sec. 26.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by Sec. 26.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 26.117.
    (6) When appropriate, the research plan makes adequate provision for

[[Page 284]]

monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 26.112  Review by institution.

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.



Sec. 26.113  Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 26.114  Cooperative research.

    Cooperative research projects are those projects covered by this 
policy which involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy. With the approval of the department or agency head, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely upon the review of another qualified IRB, 
or make similar arrangements for avoiding duplication of effort.



Sec. 26.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is 
Sec. 26.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 26.103(b)(4) and Sec. 26.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 26.116(b)(5).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of the research. All 
records shall be accessible for inspection and copying by authorized 
representatives of the department or agency at reasonable times and in a 
reasonable manner.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 26.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or the subject's legally authorized 
representative. An investigator shall seek such consent only under 
circumstances

[[Page 285]]

that provide the prospective subject or the representative sufficient 
opportunity to consider whether or not to participate and that minimize 
the possibility of coercion or undue influence. The information that is 
given to the subject or the representative shall be in language 
understandable to the subject or the representative. No informed 
consent, whether oral or written, may include any exculpatory language 
through which the subject or the representative is made to waive or 
appear to waive any of the subject's legal rights, or releases or 
appears to release the investigator, the sponsor, the institution or its 
agents from liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph (c) or (d) of this section, in seeking informed consent the 
following information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and
    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine: (i) Public benefit of 
service programs; (ii) procedures for obtaining benefits or services 
under those programs; (iii) possible changes in or alternatives to those 
programs or procedures; or (iv) possible changes in methods or levels of 
payment for benefits or services under those programs; and

[[Page 286]]

    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;
    (3) The research could not practicably be carried out without the 
waiver or alteration; and
    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to provide emergency medical care, to the extent the physician 
is permitted to do so under applicable federal, state, or local law.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 26.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written consent form 
approved by the IRB and signed by the subject or the subject's legally 
authorized representative. A copy shall be given to the person signing 
the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 26.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator shall give either the subject or the 
representative adequate opportunity to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 26.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each subject will be asked 
whether the subject wants documentation linking the subject with the 
research, and the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.
In cases in which the documentation requirement is waived, the IRB may 
require the investigator to provide subjects with a written statement 
regarding the research.

(Approved by the Office of Management and Budget under control number 
9999-0020)



Sec. 26.118  Applications and proposals lacking definite plans for involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or agencies with the knowledge 
that subjects may be involved within the period of support, but definite 
plans would not

[[Page 287]]

normally be set forth in the application or proposal. These include 
activities such as institutional type grants when selection of specific 
projects is the institution's responsibility; research training grants 
in which the activities involving subjects remain to be selected; and 
projects in which human subjects' involvement will depend upon 
completion of instruments, prior animal studies, or purification of 
compounds. These applications need not be reviewed by an IRB before an 
award may be made. However, except for research exempted or waived under 
Sec. 26.101 (b) or (i), no human subjects may be involved in any project 
supported by these awards until the project has been reviewed and 
approved by the IRB, as provided in this policy, and certification 
submitted, by the institution, to the department or agency.



Sec. 26.119  Research undertaken without the intention of involving human subjects.

    In the event research is undertaken without the intention of 
involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted, by the institution, to the department or agency, and final 
approval given to the proposed change by the department or agency.



Sec. 26.120  Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.

    The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the department or agency 
through such officers and employees of the department or agency and such 
experts and consultants as the department or agency head determines to 
be appropriate. This evaluation will take into consideration the risks 
to the subjects, the adequacy of protection against these risks, the 
potential benefits of the research to the subjects and others, and the 
importance of the knowledge gained or to be gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.
Sec. 26.121  [Reserved]



Sec. 26.122  Use of Federal funds.

    Federal funds administered by a department or agency may not be 
expended for research involving human subjects unless the requirements 
of this policy have been satisfied.



Sec. 26.123  Early termination of research support: Evaluation of applications and proposals.

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragarph (a) of this section and 
whether the applicant or the person or persons who would direct or has 
have directed the scientific and technical aspects of an activity has 
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec. 26.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.

[[Page 288]]



PART 27--PROGRAM FRAUD CIVIL REMEDIES--Table of Contents




Sec.
27.1  Basis and purpose.
27.2  Definitions.
27.3  Basis for civil penalties and assessments.
27.4  Investigation.
27.5  Review by the reviewing official.
27.6  Prerequisites for issuing a complaint.
27.7  Complaint.
27.8  Service of complaint.
27.9  Answer.
27.10  Default upon failure to file an answer.
27.11  Referral of complaint and answer to the presiding officer.
27.12  Notice of hearing.
27.13  Parties to the hearing.
27.14  Separation of functions.
27.15  Ex parte contacts.
27.16  Disqualification of the reviewing official or presiding officer.
27.17  Rights of parties.
27.18  Authority of the presiding officer.
27.19  Prehearing conferences.
27.20  Disclosure of documents.
27.21  Discovery.
27.22  Exchange of witness lists, statements, and exhibits.
27.23  Subpoenas for attendance at hearing.
27.24  Protective order.
27.25  Fees.
27.26  Form, filing and service of papers.
27.27  Computation of time.
27.28  Motions.
27.29  Sanctions.
27.30  The hearing and burden of proof.
27.31  Determining the amount of penalties and assessments.
27.32  Location of hearing.
27.33  Witnesses.
27.34  Evidence.
27.35  The record.
27.36  Post-hearing briefs.
27.37  Initial decision.
27.38  Reconsideration of initial decision.
27.39  Appeal to authority head.
27.40  Stays ordered by the Department of Justice.
27.41  Stay pending appeal.
27.42  Judicial review.
27.43  Collection of civil penalties and assessments.
27.44  Right to administrative offset.
27.45  Deposit in Treasury of United States.
27.46  Compromise or settlement.
27.47  Limitations.
27.48  Delegated functions.

    Authority: 31 U.S.C. 3809.

    Source: 53 FR 15182, Apr. 27, 1988, unless otherwise noted.



Sec. 27.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law No. 99-509, sections 6101-6104, 100 Stat. 1874 
(October 21, 1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 
3809 of the statute requires each authority head to promulgate 
regulations necessary to implement the provisions of the statute.
    (b) Purpose. This part (1) establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to the 
Environmental Protection Agency, and (2) specifies the hearing and 
appeal rights of persons subject to allegations of liability for such 
penalties and assessments.



Sec. 27.2  Definitions

    Administrative Law Judge means an administrative law judge in the 
Authority appointed pursuant to 5 U.S.C. 3105 or detailed to the 
Authority pursuant to 5 U.S.C. 3344.
    Administrator means the Administrator of the United States 
Environmental Protection Agency.
    Authority means the United States Environmental Protection Agency.
    Benefit means, in the context of ``statement,'' anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.
    Claim means any request, demand, or submission--
    (a) Made to the Authority for property, services, or money 
(including money representing grants, loans, insurance, or benefits);
    (b) Made to a recipient of property, services, or money from the 
Authority or to a party to a contract with the Authority--
    (1) For property or services if the United States--
    (i) Provided such property or services;
    (ii) Provided any portion of the funds for the purchase of such 
property or services; or

[[Page 289]]

    (iii) Will reimburse such recipient or party for the purchase of 
such property or services; or
    (2) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (i) Provided any portion of the money requested or demanded; or
    (ii) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (c) Made to the Authority which has the effect of decreasing an 
obligation to pay or account for property, services, or money.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec. 27.7.
    Defendant means any person alleged in a complaint under Sec. 27.7 to 
be liable for a civil penalty or assessment under Sec. 27.3.
    Environmental Appeals Board means the Board within the Agency 
described in Sec. 1.25 of this title.
    Government means the United States Government.
    Hearing Clerk means the Hearing Clerk, A-110, United States 
Environmental Protection Agency, 401 M St. SW., Washington, DC 20460.
    Individual means a natural person.
    Initial decision means the written decision of the presiding officer 
required by Sec. 27.10 or Sec. 27.37, and includes a revised initial 
decision issued following a remand or a motion for reconsideration.
    Investigating official means the Inspector General of the United 
States Environmental Protection Agency or an officer or employee of the 
Office of Inspector General designated by the Inspector General and 
serving in a position for which the rate of basic pay is not less than 
the minimum rate of basic pay for grade GS-16 under the General 
Schedule.
    Knows or has reason to know means that a person, with respect to a 
claim or statement--
    (a) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (b) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (c) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits, and causes to be made, presented, or submitted. As the context 
requires, making or made shall likewise include the corresponding forms 
of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization, and includes the plural of those terms.
    Presiding officer means the administrative law judge designated by 
the Chief administrative law judge to serve as presiding officer.
    Representative means an attorney who is a member in good standing of 
the bar of any State, Territory, or possession of the United States or 
of the District of Columbia or the Commonwealth of Puerto Rico, or other 
representative who must conform to the standards of conduct and ethics 
required of practitioners before the courts of the United States.
    Reviewing official means the General Counsel of the Authority or his 
designee who is--
    (a) Not subject to supervision by, or required to report to, the 
investigating official;
    (b) Not employed in the organizational unit of the Authority in 
which the investigating official is employed; and
    (c) Serving in a position for which the rate of basic pay is not 
less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule.
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (a) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (b) With respect to (including relating to eligibility for)--
    (1) A contract with, or a bid or proposal for a contract with; or
    (2) A grant, loan, or benefit from,

the Authority, or any State, political subdivision of a State, or other 
party,

[[Page 290]]

if the United States Government provides any portion of the money or 
property under such contract or for such grant, loan, or benefit, or if 
the Government will reimburse such State, political subdivision, or 
party for any portion of the money or property under such contract or 
for such grant, loan, or benefit.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326, Feb. 13, 1992]



Sec. 27.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed,

shall be subject, in addition to any other remedy that may be prescribed 
by law, to a civil penalty of not more than $5,000 for each such claim.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the Authority, recipient, or 
party when such claim is actually made to an an agent, fiscal 
intermediary, or other entity, including any State or political 
subdivision thereof, acting for or on behalf of the Authority, 
recipient, or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section, shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement,

shall be subject, in addition to any other remedy that may be prescribed 
by law, to a civil penalty of not more than $5,000 for each such 
statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the Authority when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or political subdivision thereof, acting for 
or on behalf of such Authority.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.

[[Page 291]]



Sec. 27.4  Investigation.

    (a) If the investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefor, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to defer or postpone a report or referral to the 
reviewing official to avoid interference with a criminal investigation 
or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 27.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 27.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 27.3 of this 
part, the reviewing official shall transmit to the Attorney General a 
written notice of the reviewing official's intention to issue a 
complaint under Sec. 27.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of 
Sec. 27.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec. 27.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 27.7 
only if--
    (1) The Department of Justice approves the issuance of a complaint 
in written statement described in 31 U.S.C. 3803(b)(1), and
    (2) In the case of allegations of liability under Sec. 27.3(a) with 
respect to a claim, the reviewing official determines that, with respect 
to such claim or a group of related claims submitted at the same time 
such claim is submitted (as defined in paragraph (b) of this section), 
the amount of money or the value of property or services demanded or 
requested in violation of Sec. 27.3(a) does not exceed $150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person, claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.

[[Page 292]]



Sec. 27.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec. 27.8.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statuory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal as provided in 
Sec. 27.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec. 27.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the defendant or his or her 
representative.



Sec. 27.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting requirements of paragraph 
(b) of this section. The reviewing official shall file promptly with the 
hearing clerk the complaint, the general answer denying liability, and 
the request for an extension of time as provided in Sec. 27.11. Upon 
assignment to a presiding officer, the presiding officer may, for good 
cause shown, grant the defendant up to 30 additional days within which 
to file an answer meeting the requirements of paragraph (b) of this 
section.



Sec. 27.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 27.9(a), the reviewing official may file the 
complaint with the hearing clerk as provided in Sec. 27.11.
    (b) Upon assignment of the complaint to a presiding officer, the 
presiding officer shall promptly serve on defendant in the manner 
prescribed in Sec. 27.8, a notice that an initial decision will be 
issued under this section.
    (c) The presiding officer shall assume the facts alleged in the 
complaint to be true, and, if such facts establish liability under 
Sec. 27.3, the presiding officer shall issue an initial decision 
imposing

[[Page 293]]

the maximum amount of penalties and assessments allowed under the 
statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion seeking to reopen on the grounds that extraordinary 
circumstances prevented the defendant from filing an answer, the initial 
decision shall be stayed pending the presiding officer's decision on the 
motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the 
presiding officer shall withdraw the initial decision in paragraph (c) 
of this section, if such a decision has been issued, and shall grant the 
defendant an opportunity to answer the complaint.
    (g) A decision of the presiding officer denying a defendant's motion 
under paragraph (e) of this section, is not subject to reconsideration 
under Sec. 27.38.
    (h) The defendant may appeal to the Environmental Appeals Board the 
decision denying a motion to reopen by filing a notice of appeal within 
15 days after the presiding officer denies the section. The timely 
filing of a notice of appeal shall stay the initial decision the 
Environmental Appeals Board decides the issue.
    (i) If the defendant files a timely notice of appeal, the presiding 
officer shall forward the record of the proceeding to the Environmental 
Appeals Board.
    (j) The Environmental Appeals Board shall decide expeditiously 
whether extraordinary circumstances excuse the defendant's failure to 
file a timely answer based solely on the record before the presiding 
officer.
    (k) If the Environmental Appeals Board decides that extraordinary 
circumstances excused the defendant's failure to file a timely answer, 
the Environmental Appeals Board shall remand the case to the presiding 
officer with instructions to grant the defendant an opportunity to 
answer.
    (l) If the Environmental Appeals Board decides that the defendant's 
failure to file a timely answer is not excused, the Environmental 
Appeals Board shall reinstate the initial decision of the presiding 
officer, which shall become final and binding upon the parties 30 days 
after the Environmental Appeals Board issues such decision.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326, Feb. 13, 1992]



Sec. 27.11  Referral of complaint and answer to the presiding officer.

    (a) Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the hearing clerk.
    (b) The hearing clerk shall forward the complaint and answer to the 
Chief administrative law judge who shall assign himself or herself or 
another administrative law judge as presiding officer. The presiding 
officer shall then obtain the complaint and answer from the Chief 
administrative law judge and notify the parties of his or her 
assignment.



Sec. 27.12  Notice of hearing.

    (a) When the presiding officer obtains the complaint and answer, the 
presiding officer shall promptly serve a notice of hearing upon the 
defendant in the manner prescribed by Sec. 27.8. At the same time, the 
presiding officer shall send a copy of such notice to the representative 
for the Government.
    (b) Such notice shall include--
    (1) The date, time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the presiding officer deems appropriate.
    (c) The presiding officer shall issue the notice of hearing at least 
twenty

[[Page 294]]

(20) days prior to the date set for the hearing.



Sec. 27.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
Authority.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 27.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the Authority who takes part in investigating, 
preparing, or presenting a particular case, may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the presiding officer;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the Environmental Appeals Board, except as a 
witness or representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) Neither the presiding officer nor the members of the 
Environmental Appeals Board shall be responsible to, or subject to, the 
supervision or direction of the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
authority, including in the offices of either the investigating official 
or the reviewing official.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326, Feb. 13, 1992]



Sec. 27.15  Ex parte contacts.

    No party or person (except employees of the presiding officer's 
office) shall communicate in any way with the presiding officer on any 
matter at issue in a case, unless on notice and opportunity for all 
parties to participate. This provision does not prohibit a person or 
party from inquiring about the status of a case or asking routine 
question concerning administrative functions or procedures.



Sec. 27.16  Disqualification of the reviewing official or presiding officer.

    (a) A reviewing official or presiding officer in a particular case 
may disqualify himself or herself at any time.
    (b) A party may file a motion for disqualification of a reviewing 
official or presiding officer with the hearing clerk. Such motion shall 
be accompanied by an affidavit alleging personal bias or other reason 
for disqualification.
    (c) Such motion and affidavit shall be filed within 15 days of the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the presiding 
officer shall proceed no further in the case until he or she resolves 
the matter of disqualification in accordance with paragraph (f) of this 
section.
    (f)(1) If the presiding officer determines that the reviewing 
official is disqualified because the reviewing official could not have 
made an impartial determination pursuant to Sec. 27.5(a), the presiding 
officer shall dismiss the complaint without prejudice.
    (2) If the presiding officer disqualifies himself or herself, the 
case shall be reassigned promptly to another presiding officer.
    (3) If the presiding officer denies a motion to disqualify, the 
Environmental Appeals Board may determine the matter only as part of its 
review of the initial decision upon appeal, if any.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5326, Feb. 13, 1992]



Sec. 27.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the presiding officer;
    (c) Conduct discovery;

[[Page 295]]

    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the 
presiding officer; and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 27.18  Authority of the presiding officer.

    (a) The presiding officer shall conduct a fair and impartial 
hearing, avoid delay, maintain order, and assure that a record of the 
proceeding is made.
    (b) The presiding officer has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the presiding officer under this part.
    (c) The presiding officer does not have the authority to find 
Federal statutes or regulations invalid.



Sec. 27.19  Prehearing conferences.

    (a) The presiding officer may schedule prehearing conferences as 
appropriate.
    (b) Upon the motion of any party, the presiding officer shall 
schedule at least one prehearing conference at a reasonable time in 
advance of the hearing.
    (c) The presiding officer may use prehearing conferences to discuss 
the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The presiding officer may issue an order containing all matters 
agreed upon by the parties or ordered by the presiding officer at a 
prehearing conference.



Sec. 27.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 27.4(b)

[[Page 296]]

are based, unless such documents are subject to a privilege under 
Federal law. Upon payment of fees for duplication, the defendant may 
obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 27.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed following the filing of an answer pursuant to Sec. 27.9.



Sec. 27.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec. Sec. 27.22 and 27.23, 
the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence. Nothing contained herein shall be interpreted to require the 
creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the presiding officer. The presiding officer shall 
regulate the timing of discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion which shall be accompanied by a copy of the requested discovery, 
or in the case of depositions, a summary of the scope of the proposed 
deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in 
Sec. 27.24.
    (3) The presiding officer may grant a motion for discovery only if 
he finds that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The presiding officer may grant discovery subject to a 
protective order under Sec. 27.24.
    (e) Depositions. (1) If a motion for deposition is granted, the 
presiding officer shall issue a subpoena for the deponent, which may 
require the deponent to produce documents. The subpoena shall specify 
the time and place at which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 27.8.
    (3) The deponent may file a motion to quash the subpoena or a motion 
for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 27.22  Exchange of witness lists, statements and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the presiding officer, the parties shall exchange witness 
lists, copies of prior statements of proposed witnesses, and copies of 
proposed hearing exhibits, including copies of any written statements 
that the party intends to offer in lieu of live testimony in accordance 
with Sec. 27.33(b). At the time the above documents are exchanged, any 
party that intends to rely on the transcript of deposition testimony in 
lieu of live testimony at the hearing, if permitted by the presiding 
officer,

[[Page 297]]

shall provide each party with a copy of the specific pages of the 
transcript it intends to introduce into evidence.
    (b) If a party objects, the presiding officer shall not admit into 
evidence the testimony of any witness whose name does not appear on the 
witness list or any exhibit not provided to the opposing party as 
provided above unless the presiding officer finds good cause for the 
failure or that there is not prejudice to the objecting party.
    (c) Unless another party objects within the time set by the 
presiding officer, documents exchanged in accordance with paragraph (a) 
of this section shall be deemed to be authentic for the purpose of 
admissibility at the hearing.



Sec. 27.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the presiding officer issue a 
subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the presiding officer for good cause shown. Such 
request shall specify any documents to be produced and shall designate 
the witnesses and describe the address and location thereof with 
sufficient particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 27.8. A subpoena on a party or upon an individual 
under the control of a party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file a motion to quash the subpoena within ten days after service or on 
or before the time specified in the subpoena for compliance if it is 
less than ten days after service.



Sec. 27.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by a party or 
with respect to the hearing, seeking to limit the availability or 
disclosure of evidence.
    (b) In issuing a protective order, the presiding officer may make 
any order which justice requires to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense, 
including one or more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the presiding officer;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the presiding officer;
    (8) That a trade secret or other confidential research, development, 
or commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
presiding officer.



Sec. 27.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in United States District Court. A check 
for witness fees and mileage shall accompany the subpoena when served, 
except that when a subpoena is issued on behalf of the Authority, a 
check for witness fees and mileage need not accompany the subpoena.

[[Page 298]]



Sec. 27.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the hearing clerk shall include 
an original and two copies.
    (2) The first page of every pleading and paper filed in the 
proceeding shall contain a caption setting forth the title of the 
action, the case number assigned by the hearing clerk, and a designation 
of the paper (e.g., motion to quash subpoena).
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of, the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the hearing clerk shall, 
at the time of filing, serve a copy of such document on every other 
party. Service upon any party of any document, other than those required 
to be served as prescribed in Sec. 27.8, shall be made by delivering a 
copy or by placing a copy of the document in the United States mail, 
postage prepaid and addressed, to the party's last known address. When a 
party is represented by a representative, service shall be made upon 
such representative in lieu of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 27.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal government shall be excluded from the computation.
    (c) When a document has been served or issued by placing it in the 
mail, an additional five days will be added to the time permitted for 
any response.



Sec. 27.28  Motions.

    (a) Any application to the presiding officer for an order or ruling 
shall be by motion. Motions shall state the relief sought, the authority 
relied upon, and the facts alleged, and shall be filed with hearing 
clerk and served on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The presiding officer may 
require that oral motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the presiding officer, any party may file a 
response to such motion.
    (d) The presiding officer may not grant a written motion before the 
time for filing responses thereto has expired, except upon consent of 
the parties or following a hearing on the motion, but may overrule or 
deny such motion without awaiting a response.
    (e) The presiding officer shall make a reasonable effort to dispose 
of all outstanding motions prior to the beginning of the hearing.



Sec. 27.29  Sanctions.

    (a) The presiding officer may sanction a person, including any party 
or representative for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a

[[Page 299]]

request for admission, the presiding officer may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the presiding officer 
may dismiss the action or may issue an initial decision imposing 
penalties and assessments.
    (e) The presiding officer may refuse to consider any motion, 
request, response, brief or other document which is not filed in a 
timely fashion.



Sec. 27.30  The hearing and burden of proof.

    (a) The presiding officer shall conduct a hearing on the record in 
order to determine whether the defendant is liable for a civil penalty 
or assessment under Sec. 27.3 and, if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The Authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the presiding officer for good cause shown.



Sec. 27.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the presiding officer and the Environmental Appeals Board, 
upon appeal, should evaluate any circumstances that mitigate or 
aggravate the violation and should articulate in their opinions the 
reasons that support the penalties and assessments they impose. Because 
of the intangible costs of fraud, the expense of investigating such 
conduct, and the need to deter others who might be similarly tempted, 
ordinarily double damages and a significant civil penalty should be 
imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the presiding officer and the Environmental Appeals 
Board in determining the amount of penalties and assessments to impose 
with respect to the misconduct (i.e., the false, fictitious, or 
fraudulent claims or statements) charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;

[[Page 300]]

    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the 
presiding officer or the Environmental Appeals Board from considering 
any other factors that in any given case may mitigate or aggravate the 
offense for which penalties and assessments are imposed.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327, Feb. 13, 1992]



Sec. 27.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the presiding officer.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the presiding officer.



Sec. 27.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the presiding officer, testimony may be 
admitted in the form of a written statement or deposition. Any such 
written statement must be provided to all other parties along with the 
last known address of such witness, in a manner which allows sufficient 
time for other parties to subpoena such witness for cross-examination at 
the hearing. Prior written statements of witnesses proposed to testify 
at the hearing and deposition transcripts shall be exchanged as provided 
in Sec. 27.22(a).
    (c) The presiding officer shall exercise reasonable control over the 
mode and order of interrogating witnesses and presenting evidence so as 
to:
    (1) Make the interrrogation and presentation effective for the 
ascertainment of the truth,
    (2) Avoid needless consumption of time, and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The presiding officer shall permit the parties to conduct such 
cross-examination as may be required for a full and true disclosure of 
the facts.
    (e) At the discretion of the presiding officer, a witness may be 
cross-examined on matters relevant to the proceeding without regard to 
the scope of his or her direct examination. To the extent permitted by 
the presiding officer, cross-examination on matters outside the scope of 
direct examination shall be conducted in the manner of direct 
examination and may proceed by leading questions only if the witness is 
a hostile witness, an adverse party, or a witness identified with an 
adverse party.
    (f) Upon motion of any party, the presiding officer shall order 
witnesses excluded so that they cannot hear the testimony of other 
witnesses. This rule does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
empoyee of the party appearing for the entity pro se or designated by 
the party's representative; or
    (3) an individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 27.34  Evidence.

    (a) The presiding officer shall determine the admissibility of 
evidence.
    (b) Except as provided in this part, the presiding officer shall not 
be bound

[[Page 301]]

by the Federal Rules of Evidence. However, the presiding officer may 
apply the Federal Rules of Evidence when appropriate, e.g., to exclude 
unreliable evidence.
    (c) The presiding officer shall exclude irrelevant and immaterial 
evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The presiding officer shall permit the parties to introduce 
rebuttal witnesses and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the presiding officer pursuant to Sec. 27.24.



Sec. 27.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the hearing clerk at a cost not to 
exceed the actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the presiding 
officer and the Environmental Appeals Board.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the presiding 
officer pursuant to Sec. 27.24.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327, Feb. 13, 1992]



27.36  Post-hearing briefs.

    The presiding officer may require the parties to file post-hearing 
briefs. In any event, any party may file a post-hearing brief. The 
presiding officer shall fix the time for filing such briefs, not to 
exceed 60 days from the date the parties receive the transcript of the 
hearing or, if applicable, the stipulated record. Such briefs may be 
accompanied by proposed findings of fact and conclusions of law. The 
presiding officer may permit the parties to file responsive briefs.



Sec. 27.37  Initial decision.

    (a) The presiding officer shall issue an initial decision based only 
on the record. The decision shall contain findings of fact, conclusions 
of law, and the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 27.3;
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 27.31.
    (c) The presiding officer shall promptly serve the initial decision 
on all parties within 90 days after the time for submission of post-
hearing briefs and responsive briefs (if permitted) has expired. The 
presiding officer shall at the same time serve all parties with a 
statement describing the right of any defendant determined to be liable 
for a civil penalty or assessment to file a motion for reconsideration 
or a notice of appeal. If the presiding officer fails to meet the 
deadline contained in this paragraph, he or she shall notify the parties 
of the reason for the delay and shall set a new deadline.
    (d) Unless the initial decision of the presiding officer is timely 
appealed to the Environmental Appeals Board, or a motion for 
reconsideration of the initial decision is timely filed, the initial 
decision shall constitute the final decision of the Environmental 
Appeals Board and shall be final and binding on the parties 30 days 
after it is issued by the presiding officer.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327, Feb. 13, 1992]

[[Page 302]]



Sec. 27.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the presiding officer.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The presiding officer may dispose of a motion for 
reconsideration by denying it or by issuing a revised intial decision.
    (f) If the presiding officer denies a motion for reconsideration, 
the initial decision shall constitute the final decision of the 
Environmental Appeals Board and shall be final and binding on the 
parties 30 days after the presiding officer denies the motion, unless 
the initial decision is timely appealed to the Environmental Appeals 
Board in accordance with Sec. 27.39.
    (g) If the presiding officer issued a revised initial decision, that 
decision shall constitute the final decision of the Environmental 
Appeals Board and shall be final and binding on the parties 30 days 
after it is issued, unless it is timely appealed to the Environmental 
Appeals Board in accordance with Sec. 27.39.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327, Feb. 13, 1992]



Sec. 27.39  Appeal to authority head.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the Environmental Appeals Board 
by filing a notice of appeal with the hearing clerk in accordance with 
this section.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the presiding officer issues an initial decision. However, if 
another party files a motion for reconsideration under Sec. 27.38, 
consideration of the appeal shall be stayed automatically pending 
resolution of the motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the presiding officer denies 
the motion or issues a revised initial decision, whichever applies.
    (3) The Environmental Appeals Board may extend the initial 30 day 
period for an additional 30 days if the defendant files a request for an 
extension within the initial 30 day period and shows good cause.
    (c) If the defendant filed a timely notice of appeal, and the time 
for filing motions for reconsideration under Sec. 27.38 has expired, the 
presiding officer shall forward the record of the proceeding to the 
Environmental Appeals Board.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the Environmental 
Appeals Board.
    (g) There is no right to appeal any interlocutory ruling by the 
presiding officer.
    (h) In reviewing the initial decision, the Environmental Appeals 
Board shall not consider any objection that was not raised before the 
presiding officer unless a demonstration is made of extraordinary 
circumstances causing the failure to raise the objection.
    (i) If any party demonstrates to the satisfaction of the 
Environmental Appeals Board that additional evidence not presented at 
such hearing is material and that there were reasonable grounds for the 
failure to present such evidence at such hearing, the Environmental 
Appeals Board shall remand the

[[Page 303]]

matter to the presiding officer for consideration of such additional 
evidence.
    (j) The Environmental Appeals Board may affirm, reduce, reverse, 
compromise, remand, or settle any penalty or assessment, determined by 
the presiding officer in any initial decision.
    (k) The Environmental Appeals Board shall promptly serve each party 
to the appeal with a copy of the decision of the Environmental Appeals 
Board and a statement describing the right of any person determined to 
be liable for a civil penalty or assessment to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the Environmental 
Appeals Board serves the defendant with a copy of the Environmental 
Appeals Board's decision, a determination that a defendant is liable 
under Sec. 27.3 is final and is not subject to judicial review.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327, Feb. 13, 1992]



Sec. 27.40  Stay ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the Environmental 
Appeals Board a written finding that continuation of the administrative 
process described in this part with respect to a claim or statement may 
adversely affect any pending or potential criminal or civil action 
related to such claim or statement, the Environmental Appeals Board 
shall stay the process immediately. The Environmental Appeals Board may 
order the process resumed only upon receipt of the written authorization 
of the Attorney General.

[57 FR 5327, Feb. 13, 1992]



Sec. 27.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the Environmental 
Appeals Board.
    (b) No administrative stay is available following a final decision 
of the Environmental Appeals Board.

[57 FR 5327, Feb. 13, 1992]



Sec. 27.42  Judicial Review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the Environmental Appeals Board imposing penalties or 
assessments under this part and specifies the procedures for such 
review.

[57 FR 5327, Feb. 13, 1992]



Sec. 27.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec. 27.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. Sec. 27.42 or 27.43, or 
any amount agreed upon in a compromise or settlement under Sec. 27.46, 
may be collected by administrative offset under 31 U.S.C. 3716, except 
that an administrative offset may not be made under this section against 
a refund of an overpayment of Federal taxes, then or later owing by the 
United States to the defendant.



Sec. 27.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 27.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the presiding officer issues an initial decision.
    (c) The Environmental Appeals Board has exclusive authority to 
compromise or settle a case under this part at any time after the date 
on which the presiding officer issues an initial decision,

[[Page 304]]

except during the pendency of any review under Sec. 27.42 or during the 
pendency of any action to collect penalties and assessments under 
Sec. 27.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 27.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the Environmental Appeals Board, or the Attorney 
General, as appropriate. The reviewing official may recommend settlement 
terms to the Environmental Appeals Board or the Attorney General, as 
appropriate.
    (f) Any compromise or settlement must be in writing.

[45 FR 24363, Apr. 9, 1980, as amended at 57 FR 5327, Feb. 13, 1992]



Sec. 27.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 27.8 within 6 years after the 
date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of a 
notice under Sec. 27.10(b) shall be deemed a notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



Sec. 27.48  Delegated functions.

    The Administrator delegates authority to the Environmental Appeals 
Board to issue final decisions in appeals filed under this part. An 
appeal directed to the Administrator, rather than the Environmental 
Appeals Board, will not be considered. This delegation of authority to 
the Environmental Appeals Board does not preclude the Environmental 
Appeals Board from referring an appeal or motion filed under this part 
to the Administrator for decision when the Environmental Appeals Board, 
in its descretion, deems it appropriate to do so. When an appeal or 
motion is referred to the Administrator, all parties shall be so 
notified and the rules in this part referring to the Environmental 
Appeals Board shall be interpreted as referring to the Administrator. If 
a case or motion is referred to the Administrator by the Environmental 
Appeals Board, the Administrator may consult with any EPA employee 
concerning the matter, provided such consultation does not violate the 
ex parte contacts restrictions set forth in Sec. Sec. 27.14 and 27.15 of 
this part.

[57 FR 5328, Feb. 13, 1992]



PART 29--INTERGOVERNMENTAL REVIEW OF ENVIRONMENTAL PROTECTION AGENCY PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
29.1  What is the purpose of these regulations?
29.2  What definitions apply to these regulations?
29.3  What programs and activities of the Environmental Protection 
          Agency are subject to these regulations?
29.4  What are the Administrator's general responsibilities under the 
          Order?
29.5  What is the Administrator's obligation with respect to Federal 
          interagency coordination?
29.6  What procedures apply to the selection of programs and activities 
          under these regulations?
29.7  How does the Administrator communicate with State and local 
          officials concerning EPA programs and activities?
29.8  How does the Administrator provide States an opportunity to 
          comment on proposed Federal financial assistance and direct 
          Federal development?
29.9  How does the Administrator receive and respond to comments?
29.10  How does the Administrator make efforts to accommodate 
          intergovernmental concerns?
29.11  What are the Administrator's obligations in interstate 
          situations?
29.12  How may a State simplify, consolidate, or substitute federally 
          required State plans?
29.13  May the Administrator waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended Apr. 
8, 1983 (48 FR 15887); sec. 401 of the Intergovernmental Cooperation Act 
of 1968 as amended (31 U.S.C. 6506); sec. 204 of the Demonstration 
Cities and Metropolitan Development Act of 1966, as amended (42 U.S.C. 
3334).

    Source: 48 FR 29300, June 24, 1983, unless otherwise noted.

[[Page 305]]



Sec. 29.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982, 
and amended, on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968, as amended and section 204 of the Demonstration 
Cities and Metropolitan Development Act of 1966, as amended.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed Federal financial assistance and direct Federal development.
    (c) These regulations are intended to aid the internal management of 
the Environmental Protection Agency (EPA) and are not intended to create 
any right or benefit enforceable at law by a party against EPA or its 
officers.



Sec. 29.2  What definitions apply to these regulations?

    Administrator means the Administrator of the U.S. Environmental 
Protection Agency or an official or employee of the Agency acting for 
the Administrator under a delegation of authority.
    Agency means the U.S. Environmental Protection Agency (EPA). Order 
means Executive Order 12372, issued July 14, 1982, and amended April 8, 
1983, and titled ``Intergovernmental Review of Federal Programs.''
    States means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 29.3  What programs and activities of the Environmental Protection Agency are subject to these regulations?

    The Administrator publishes in the Federal Register a list of the 
EPA programs and activities that are subject to these regulations and 
identifies which of these are subject to the requirements of section 204 
of the Demonstration Cities and Metropolitan Development Act.



Sec. 29.4  What are the Administrator's general responsibilities under the Order?

    (a) The Administrator provides opportunities for consultation by 
elected officials of those State and local governments that would 
provide the non-Federal funds for, or that would be directly affected 
by, proposed Federal financial assistance from, or direct Federal 
development by, the EPA.
    (b) If a State adopts a process under the Order to review and 
coordinate proposed Federal financial assistance and direct Federal 
development, the Administrator to the extent permitted by law:
    (1) Uses the State process to determine official views of State and 
local elected officials;
    (2) Communicates with State and local elected officials as early in 
a program planning cycle as is reasonably feasible to explain specific 
plans and actions;
    (3) Makes efforts to accommodate State and local elected officials' 
concerns with proposed Federal financial assistance and direct Federal 
development that are communicated through the State process;
    (4) Allows the States to simplify and consolidate existing federally 
required State plan submissions;
    (5) Where State planning and budgeting systems are sufficient and 
where permitted by law, encourages the substitution of State plans for 
federally required State plans;
    (6) Seeks the coordination of views of affected State and local 
elected officials in one State with those of another State when proposed 
Federal financial assistance or direct Federal development has an impact 
on interstate metropolitan urban centers or other interstate areas; and
    (7) Supports State and local governments by discouraging the 
reauthorization or creation of any planning organization which is 
federally-funded, which has a limited purpose, and which is not 
adequately representative of, or accountable to, State or local elected 
officials,

[[Page 306]]



Sec. 29.5  What is the Administrator's obligation with respect to Federal interagency coordination?

    The Administrator, to the extent practicable, consults with and 
seeks advice from all other substantially affected Federal departments 
and agencies in an effort to assure full coordination between such 
agencies and EPA regarding programs and activities covered under these 
regulations.



Sec. 29.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A State may select any program or activity published in the 
Federal Register in accordance with Sec. 29.3 of this part for 
intergovernmental review under these regulations. Each State, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each State that adopts a process shall notify the Administrator 
of EPA programs and activities selected for that process.
    (c) A State may notify the Administrator of changes in its 
selections at any time. For each change, the State shall submit an 
assurance to the Administrator that the State has consulted with local 
elected officials regarding the change. EPA may establish deadlines by 
which States are required to inform the Administrator of changes in 
their program selections.
    (d) The Administrator uses a State's process as soon as feasible, 
depending on individual programs and activities, after the Administrator 
is notified of its selections.



Sec. 29.7  How does the Administrator communicate with State and local officials concerning the EPA programs and activities?

    (a) For those programs and activities covered by a State process 
under Sec. 29.6, the Administrator, to the extent permitted by law:
    (1) Uses the State process to determine views of State and local 
elected officials; and
    (2) Communicates with State and local elected officials, through the 
State process, as early in a program planning cycle as is reasonably 
feasible to explain specific plans and actions.
    (b) The Administrator provides notice of proposed Federal financial 
assistance or direct Federal development to directly affected State, 
areawide, regional, and local entities in a State if:
    (1) The State has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the State process.
This notice may be published in the Federal Register or issued by other 
means which EPA, in its discretion deems appropriate.



Sec. 29.8  How does the Administrator provide States an opportunity to comment on proposed Federal financial assistance and direct Federal development?

    (a) Except in unusual circumstances, the Administrator gives State 
processes or directly affected State, areawide, regional and local 
officials and entities:
    (1) At least 30 days from the date established by the Administrator 
to comment on proposed Federal financial assistance in the form of 
noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Administrator 
to comment on proposed direct Federal development or Federal financial 
assistance, other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Environmental 
Protection Agency have been delegated.
    (c) Applicants for programs and activities subject to section 204 of 
the Demonstration Cities and Metropolitan Development Act shall allow 
areawide agencies a 60-day opportunity for review and comment.



Sec. 29.9  How does the Administrator receive and respond to comments?

    (a) The Administrator follows the procedures in Sec. 29.10 if:
    (1) A State office or official is designated to act as a single 
point of contact between a State process and all Federal agencies, and
    (2) That office or official transmits a State process recommendation 
for a program selected under Sec. 29.6.

[[Page 307]]

    (b) The single point of contact is not obligated to transmit 
comments from State, areawide, regional or local officials and entities 
where there is no State process recommendation. However, if a State 
process recommendation is transmitted by a single point of contact, all 
comments from State, area-wide, regional, and local officials and 
entities that differ from it must also be transmitted.
    (c) If a State has not established a process, or is unable to submit 
a State process recommendation, the State, areawide, regional and local 
officials and entities may submit comments directly either to the 
applicant or to EPA.
    (d) If a program or activity is not selected for a State process, 
the State, areawide, regional and local officials and entities may 
submit comments either directly to the applicant or to EPA. In addition, 
if a State process recommendation for a nonselected program or activity 
is transmitted to EPA by the single point of contact, the Administrator 
follows the procedures of Sec. 29.10 of this part.
    (e) The Administrator considers comments which do not constitute a 
State process recommendation submitted under these regulations and for 
which the Administrator is not required to apply the procedures of 
Sec. 29.10 of this part, when such comments are provided by a single 
point of contact, by the applicant, or directly to the Agency by a 
commenting party.



Sec. 29.10  How does the Administrator make efforts to accommodate intergovernmental concerns?

    (a) If a State process provides a State process recommendation to 
the Agency through the State's single point of contact, the 
Administrator either:
    (1) Accepts the recommendation;
    (2) reaches a mutually agreeable solution with the State process; or
    (3) Provides the single point of contact with such written 
explanation of the decision, as the Administrator, in his or her 
discretion, deems appropriate. The Administrator may also supplement the 
written explanation by providing the explanation to the single point of 
contact by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Administrator informs the single point of contact that:
    (1) EPA will not implement its decision for at least ten days after 
the single point of contact receives the explanation; or
    (2) The Administrator has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec. 29.11  What are the Administrator's obligations in interstate situations?

    (a) The Administrator is responsible for:
    (1) Identifying proposed Federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in States which 
have adopted a process and selected an EPA program or activity.
    (3) Making efforts to identify and notify the affected State, 
areawide, regional, and local officials and entities in those States 
that do not adopt a process under the Order or do not select an EPA 
program or activity;
    (4) Responding in accordance with Sec. 29.10 of this part to a 
recommendation received from a designated areawide agency transmitted by 
a single point of contact, in cases in which the review, coordination, 
and communication with EPA were delegated.
    (b) The Administrator uses the procedures in Sec. 29.10 if a State 
process provides a State process recommendation to the Agency through a 
single point of contact.



Sec. 29.12  How may a State simplify, consolidate, or substitute federally required State plans?

    (a) As used in this section:
    (1) Simplify means that a State may develop its own format, choose 
its own submission date, and select the planning period for a State 
plan.

[[Page 308]]

    (2) Consolidate means that a State may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the State can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a State may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a State may decide to try to 
simplify, consolidate, or substitute federally required State plans 
without prior approval by the Administrator.
    (c) The Administrator reviews each State plan that a State has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet Federal requirements.



Sec. 29.13  May the Administrator waive any provision of these regulations?

    In an emergency, the Administrator may waive any provision of these 
regulations.

[[Page 309]]



            SUBCHAPTER B--GRANTS AND OTHER FEDERAL ASSISTANCE





PART 30--GRANTS AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS--Table of Contents




                           Subpart A--General

Sec.
30.1  Purpose.
30.2  Definitions.
30.3  Effect on other issuances.
30.4  Deviations.
30.5  Subawards.
30.6  Availability of OMB circulars.

                    Subpart B--Pre-Award Requirements

30.10  Purpose.
30.11  Pre-award policies.
30.12  Forms for applying for Federal assistance.
30.13  Debarment and suspension.
30.14  Special award conditions.
30.15  Metric system of measurement.
30.16  Resource Conservation and Recovery Act (RCRA).
30.17  Certifications and representations.
30.18  Hotel and motel fire safety.

                   Subpart C--Post-Award Requirements

                    Financial and Program Management

30.20  Purpose of financial and program management.
30.21  Standards for financial management systems.
30.22  Payment.
30.23  Cost sharing or matching.
30.24  Program income.
30.25  Revision of budget and program plans.
30.26  Non-Federal audits.
30.27  Allowable costs.
30.28  Period of availability of funds.

                           Property Standards

30.30  Purpose of property standards.
30.31  Insurance coverage.
30.32  Real property.
30.33  Federally-owned and exempt property.
30.34  Equipment.
30.35  Supplies and other expendable property.
30.36  Intangible property.
30.37  Property trust relationship.

                          Procurement Standards

30.40  Purpose of procurement standards.
30.41  Recipient responsibilities.
30.42  Codes of conduct.
30.43  Competition.
30.44  Procurement procedures.
30.45  Cost and price analysis.
30.46  Procurement records.
30.47  Contract administration.
30.48  Contract provisions.

                           Reports and Records

30.50  Purpose of reports and records.
30.51  Monitoring and reporting program performance.
30.52  Financial reporting.
30.53  Retention and access requirements for records.
30.54  Quality assurance.

                       Termination and Enforcement

30.60  Purpose of termination and enforcement.
30.61  Termination.
30.62  Enforcement.
30.63  Disputes.

                 Subpart D--After-the-Award Requirements

30.70  Purpose.
30.71  Closeout procedures.
30.72  Subsequent adjustments and continuing responsibilities.
30.73  Collection of amounts due.
Appendix to Part 30--Contract Provisions

    Authority: 7 U.S.C. 135 et seq.; 15 U.S.C. 2601 et seq.; 33 U.S.C. 
1251 et seq.; 42 U.S.C. 241, 242b, 243, 246, 300f, 300j-1, 300j-2, 300j-
3; 42 U.S.C. 1857 et seq.; 42 U.S.C. 7401 et seq.; 42 U.S.C. 6901 et 
seq.; 42 U.S.C. 9601 et seq.

    Source: 61 FR 6067, Feb. 15, 1996, unless otherwise noted.



                           Subpart A--General



Sec. 30.1  Purpose.

    This subpart establishes uniform administrative requirements for 
Federal grants and agreements awarded to institutions of higher 
education, hospitals, and other non-profit organizations. The 
Environmental Protection Agency (EPA) may not impose additional or 
inconsistent requirements, except as provided in Sec. Sec. 30.4, and 
30.14 or unless specifically required by Federal statute or Executive 
Order. Non-profit organizations that implement Federal programs for the 
States are also subject to State requirements.

[[Page 310]]



Sec. 30.2  Definitions.

    (a) Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    (b) Accrued income means the sum of:
    (1) Earnings during a given period from;
    (i) Services performed by the recipient; and
    (ii) Goods and other tangible property delivered to purchasers; and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    (c) Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    (d) Advance means a payment made by Treasury check or other 
appropriate payment mechanism to a recipient upon its request either 
before outlays are made by the recipient or through the use of 
predetermined payment schedules.
    (e) Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the Federal Government to an eligible recipient. The term does not 
include: technical assistance, which provides services instead of money; 
other assistance in the form of loans, loan guarantees, interest 
subsidies, or insurance; direct payments of any kind to individuals; 
and, contracts which are required to be entered into and administered 
under procurement laws and regulations.
    (f) Cash contributions means the recipient's cash outlay, including 
the outlay of money contributed to the recipient by third parties.
    (g) Closeout means the process by which a Federal awarding agency 
determines that all applicable administrative actions and all required 
work of the award have been completed by the recipient and Federal 
awarding agency.
    (h) Contract means a procurement contract under an award or 
subaward, and a procurement subcontract under a recipient's or 
subrecipient's contract.
    (i) Cost sharing or matching means that portion of project or 
program costs not borne by the Federal Government.
    (j) Date of completion means the date on which all work under an 
award is completed or the date on the award document, or any supplement 
or amendment thereto, on which Federal sponsorship ends.
    (k) Disallowed costs means those charges to an award that the 
Federal awarding agency determines to be unallowable, in accordance with 
the applicable Federal cost principles or other terms and conditions 
contained in the award.
    (l) Equipment means tangible nonexpendable personal property 
including exempt property charged directly to the award having a useful 
life of more than one year and an acquisition cost of $5000 or more per 
unit. However, consistent with recipient policy, lower limits may be 
established.
    (m) Excess property means property under the control of any Federal 
awarding agency that, as determined by the head thereof, is no longer 
required for its needs or the discharge of its responsibilities.
    (n) Exempt property means tangible personal property acquired in 
whole or in part with Federal funds, where the Federal awarding agency 
has statutory authority to vest title in the recipient without further 
obligation to the Federal Government. An example of exempt property 
authority is contained in the Federal Grant and Cooperative Agreement 
Act (31 U.S.C. 6306), for property acquired under an award to conduct 
basic or applied research by a

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non-profit institution of higher education or non-profit organization 
whose principal purpose is conducting scientific research.
    (o) Federal awarding agency means the Federal agency that provides 
an award to the recipient.
    (p) Federal funds authorized means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods when permitted by agency regulations or agency 
implementing instructions.
    (q) Federal share of real property, equipment, or supplies means 
that percentage of the property's acquisition costs and any improvement 
expenditures paid with Federal funds.
    (r) Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    (s) Intangible property and debt instruments means, but is not 
limited to, trademarks, copyrights, patents and patent applications and 
such property as loans, notes and other debt instruments, lease 
agreements, stock and other instruments of property ownership, whether 
considered tangible or intangible.
    (t) Obligations means the amounts of orders placed, contracts and 
grants awarded, services received and similar transactions during a 
given period that require payment by the recipient during the same or a 
future period.
    (u) Outlays or expenditures means charges made to the project or 
program. They may be reported on a cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of cash disbursements 
for direct charges for goods and services, the amount of indirect 
expense incurred, the value of in-kind contributions applied, and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.
    (v) Personal property means property of any kind except real 
property. It may be tangible, having physical existence, or intangible, 
having no physical existence, such as copyrights, patents, or 
securities.
    (w) Prior approval means written approval by an authorized official 
evidencing prior consent.
    (x) Program income means gross income earned by the recipient that 
is directly generated by a supported activity or earned as a result of 
the award (see exclusions in Sec. 30.24 (e) and (h)). Program income 
includes, but is not limited to, income from fees for services 
performed, the use or rental of real or personal property acquired under 
federally-funded projects, the sale of commodities or items fabricated 
under an award, license fees and royalties on patents and copyrights, 
and interest on loans made with award funds. Interest earned on advances 
of Federal funds is not program income. Except as otherwise provided in 
Federal awarding agency regulations or the terms and conditions of the 
award, program income does not include the receipt of principal on 
loans, rebates, credits, discounts, etc., or interest earned on any of 
them.
    (y) Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    (z) Project period means the period established in the award 
document during which Federal sponsorship begins and ends.
    (aa) Property means, unless otherwise stated, real property, 
equipment, intangible property and debt instruments.
    (bb) Real property means land, including land improvements, 
structures and appurtenances thereto, but excludes movable machinery and 
equipment.
    (cc) Recipient means an organization receiving financial assistance 
directly

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from Federal awarding agencies to carry out a project or program. The 
term includes public and private institutions of higher education, 
public and private hospitals, and other quasi-public and private non-
profit organizations such as, but not limited to, community action 
agencies, research institutes, educational associations, and health 
centers. The term may include commercial organizations, foreign or 
international organizations (such as agencies of the United Nations) 
which are recipients, subrecipients, or contractors or subcontractors of 
recipients or subrecipients at the discretion of the Federal awarding 
agency. The term does not include government-owned contractor-operated 
facilities or research centers providing continued support for mission-
oriented, large-scale programs that are government-owned or controlled, 
or are designated as federally-funded research and development centers.
    (dd) Research and development means all research activities, both 
basic and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions. ``Research'' 
is defined as a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. ``Development'' is 
the systematic use of knowledge and understanding gained from research 
directed toward the production of useful materials, devices, systems, or 
methods, including design and development of prototypes and processes. 
The term research also includes activities involving the training of 
individuals in research techniques where such activities utilize the 
same facilities as other research and development activities and where 
such activities are not included in the instruction function.
    (ee) Small award means a grant or cooperative agreement not 
exceeding the small purchase threshold fixed at 41 U.S.C. 403(11) 
(currently $100,000).
    (ff) Subaward means an award of financial assistance in the form of 
money, or property in lieu of money, made under an award by a recipient 
to an eligible subrecipient or by a subrecipient to a lower tier 
subrecipient. The term includes financial assistance when provided by 
any legal agreement, even if the agreement is called a contract, but 
does not include procurement of goods and services nor does it include 
any form of assistance which is excluded from the definition of 
``award'' in paragraph (e) of this section.
    (gg) Subrecipient means the legal entity to which a subaward is made 
and which is accountable to the recipient for the use of the funds 
provided. The term may include foreign or international organizations 
(such as agencies of the United Nations) at the discretion of the 
Federal awarding agency.
    (hh) Supplies means all personal property excluding equipment, 
intangible property, and debt instruments as defined in this section, 
and inventions of a contractor conceived or first actually reduced to 
practice in the performance of work under a funding agreement (``subject 
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts, and Cooperative Agreements.''
    (ii) Suspension means an action by a Federal awarding agency that 
temporarily withdraws Federal sponsorship under an award, pending 
corrective action by the recipient or pending a decision to terminate 
the award by the Federal awarding agency. Suspension of an award is a 
separate action from suspension under Federal agency regulations 
implementing Executive Orders 12549 and 12689, ``Debarment and 
Suspension.''
    (jj) Termination means the cancellation of Federal sponsorship, in 
whole or in part, under an agreement at any time prior to the date of 
completion.
    (kk) Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    (ll) Unliquidated obligations, for financial reports prepared on a 
cash basis, means the amount of obligations incurred by the recipient 
that have not

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been paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the recipient for which 
an outlay has not been recorded.
    (mm) Unobligated balance means the portion of the funds authorized 
by the Federal awarding agency that has not been obligated by the 
recipient and is determined by deducting the cumulative obligations from 
the cumulative funds authorized.
    (nn) Unrecovered indirect cost means the difference between the 
amount awarded and the amount which could have been awarded under the 
recipient's approved negotiated indirect cost rate.
    (oo) Working capital advance means a procedure where by funds are 
advanced to the recipient to cover its estimated disbursement needs for 
a given initial period.



Sec. 30.3  Effect on other issuances.

    For awards subject to Circular A-110, all administrative 
requirements of codified program regulations, program manuals, handbooks 
and other nonregulatory materials which are inconsistent with the 
requirements of Circular A-110 shall be superseded, except to the extent 
they are required by statute, or authorized in accordance with the 
deviations provision in Sec. 30.4.



Sec. 30.4  Deviations.

    The Office of Management and Budget (OMB) may grant exceptions for 
classes of grants or recipients subject to the requirements of Circular 
A-110 when exceptions are not prohibited by statute. However, in the 
interest of maximum uniformity, exceptions from the requirements of 
Circular A-110 shall be permitted only in unusual circumstances. EPA may 
apply more restrictive requirements to a class of recipients when 
approved by OMB. EPA may apply less restrictive requirements when 
awarding small awards, except for those requirements which are 
statutory. Exceptions on a case-by-case basis may also be made by EPA.


Sec. 30.5  Subawards.

    Unless sections of Circular A-110 specifically exclude subrecipients 
from coverage, the provisions of Circular A-110 shall be applied to 
subrecipients performing work under awards if such subrecipients are 
institutions of higher education, hospitals or other non-profit 
organizations. State and local government subrecipients are subject to 
the provisions of regulations in 40 CFR part 31 implementing the grants 
management common rule, ``Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments,''.


Sec. 30.6  Availability of OMB circulars.

    OMB circulars cited in this part are available from the Office of 
Management and Budget (OMB) by writing to the Executive Office of the 
President, Publications Service, 725 17th Street, NW., Suite 200, 
Washington, DC 20503.


                    Subpart B--Pre-Award Requirements


Sec. 30.10  Purpose.

    Sections 30.11 through 30.18 prescribe forms and instructions and 
other pre-award matters to be used in applying for Federal awards.



Sec. 30.11  Pre-award policies.

    (a) Use of Grants and Cooperative Agreements, and Contracts. In each 
instance, EPA shall decide on the appropriate award instrument (i.e., 
grant, cooperative agreement, or contract). The Federal Grant and 
Cooperative Agreement Act (31 U.S.C. 6301-08) governs the use of grants, 
cooperative agreements and contracts. A grant or cooperative agreement 
shall be used only when the principal purpose of a transaction is to 
accomplish a public purpose of support or stimulation authorized by 
Federal statute. The statutory criterion for choosing between grants and 
cooperative agreements is that for the latter, ``substantial involvement 
is expected between the executive agency and the State, local 
government, or other recipient when carrying out the activity 
contemplated in the agreement.'' Contracts shall be used when the 
principal purpose is acquisition of property or services for the direct 
benefit or use of the Federal Government.

[[Page 314]]

    (b) Public notice and priority setting. EPA shall notify the public 
of its intended funding priorities for discretionary grant programs, 
unless funding priorities are established by Federal statute.
    (c) By submitting an application to EPA, the applicant grants EPA 
permission to share the application with technical reviewers both within 
and outside the Agency.



Sec. 30.12  Forms for applying for Federal assistance.

    (a) EPA shall comply with the applicable report clearance 
requirements of 5 CFR part 1320, ``Controlling Paperwork Burdens on the 
Public,'' with regard to all forms used by EPA in place of or as a 
supplement to the Standard Form 424 (SF-424) series.
    (b) Applicants shall use the SF-424 series or those forms and 
instructions prescribed by EPA.
    (c) For Federal programs covered by Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' the applicant shall 
complete the appropriate sections of the SF-424 (Application for Federal 
Assistance) indicating whether the application was subject to review by 
the State Single Point of Contact (SPOC). The name and address of the 
SPOC for a particular State can be obtained from EPA or the Catalog of 
Federal Domestic Assistance. The SPOC shall advise the applicant whether 
the program for which application is made has been selected by that 
State for review.
    (d) If the SF-424 form is not used EPA should indicate whether the 
application is subject to review by the State under Executive Order 
12372.



Sec. 30.13  Debarment and suspension.

    EPA and recipients shall comply with the nonprocurement debarment 
and suspension regulations in 40 CFR part 32 implementing Executive 
Orders 12549 and 12689, ``Debarment and Suspension.'' 40 CFR part 32 
restricts subawards and contracts with certain parties that are 
debarred, suspended or otherwise excluded from or ineligible for 
participation in Federal assistance programs or activities.



Sec. 30.14  Special award conditions.

    If an applicant or recipient: has a history of poor performance, is 
not financially stable; has a management system that does not meet the 
standards prescribed in Circular A-110; has not conformed to the terms 
and conditions of a previous award; or is not otherwise responsible, EPA 
may impose additional requirements as needed, provided that such 
applicant or recipient is notified in writing as to: the nature of the 
additional requirements, the reason why the additional requirements are 
being imposed, the nature of the corrective action needed, the time 
allowed for completing the corrective actions, and the method for 
requesting reconsideration of the additional requirements imposed. Any 
special conditions shall be promptly removed once the conditions that 
prompted them have been corrected.



Sec. 30.15  Metric system of measurement.

    The Metric Conversion Act, as amended by the Omnibus Trade and 
Competitiveness Act (15 U.S.C. 205), declares that the metric system is 
the preferred measurement system for U.S. trade and commerce. The Act 
requires each Federal agency to establish a date or dates in 
consultation with the Secretary of Commerce, when the metric system of 
measurement will be used in the agency's procurements, grants, and other 
business-related activities. Metric implementation may take longer where 
the use of the system is initially impractical or likely to cause 
significant inefficiencies in the accomplishment of federally-funded 
activities. EPA shall follow the provisions of Executive Order 12770, 
``Metric Usage in Federal Government Programs.''



Sec. 30.16  Resource Conservation and Recovery Act (RCRA).

    Resource Conservation and Recovery Act (RCRA) (Public Law 94-580 
codified at 42 U.S.C. 6962). Under the Act, any State agency or agency 
of a political subdivision of a State which is using appropriated 
Federal funds must comply with Section 6002. Section 6002 requires that 
preference be given in procurement programs to the purchase of specific 
products containing recycled

[[Page 315]]

materials identified in guidelines developed by EPA (40 CFR parts 247 
through 254). Accordingly, State and local institutions of higher 
education, hospitals, and non-profit organizations that receive direct 
Federal awards or other Federal funds shall give preference in their 
procurement programs funded with Federal funds to the purchase of 
recycled products pursuant to EPA's guidelines. Further, pursuant to 
Executive Order 12873 (dated October 20, 1993) recipients are to print 
documents/reports prepared under an EPA award of assistance double sided 
on recycled paper. This requirement does not apply to Standard Forms. 
These forms are printed on recycled paper as available through the 
General Services Administration.



Sec. 30.17  Certifications and representations.

    Unless prohibited by statute or codified regulation, EPA will allow 
recipients to submit certifications and representations required by 
statute, Executive Order, or regulation on an annual basis, if the 
recipients have ongoing and continuing relationships with the agency. 
Annual certifications and representations shall be signed by responsible 
officials with the authority to ensure recipients' compliance with the 
pertinent requirements.



Sec. 30.18  Hotel and motel fire safety.

    The Hotel and Motel Fire Safety Act of 1990 (Public Law 101-391) 
establishes a number of fire safety standards which must be met for 
hotels and motels. The law provides further that Federal funds may not 
be used to sponsor a conference, meeting, or training seminar held in a 
hotel or motel which does not meet the law's fire protection and control 
guidelines. If necessary, the head of the Federal agency may waive this 
prohibition in the public interest.



                   Subpart C--Post-Award Requirements

                    Financial and Program Management



Sec. 30.20  Purpose of financial and program management.

    Sections 30.21 through 30.28 prescribe standards for financial 
management systems, methods for making payments and rules for: 
satisfying cost sharing and matching requirements, accounting for 
program income, budget revision approvals, making audits, determining 
allowability of cost, and establishing fund availability.



Sec. 30.21  Standards for financial management systems.

    (a) EPA shall require recipients to relate financial data to 
performance data and develop unit cost information whenever practical.
    (b) Recipients' financial management systems shall provide for the 
following.
    (1) Accurate, current and complete disclosure of the financial 
results of each federally-sponsored project or program in accordance 
with the reporting requirements set forth in Sec. 30.52. If EPA requires 
reporting on an accrual basis from a recipient that maintains its 
records on other than an accrual basis, the recipient shall not be 
required to establish an accrual accounting system. These recipients may 
develop such accrual data for its reports on the basis of an analysis of 
the documentation on hand.
    (2) Records that identify adequately the source and application of 
funds for federally-sponsored activities. These records shall contain 
information pertaining to Federal awards, authorizations, obligations, 
unobligated balances, assets, outlays, income and interest.
    (3) Effective control over and accountability for all funds, 
property and other assets. Recipients shall adequately safeguard all 
such assets and assure they are used solely for authorized purposes.
    (4) Comparison of outlays with budget amounts for each award. 
Whenever appropriate, financial information should be related to 
performance and unit cost data.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes by the recipient. To the extent that the provisions 
of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, 
payment methods of State

[[Page 316]]

agencies, instrumentalities, and fiscal agents shall be consistent with 
CMIA Treasury-State Agreements or the CMIA default procedures codified 
at 31 CFR part 205, ``Withdrawal of Cash from the Treasury for Advances 
under Federal Grant and Other Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable Federal cost principles and the terms and conditions 
of the award.
    (7) Accounting records including cost accounting records that are 
supported by source documentation.
    (c) Where the EPA guarantees or insures the repayment of money 
borrowed by the recipient, the recipient shall provide adequate bonding 
and insurance if the bonding and insurance requirements of the recipient 
are not deemed adequate to protect the interest of the Federal 
Government.
    (d) Recipients shall obtain adequate fidelity bond coverage where 
coverage to protect the Federal Government's interest is insufficient.
    (e) Where bonds are required in the situations described above, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties, as prescribed in 31 CFR part 223, ``Surety 
Companies Doing Business with the United States.''



Sec. 30.22  Payment.

    (a) Payment methods shall minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities shall 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR part 205.
    (b) Recipients are to be paid in advance, provided they maintain or 
demonstrate the willingness to maintain: written procedures that 
minimize the time elapsing between the transfer of funds and 
disbursement by the recipient; and financial management systems that 
meet the standards for fund control and accountability as established in 
Sec. 30.21. Cash advances to a recipient organization shall be limited 
to the minimum amounts needed and be timed to be in accordance with the 
actual, immediate cash requirements of the recipient organization in 
carrying out the purpose of the approved program or project. The timing 
and amount of cash advances shall be as close as is administratively 
feasible to the actual disbursements by the recipient organization for 
direct program or project costs and the proportionate share of any 
allowable indirect costs.
    (c) Whenever possible, advances shall be consolidated to cover 
anticipated cash needs for all awards made by the EPA to the recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
Treasury check and electronic funds transfer.
    (2) Advance payment mechanisms are subject to 31 CFR part 205.
    (3) Recipients shall be authorized to submit requests for advances 
and reimbursements at least monthly when electronic fund transfers are 
not used.
    (d) Requests for Treasury check advance payment shall be submitted 
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as 
may be authorized by OMB. This form is not to be used when Treasury 
check advance payments are made to the recipient automatically through 
the use of a predetermined payment schedule or if precluded by special 
instructions for electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
paragraph (b) of this section cannot be met. EPA may also use this 
method on any construction agreement, or if the major portion of the 
construction project is accomplished through private market financing or 
Federal loans, and the Federal assistance constitutes a minor portion of 
the project.
    (1) When the reimbursement method is used, EPA shall make payment 
within 30 days after receipt of the billing, unless the billing is 
improper.
    (2) Recipients shall be authorized to submit request for 
reimbursement at least monthly when electronic funds transfers are not 
used.
    (f) If a recipient cannot meet the criteria for advance payments and 
EPA has determined that reimbursement is not feasible because the 
recipient lacks sufficient working capital, EPA may

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provide cash on a working capital advance basis. Under this procedure, 
EPA shall advance cash to the recipient to cover its estimated 
disbursement needs for an initial period generally geared to the 
awardee's disbursing cycle. Thereafter, EPA shall reimburse the 
recipient for its actual cash disbursements. The working capital advance 
method of payment shall not be used for recipients unwilling or unable 
to provide timely advances to their subrecipient to meet the 
subrecipient's actual cash disbursements.
    (g) To the extent available, recipients shall disburse funds 
available from repayments to and interest earned on a revolving fund, 
program income, rebates, refunds, contract settlements, audit recoveries 
and interest earned on such funds before requesting additional cash 
payments.
    (h) Unless otherwise required by statute, EPA shall not withhold 
payments for proper charges made by recipients at any time during the 
project period unless paragraph (h)(1) or (2) of this section applies.
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or Federal reporting 
requirements.
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States as defined in OMB Circular A-129, ``Managing Federal 
Credit Programs.'' Under such conditions, EPA may, upon reasonable 
notice, inform the recipient that payments shall not be made for 
obligations incurred after a specified date until the conditions are 
corrected or the indebtedness to the Federal Government is liquidated.
    (i) Standards governing the use of banks and other institutions as 
depositories of funds advanced under awards are as follows.
    (1) Except for situations described in paragraph (i)(2) of this 
section, EPA shall not require separate depository accounts for funds 
provided to a recipient or establish any eligibility requirements for 
depositories for funds provided to a recipient. However, recipients must 
be able to account for the receipt, obligation and expenditure of funds.
    (2) Advances of Federal funds shall be deposited and maintained in 
insured accounts whenever possible.
    (j) Consistent with the national goal of expanding the opportunities 
for women-owned and minority-owned business enterprises, recipients 
shall be encouraged to use women-owned and minority-owned banks (a bank 
which is owned at least 50 percent by women or minority group members).
    (k) Recipients shall maintain advances of Federal funds in interest 
bearing accounts, unless paragraph (k) (1), (2) or (3) of this section 
applies.
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (l) For those entities where CMIA and its implementing regulations 
do not apply, interest earned on Federal advances deposited in interest 
bearing accounts shall be remitted annually to Department of Health and 
Human Services, Payment Management System, P.O. Box 6021, Rockville, MD 
20852. Interest amounts up to $250 per year may be retained by the 
recipient for administrative expense. State universities and hospitals 
shall comply with CMIA, as it pertains to interest. If an entity subject 
to CMIA uses its own funds to pay pre-award costs for discretionary 
awards without prior written approval from EPA, it waives its right to 
recover the interest under CMIA. In keeping with Electronic Funds 
Transfer rules, (31 CFR Part 206), interest should be remitted to the 
HHS Payment Management System through an electronic medium such as the 
FEDWIRE Deposit system. Recipients which do not have this capability 
should use a check.
    (m) Except as noted elsewhere in Circular A-110, only the following 
forms shall be authorized for the recipients in requesting advances and 
reimbursements. EPA shall not require more than an original and two 
copies of these forms.

[[Page 318]]

    (1) SF-270, Request for Advance or Reimbursement. EPA shall adopt 
the SF-270 as a standard form for all nonconstruction programs when 
electronic funds transfer or predetermined advance methods are not used. 
However, EPA has the option of using this form for construction programs 
in lieu of the SF-271, ``Outlay Report and Request for Reimbursement for 
Construction Programs.''
    (2) SF-271, Outlay Report and Request for Reimbursement for 
Construction Programs. EPA shall adopt the SF-271 as the standard form 
to be used for requesting reimbursement for construction programs. 
However, the SF-270 may be substituted when EPA determines that it 
provides adequate information to meet its needs.



Sec. 30.23  Cost sharing or matching.

    EPA shall not require cost sharing or matching unless required by 
statute, regulation, Executive Order, or official Agency policy.
    (a) All contributions, including cash and third party in-kind, shall 
be accepted as part of the recipient's cost sharing or matching when 
such contributions meet all of the following criteria.
    (1) Are verifiable from the recipient's records.
    (2) Are not included as contributions for any other federally-
assisted project or program.
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) Are allowable under the applicable cost principles.
    (5) Are not paid by the Federal Government under another award, 
except where authorized by Federal statute to be used for cost sharing 
or matching.
    (6) Are identified in the approved budget.
    (7) Conform to other provisions of Circular A-110, as applicable.
    (b) Unrecovered indirect costs may be included as part of cost 
sharing or matching only with the prior approval of the EPA Award 
Official.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If, after consultation with Agency property management personnel, the 
EPA Award Official authorizes recipients to donate buildings or land for 
construction or facilities acquisition projects or long-term use, the 
value of the donated property for cost sharing or matching shall be the 
lesser of paragraph (c) (1) or (2) of this section.
    (1) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation.
    (2) The current fair market value. However, when there is sufficient 
justification, the EPA Award Official may approve the use of the current 
fair market value of the donated property, even if it exceeds the 
certified value at the time of donation to the project.
    (d) Volunteer services furnished by professional and technical 
personnel, consultants, and other skilled and unskilled labor may be 
counted as cost sharing or matching if the service is an integral and 
necessary part of an approved project or program. Rates for volunteer 
services shall be consistent with those paid for similar work in the 
recipient's organization. In those instances in which the required 
skills are not found in the recipient organization, rates shall be 
consistent with those paid for similar work in the labor market in which 
the recipient competes for the kind of services involved. In either 
case, paid fringe benefits that are reasonable, allowable, and allocable 
may be included in the valuation.
    (e) When an employer other than the recipient furnishes the services 
of an employee, these services shall be valued at the employee's regular 
rate of pay (plus an amount of fringe benefits that are reasonable, 
allowable, and allocable, but exclusive of overhead costs), provided 
these services are in the same skill for which the employee is normally 
paid.
    (f) Donated supplies may include such items as expendable equipment, 
office supplies, laboratory supplies or workshop and classroom supplies. 
Value assessed to donated supplies included in the cost sharing or 
matching share shall be reasonable and shall not exceed the fair market 
value of the property at the time of the donation.
    (g) The method used for determining cost sharing or matching for 
donated

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equipment, buildings and land for which title passes to the recipient 
may differ according to the purpose of the award, if paragraph (g) (1) 
or (2) of this section applies.
    (1) If the purpose of the award is to assist the recipient in the 
acquisition of equipment, buildings or land, the total value of the 
donated property may be claimed as cost sharing or matching.
    (2) If the purpose of the award is to support activities that 
require the use of equipment, buildings or land, normally only 
depreciation or use charges for equipment and buildings may be made. 
However, the full value of equipment or other capital assets and fair 
rental charges for land may be allowed, provided that the EPA technical 
program office, after consultation with EPA property management 
personnel, has approved the charges.
    (h) The value of donated property shall be determined in accordance 
with the usual accounting policies of the recipient, with the following 
qualifications.
    (1) The value of donated land and buildings shall not exceed its 
fair market value at the time of donation to the recipient as 
established by an independent appraiser (e.g., certified real property 
appraiser or General Services Administration representative) and 
certified by a responsible official of the recipient.
    (2) The value of donated equipment shall not exceed the fair market 
value of equipment of the same age and condition at the time of 
donation.
    (3) The value of donated space shall not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (4) The value of loaned equipment shall not exceed its fair rental 
value.
    (5) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.
    (i) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (ii) The basis for determining the valuation for personal service, 
material, equipment, buildings and land shall be documented.



Sec. 30.24  Program income.

    (a) EPA shall apply the standards set forth in this section in 
requiring recipient organizations to account for program income related 
to projects financed in whole or in part with Federal funds.
    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period shall be retained by the 
recipient and, in accordance with EPA regulations or the terms and 
conditions of the award, shall be used in one or more of the ways listed 
in the following.
    (1) Added to funds committed to the project by EPA and recipient and 
used to further eligible project or program objectives.
    (2) Used to finance the non-Federal share of the project or program.
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs on which the Federal share of costs 
is based.
    (c) When EPA authorizes the disposition of program income as 
described in paragraphs (b)(1) or (2) of this section, program income in 
excess of any limits stipulated shall be used in accordance with 
paragraph (b)(3) of this section.
    (d) In the event that the EPA does not specify in its regulations or 
the terms and conditions of the award how program income is to be used, 
paragraph (b)(3) of this section shall apply automatically to all 
projects or programs except research. For awards that support research, 
paragraph (b)(1) of this section shall apply automatically unless EPA 
indicates in the terms and conditions another alternative on the award 
or the recipient is subject to special award conditions, as indicated in 
Sec. 30.14.
    (e) Unless EPA regulations or the terms and conditions of the award 
provide otherwise, recipients shall have no obligation to the Federal 
Government regarding program income earned after the end of the project 
period.
    (f) If authorized by EPA regulations or the terms and conditions of 
the award, costs incident to the generation of program income may be 
deducted

[[Page 320]]

from gross income to determine program income, provided these costs have 
not been charged to the award.
    (g) Proceeds from the sale of property shall be handled in 
accordance with the requirements of the Property Standards (See 
Sec. Sec. 30.30 through 30.37).
    (h) Unless EPA regulations or the terms and condition of the award 
provide otherwise, recipients shall have no obligation to the Federal 
Government with respect to program income earned from license fees and 
royalties for copyrighted material, patents, patent applications, 
trademarks, and inventions produced under an award. However, Patent and 
Trademark Amendments (35 U.S.C. 18) apply to inventions made under an 
experimental, developmental, or research award.



Sec. 30.25  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. The budget shall include 
both the Federal and non-Federal share. It shall be related to 
performance for program evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) For nonconstruction awards, unless EPA regulations provide 
otherwise, recipients shall request prior written approvals from:
    (1) The EPA Award Official for the following:
    (i) Change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (ii) The need for additional Federal funding.
    (iii) The inclusion of costs that require prior approval in 
accordance with OMB Circular A-21, ``Cost Principles for Institutions of 
Higher Education,'' OMB Circular A-122, ``Cost Principles for Non-Profit 
Organizations,'' or 45 CFR part 74 Appendix E, ``Principles for 
Determining Costs Applicable to Research and Development under Grants 
and Contracts with Hospitals,'' or 48 CFR part 31, ``Contract Cost 
Principles and Procedures,'' as applicable.
    (2) The technical program office for the following:
    (i) Change in a key person specified in the application or award 
document.
    (ii) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the approved project 
director or principal investigator.
    (iii) The transfer of amounts budgeted for indirect costs to absorb 
increases in direct costs, or vice versa.
    (iv) The transfer of funds allotted for training allowances (direct 
payment to trainees) to other categories of expense.
    (v) Unless described in the application and funded in the approved 
award, the subaward, transfer or contracting out of any work under an 
award. This provision does not apply to the purchase of supplies, 
material, equipment or general support services.
    (d) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (e) Except for requirements listed in paragraphs (c)(1)(i) and (ii) 
of this section, the EPA Award Official may waive cost-related and 
administrative prior written approvals required by this part and OMB 
cost principles. For awards that support research, these prior approval 
requirements are automatically waived unless:
    (1) EPA provides otherwise in the award or agency regulation or
    (2) One of the conditions in paragraph (f)(2)(i) of this section 
applies.
    (f) Recipients are authorized without prior approval or a waiver to:
    (1) Incur pre-award costs 90 calendar days prior to award.
    (i) Pre-award costs incurred more than 90 calendar days prior to 
award require the prior approval of the EPA Award Official.
    (ii) The applicant must include all pre-award costs in its 
application.
    (iii) The applicant incurs such costs at its own risk (i.e., EPA is 
under no obligation to reimburse such costs if for any reason the 
recipient does not receive an award or if the award is less than 
anticipated and inadequate to cover such costs).

[[Page 321]]

    (iv) EPA will only allow pre-award costs without approval if there 
are sufficient programmatic reasons for incurring the expenditures prior 
to the award (e.g., time constraints, weather factors, etc.), they are 
in conformance with the appropriate cost principles, and any procurement 
complies with the requirements of this rule.
    (2) Extend the expiration date of the award one time for up to 12 
months.
    (i) A one-time extension may not be initiated if:
    (A) The terms and conditions of the award prohibit the extension;
    (B) The extension requires additional Federal funds; or
    (C) The extension involves any change in the approved objectives or 
scope of the project.
    (ii) For one-time extensions, the recipient must notify the EPA 
Award Official in writing with the supporting reasons and revised 
expiration date at least 10 days before the expiration date specified in 
the award.
    (iii) This one-time extension may not be exercised merely for the 
purpose of using unobligated balances.
    (3) Carry forward unobligated balances to subsequent funding periods 
providing the recipient notifies the EPA Award Official by means of the 
Financial Status Report.
    (g) The EPA technical program office may, at its option, restrict 
the transfer of funds among direct cost categories or programs, 
functions and activities for awards in which the Federal share of the 
project exceeds $100,000 and the cumulative amount of such transfers 
exceeds or is expected to exceed 10 percent of the total budget as last 
approved by EPA. Except as provided for at paragraph (c) of this 
section, for awards in which the Federal share is less than $100,000 
there are no restrictions on transfers of funds among direct cost 
categories. EPA shall not permit a transfer that would cause any Federal 
appropriation or part thereof to be used for purposes other than those 
consistent with the original intent of the appropriation.
    (h) All other changes to nonconstruction budgets, except for the 
changes described in paragraph (j) of this section, do not require prior 
approval.
    (i) For construction awards, recipients shall request prior written 
approval promptly from EPA for budget revisions whenever paragraph 
(h)(1), (2) or (3) of this section applies.
    (1) The revision results from changes in the scope or the objective 
of the project or program.
    (2) The need arises for additional Federal funds to complete the 
project.
    (3) A revision is desired which involves specific costs for which 
prior written approval requirements may be imposed consistent with 
applicable OMB cost principles listed in Sec. 30.27.
    (j) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (k) When EPA makes an award that provides support for both 
construction and nonconstruction work, EPA may require the recipient to 
request prior approval before making any fund or budget transfers 
between the two types of work supported.
    (l) For both construction and nonconstruction awards, EPA shall 
require recipients to notify the agency in writing promptly whenever the 
amount of Federal authorized funds is expected to exceed the needs of 
the recipient for the project period by more than $5000 or five percent 
of the Federal award, whichever is greater. This notification shall not 
be required if an application for additional funding is submitted for a 
continuation award.
    (m) When requesting approval for budget revisions, recipients shall 
use the budget forms that were used in the application unless the EPA 
indicates that a letter clearly describing the details of the request 
will suffice.
    (n) Within 30 calendar days from the date of receipt of the request 
for budget revisions, EPA shall review the request and notify the 
recipient whether the budget revisions have been approved. If the 
revision is still under consideration at the end of 30 calendar days, 
EPA shall inform the recipient in writing of the date when the recipient 
may expect the decision.



Sec. 30.26  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or other non-profit organizations shall be

[[Page 322]]

subject to the audit requirements contained in OMB Circular A-133, 
``Audits of Institutions of Higher Education and Other Non-Profit 
Institutions.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act (31 U.S.C. 7501-7) and 40 
CFR part 31 implementing OMB Circular A-128, ``Audits of State and Local 
Governments.''
    (c) Hospitals not covered by the audit provisions of OMB Circular A-
133 shall be subject to the audit requirements of EPA.
    (d) Commercial organizations shall be subject to the audit 
requirements of EPA or the prime recipient as incorporated into the 
award document.



Sec. 30.27  Allowable costs.

    (a) For each kind of recipient, there is a set of Federal principles 
for determining allowable costs. Allowability of costs shall be 
determined in accordance with the cost principles applicable to the 
entity incurring the costs. Thus, allowability of costs incurred by 
State, local or federally-recognized Indian tribal governments is 
determined in accordance with the provisions of OMB Circular A-87, 
``Cost Principles for State and Local Governments.'' The allowability of 
costs incurred by non-profit organizations is determined in accordance 
with the provisions of OMB Circular A-122, ``Cost Principles for Non-
Profit Organizations.'' The allowability of costs incurred by 
institutions of higher education is determined in accordance with the 
provisions of OMB Circular A-21, ``Cost Principles for Educational 
Institutions.'' The allowability of costs incurred by hospitals is 
determined in accordance with the provisions of Appendix E of 45 CFR 
part 74, ``Principles for Determining Costs Applicable to Research and 
Development Under Grants and Contracts with Hospitals.'' The 
allowability of costs incurred by commercial organizations and those 
non-profit organizations listed in Attachment C to Circular A-122 is 
determined in accordance with the provisions of the Federal Acquisition 
Regulation (FAR) at 48 CFR part 31. In addition, EPA's annual 
Appropriations Acts may contain restrictions on the use of assistance 
funds. For example, the Acts may prohibit the use of funds to support 
intervention in Federal regulatory or adjudicatory proceedings.
    (b) EPA will limit its participation in the salary rate (excluding 
overhead) paid to individual consultants retained by recipients or by a 
recipient's contractors or subcontractors to the maximum daily rate for 
level 4 of the Executive Schedule unless a greater amount is authorized 
by law. (Recipient's may, however, pay consultants more than this 
amount.) This limitation applies to consultation services of designated 
individuals with specialized skills who are paid at a daily or hourly 
rate. This rate does not include transportation and subsistence costs 
for travel performed; recipients will pay these in accordance with their 
normal travel reimbursement practices. Contracts with firms for services 
which are awarded using the procurement requirements in this part are 
not affected by this limitation.



Sec. 30.28  Period of availability of funds.

    Where a funding period is specified, a recipient may charge to the 
grant only allowable costs resulting from obligations incurred during 
the funding period and any pre-award costs authorized by EPA.

                           Property Standards



Sec. 30.30  Purpose of property standards.

    Sections 30.31 through 30.37 set forth uniform standards governing 
management and disposition of property furnished by the Federal 
Government whose cost was charged to a project supported by a Federal 
award. EPA shall require recipients to observe these standards under 
awards and shall not impose additional requirements, unless specifically 
required by Federal statute. The recipient may use its own property 
management standards and procedures provided it observes the provisions 
of Sec. Sec. 30.31 through 30.37.



Sec. 30.31  Insurance coverage.

    Recipients shall, at a minimum, provide the equivalent insurance 
coverage for real property and equipment acquired with Federal funds as 
provided to property owned by the recipient. Federally-owned property 
need not be

[[Page 323]]

insured unless required by the terms and conditions of the award.



Sec. 30.32  Real property.

    EPA shall prescribe requirements for recipients concerning the use 
and disposition of real property acquired in whole or in part under 
awards. Unless otherwise provided by statute, such requirements, at a 
minimum, shall contain the following.
    (a) Title to real property shall vest in the recipient subject to 
the condition that the recipient shall use the real property for the 
authorized purpose of the project as long as it is needed and shall not 
encumber the property without approval of EPA.
    (b) The recipient shall obtain written approval by EPA for the use 
of real property in other federally-sponsored projects when the 
recipient determines that the property is no longer needed for the 
purpose of the original project. Use in other projects shall be limited 
to those under federally-sponsored projects (i.e., awards) or programs 
that have purposes consistent with those authorized for support by EPA.
    (c) When the real property is no longer needed as provided in 
paragraphs (a) and (b) of this section, the recipient shall request 
disposition instructions from EPA or its successor Federal awarding 
agency. EPA shall observe one or more of the following disposition 
instructions.
    (1) The recipient may be permitted to retain title without further 
obligation to the Federal Government after it compensates the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project.
    (2) The recipient may be directed to sell the property under 
guidelines provided by EPA and pay the Federal Government for that 
percentage of the current fair market value of the property attributable 
to the Federal participation in the project (after deducting actual and 
reasonable selling and fix-up expenses, if any, from the sales 
proceeds). When the recipient is authorized or required to sell the 
property, proper sales procedures shall be established that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) The recipient may be directed to transfer title to the property 
to the Federal Government or to an eligible third party provided that, 
in such cases, the recipient shall be entitled to compensation for its 
attributable percentage of the current fair market value of the 
property.



Sec. 30.33  Federally-owned and exempt property.

    (a) Federally-owned property. (1) Title to federally-owned property 
remains vested in the Federal Government. Recipients shall submit 
annually an inventory listing of federally-owned property in their 
custody to EPA's property management staff. Upon completion of the award 
or when the property is no longer needed, the recipient shall report the 
property to EPA's property management staff for further utilization.
    (2) If EPA has no further need for the property, it shall be 
declared excess and reported to the General Services Administration, 
unless EPA has statutory authority to dispose of the property by 
alternative methods (e.g., the authority provided by the Federal 
Technology Transfer Act (15 U.S.C. 3710 (I)) to donate research 
equipment to educational and non-profit organizations in accordance with 
Executive Order 12821, ``Improving Mathematics and Science Education in 
Support of the National Education Goals.'') Appropriate instructions 
shall be issued to the recipient by EPA's property management staff.
    (b) Exempt property. When statutory authority exists, EPA has the 
option to vest title to property acquired with Federal funds in the 
recipient without further obligation to the Federal Government and under 
conditions EPA considers appropriate. Such property is ``exempt 
property.'' Should EPA not establish conditions, title to exempt 
property upon acquisition shall vest in the recipient without further 
obligation to the Federal Government.



Sec. 30.34  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
shall vest

[[Page 324]]

in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with Federal 
funds to provide services to non-Federal outside organizations for a fee 
that is less than private companies charge for equivalent services, 
unless specifically authorized by Federal statute, for as long as the 
Federal Government retains an interest in the equipment.
    (c) The recipient shall use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds and shall not 
encumber the property without approval of EPA. When no longer needed for 
the original project or program, the recipient shall use the equipment 
in connection with its other federally-sponsored activities, in the 
following order of priority: Activities sponsored by EPA, then 
activities sponsored by other Federal awarding agencies.
    (d) During the time that equipment is used on the project or program 
for which it was acquired, the recipient shall make it available for use 
on other projects or programs if such other use will not interfere with 
the work on the project or program for which the equipment was 
originally acquired. First preference for such other use shall be given 
to other projects or programs sponsored by EPA; second preference shall 
be given to projects or programs sponsored by other Federal awarding 
agencies. If the equipment is owned by the Federal Government, use on 
other activities not sponsored by the Federal Government shall be 
permissible if authorized by EPA. User charges shall be treated as 
program income.
    (e) When acquiring replacement equipment, the recipient may use the 
equipment to be replaced as trade-in or sell the equipment and use the 
proceeds to offset the costs of the replacement equipment subject to the 
approval of EPA.
    (f) The recipient's property management standards for equipment 
acquired with Federal funds and federally-owned equipment shall include 
all of the following.
    (1) Equipment records shall be maintained accurately and shall 
include the following information.
    (i) A description of the equipment.
    (ii) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or other identification number.
    (iii) Source of the equipment, including the award number.
    (iv) Whether title vests in the recipient or the Federal Government.
    (v) Acquisition date (or date received, if the equipment was 
furnished by the Federal Government) and cost.
    (vi) Information from which one can calculate the percentage of 
Federal participation in the cost of the equipment (not applicable to 
equipment furnished by the Federal Government).
    (vii) Location and condition of the equipment and the date the 
information was reported.
    (viii) Unit acquisition cost.
    (ix) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates EPA for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.
    (3) A physical inventory of equipment shall be taken and the results 
reconciled with the equipment records at least once every two years. Any 
differences between quantities determined by the physical inspection and 
those shown in the accounting records shall be investigated to determine 
the causes of the difference. The recipient shall, in connection with 
the inventory, verify the existence, current utilization, and continued 
need for the equipment.
    (4) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft of the equipment. Any loss, 
damage, or theft of equipment shall be investigated and fully 
documented; if the equipment was owned by the Federal Government, the 
recipient shall promptly notify EPA.
    (5) Adequate maintenance procedures shall be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures shall be established

[[Page 325]]

which provide for competition to the extent practicable and result in 
the highest possible return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. For equipment with a current per unit fair market value of 
$5000 or more, the recipient may retain the equipment for other uses 
provided that compensation is made to the original Federal awarding 
agency or its successor. The amount of compensation shall be computed by 
applying the percentage of Federal participation in the cost of the 
original project or program to the current fair market value of the 
equipment. If the recipient has no need for the equipment, the recipient 
shall request disposition instructions from EPA. EPA shall determine 
whether the equipment can be used to meet the agency's requirements. If 
no requirement exists within that agency, the availability of the 
equipment shall be reported to the General Services Administration by 
EPA to determine whether a requirement for the equipment exists in other 
Federal agencies. EPA shall issue instructions to the recipient no later 
than 120 calendar days after the recipient's request and the following 
procedures shall govern.
    (1) If so instructed or if disposition instructions are not issued 
within 120 calendar days after the recipient's request, the recipient 
shall sell the equipment and reimburse EPA an amount computed by 
applying to the sales proceeds the percentage of Federal participation 
in the cost of the original project or program. However, the recipient 
shall be permitted to deduct and retain from the Federal share $500 or 
ten percent of the proceeds, whichever is less, for the recipient's 
selling and handling expenses.
    (2) If the recipient is instructed to ship the equipment elsewhere, 
the recipient shall be reimbursed by the Federal Government by an amount 
which is computed by applying the percentage of the recipient's 
participation in the cost of the original project or program to the 
current fair market value of the equipment, plus any reasonable shipping 
or interim storage costs incurred.
    (3) If the recipient is instructed to otherwise dispose of the 
equipment, the recipient shall be reimbursed by EPA for such costs 
incurred in its disposition.
    (4) EPA may reserve the right to transfer the title to the Federal 
Government or to a third party named by the Federal Government when such 
third party is otherwise eligible under existing statutes. Such transfer 
shall be subject to the following standards.
    (i) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (ii) EPA shall issue disposition instructions within 120 calendar 
days after receipt of a final inventory. The final inventory shall list 
all equipment acquired with grant funds and federally-owned equipment. 
If EPA fails to issue disposition instructions within the 120 calendar 
day period, the recipient shall apply the standards of this section, as 
appropriate.
    (iii) When EPA exercises its right to take title, the equipment 
shall be subject to the provisions for federally-owned equipment.



Sec. 30.35  Supplies and other expendable property.

    (a) Title to supplies and other expendable property shall vest in 
the recipient upon acquisition. If there is a residual inventory of 
unused supplies exceeding $5000 in total aggregate value upon 
termination or completion of the project or program and the supplies are 
not needed for any other federally-sponsored project or program, the 
recipient shall retain the supplies for use on non-Federal sponsored 
activities or sell them, but shall, in either case, compensate the 
Federal Government for its share. The amount of compensation shall be 
computed in the same manner as for equipment.
    (b) The recipient shall not use supplies acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute as long as the Federal 
Government retains an interest in the supplies.

[[Page 326]]



Sec. 30.36  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. EPA reserves a royalty-free, nonexclusive and irrevocable 
right to reproduce, publish, or otherwise use the work for Federal 
purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide regulations issued by 
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) Unless waived by EPA, the Federal Government has the right to 
paragraphs (c) (1) and (2) of this section.
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award.
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized purpose, 
and the recipient shall not encumber the property without approval of 
EPA. When no longer needed for the originally authorized purpose, 
disposition of the intangible property shall occur in accordance with 
the provisions of Sec. 30.34(g).



Sec. 30.37  Property trust relationship.

    Real property, equipment, intangible property and debt instruments 
that are acquired or improved with Federal funds shall be held in trust 
by the recipient as trustee for the beneficiaries of the project or 
program under which the property was acquired or improved. Agencies may 
require recipients to record liens or other appropriate notices of 
record to indicate that personal or real property has been acquired or 
improved with Federal funds and that use and disposition conditions 
apply to the property.

                          Procurement Standards



Sec. 30.40  Purpose of procurement standards.

    Sections 30.41 through 30.48 set forth standards for use by 
recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and other 
services with Federal funds. These standards are furnished to ensure 
that such materials and services are obtained in an effective manner and 
in compliance with the provisions of applicable Federal statutes and 
Executive Orders. No additional procurement standards or requirements 
shall be imposed by EPA upon recipients, unless specifically required by 
Federal statute or Executive Order or approved by OMB.



Sec. 30.41  Recipient responsibilities.

    The standards contained in this part do not relieve the recipient of 
the contractual responsibilities arising under its contract(s). The 
recipient is the responsible authority, without recourse to EPA, 
regarding the settlement and satisfaction of all contractual and 
administrative issues arising out of procurements entered into in 
support of an award or other agreement. This includes disputes, claims, 
protests of award, source evaluation or other matters of a contractual 
nature. Matters concerning violation of statute are to be referred to 
such Federal, State or local authority as may have proper jurisdiction.



Sec. 30.42  Codes of conduct.

    The recipient shall maintain written standards of conduct governing 
the performance of its employees engaged in the award and administration 
of contracts. No employee, officer, or agent shall participate in the 
selection, award, or administration of a contract supported by Federal 
funds if a real or apparent conflict of interest would be involved. Such 
a conflict would arise when the employee, officer, or agent, any member 
of his or her immediate family, his or her partner, or an organization 
which employs or is about to employ any of the parties indicated herein, 
has a financial or other interest in the firm selected for an award. The

[[Page 327]]

officers, employees, and agents of the recipient shall neither solicit 
nor accept gratuities, favors, or anything of monetary value from 
contractors, or parties to subagreements. However, recipients may set 
standards for situations in which the financial interest is not 
substantial or the gift is an unsolicited item of nominal value. The 
standards of conduct shall provide for disciplinary actions to be 
applied for violations of such standards by officers, employees, or 
agents of the recipient.



Sec. 30.43  Competition.

    All procurement transactions shall be conducted in a manner to 
provide, to the maximum extent practical, open and free competition. The 
recipient shall be alert to organizational conflicts of interest as well 
as noncompetitive practices among contractors that may restrict or 
eliminate competition or otherwise restrain trade. In order to ensure 
objective contractor performance and eliminate unfair competitive 
advantage, contractors that develop or draft specifications, 
requirements, statements of work, invitations for bids and/or requests 
for proposals shall be excluded from competing for such procurements. 
Awards shall be made to the bidder or offeror whose bid or offer is 
responsive to the solicitation and is most advantageous to the 
recipient, price, quality and other factors considered. Solicitations 
shall clearly set forth all requirements that the bidder or offeror 
shall fulfill in order for the bid or offer to be evaluated by the 
recipient. Any and all bids or offers may be rejected when it is in the 
recipient's interest to do so.



Sec. 30.44  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide for, at a minimum, that paragraphs (a) 
(1), (2) and (3) of this section apply.
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement for the Federal Government.
    (3) Solicitations for goods and services provide for all of the 
following.
    (i) A clear and accurate description of the technical requirements 
for the material, product or service to be procured. In competitive 
procurements, such a description shall not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms of functions to be performed or performance required, including 
the range of acceptable characteristics or minimum acceptable standards.
    (iv) The specific features of ``brand name or equal'' descriptions 
that bidders are required to meet when such items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.
    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment and are energy efficient.
    (b) Positive efforts shall be made by recipients to utilize small 
businesses, minority-owned firms, and women's business enterprises, 
whenever possible. Recipients of Federal awards shall take all of the 
following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange time frames for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-

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owned firms and women's business enterprises when a contract is too 
large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration and the Department of 
Commerce's Minority Business Development Agency in the solicitation and 
utilization of small businesses, minority-owned firms and women's 
business enterprises.
    (6) If the prime contractor awards subcontracts, requiring the 
contractor to take steps in paragraphs (b)(1) through (5) of this 
section.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) shall be determined by the recipient but shall be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting shall not 
be used.
    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources or accessibility to other necessary 
resources. In certain circumstances, contracts with certain parties are 
restricted by agencies' implementation of Executive Orders 12549 and 
12689, ``Debarment and Suspension.''
    (e) Recipients shall, on request, make available for EPA, pre-award 
review and procurement documents, such as request for proposals or 
invitations for bids, independent cost estimates, etc., when any of the 
following conditions apply.
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in EPA's implementation of 
Circular A-110.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $100,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.
    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.



Sec. 30.45  Cost and price analysis.

    Some form of cost or price analysis shall be made and documented in 
the procurement files in connection with every procurement action. Price 
analysis may be accomplished in various ways, including the comparison 
of price quotations submitted, market prices and similar indicia, 
together with discounts. Cost analysis is the review and evaluation of 
each element of cost to determine reasonableness, allocability and 
allowability.



Sec. 30.46  Procurement records.

    Procurement records and files for purchases in excess of the small 
purchase threshold shall include the following at a minimum: Basis for 
contractor selection; justification for lack of competition when 
competitive bids or offers are not obtained; and basis for award cost or 
price.



Sec. 30.47  Contract administration.

    A system for contract administration shall be maintained to ensure 
contractor conformance with the terms, conditions and specifications of 
the contract and to ensure adequate and timely follow up of all 
purchases. Recipients shall evaluate contractor performance and 
document, as appropriate, whether contractors have met the terms, 
conditions and specifications of the contract.



Sec. 30.48  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the following provisions in all contracts. 
The following

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provisions shall also be applied to subcontracts.
    (a) Contracts in excess of the small purchase threshold shall 
contain contractual provisions or conditions that allow for 
administrative, contractual, or legal remedies in instances in which a 
contractor violates or breaches the contract terms, and provide for such 
remedial actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold shall 
contain suitable provisions for termination by the recipient, including 
the manner by which termination shall be effected and the basis for 
settlement. In addition, such contracts shall describe conditions under 
which the contract may be terminated for default as well as conditions 
where the contract may be terminated because of circumstances beyond the 
control of the contractor.
    (c) Except as otherwise required by statute, an award that requires 
the contracting (or subcontracting) for construction or facility 
improvements shall provide for the recipient to follow its own 
requirements relating to bid guarantees, performance bonds, and payment 
bonds unless the construction contract or subcontract exceeds $100,000. 
For those contracts or subcontracts exceeding $100,000, EPA may accept 
the bonding policy and requirements of the recipient, provided EPA has 
made a determination that the Federal Government's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows.
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder shall, upon acceptance 
of his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by statute of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (4) Where bonds are required in the situations described herein, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties pursuant to 31 CFR part 223, ``Surety Companies 
Doing Business with the United States.''
    (d) All negotiated contracts (except those for less than the small 
purchase threshold) awarded by recipients shall include a provision to 
the effect that the recipient, EPA, the Comptroller General of the 
United States, or any of their duly authorized representatives, shall 
have access to any books, documents, papers and records of the 
contractor which are directly pertinent to a specific program for the 
purpose of making audits, examinations, excerpts and transcriptions.
    (e) All contracts, including small purchases, awarded by recipients 
and their contractors shall contain the procurement provisions of the 
Appendix to Circular A-110, as applicable.

                           Reports and Records



Sec. 30.50  Purpose of reports and records.

    Sections 30.51 through 30.53 set forth the procedures for monitoring 
and reporting on the recipient's financial and program performance and 
the necessary standard reporting forms. They also set forth record 
retention requirements.



Sec. 30.51  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 30.26.
    (b) EPA shall prescribe the frequency with which the performance 
reports shall be submitted. Except as provided in paragraph (f) of this 
section, performance reports shall not be required

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more frequently than quarterly or, less frequently than annually. Annual 
reports shall be due 90 calendar days after the grant year; quarterly or 
semi-annual reports shall be due 30 days after the reporting period. EPA 
may require annual reports before the anniversary dates of multiple year 
awards in lieu of these requirements. The final performance reports are 
due 90 calendar days after the expiration or termination of the award.
    (c) If inappropriate, a final technical or performance report shall 
not be required after completion of the project.
    (d) When required, performance reports shall generally contain, for 
each award, brief information on each of the following.
    (1) A comparison of actual accomplishments with the goals and 
objectives established for the period, the findings of the investigator, 
or both. Whenever appropriate and the output of programs or projects can 
be readily quantified, such quantitative data should be related to cost 
data for computation of unit costs.
    (2) Reasons why established goals were not met, if appropriate.
    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (e) Recipients shall not be required to submit more than the 
original and two copies of performance reports.
    (f) Recipients shall immediately notify EPA of developments that 
have a significant impact on the award-supported activities. Also, 
notification shall be given in the case of problems, delays, or adverse 
conditions which materially impair the ability to meet the objectives of 
the award. This notification shall include a statement of the action 
taken or contemplated, and any assistance needed to resolve the 
situation.
    (g) EPA may make site visits, as needed.
    (h) EPA shall comply with clearance requirements of 5 CFR part 1320 
when requesting performance data from recipients.



Sec. 30.52  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report. (i) EPA shall 
require recipients to use the SF-269 or SF-269A to report the status of 
funds for all nonconstruction projects or programs. However, EPA has the 
option of not requiring the SF-269 or SF-269A when the SF-270, Request 
for Advance or Reimbursement, or SF-272, Report of Federal Cash 
Transactions, is determined to provide adequate information to meet its 
needs, except that a final SF-269 or SF-269A shall be required at the 
completion of the project when the SF-270 is used only for advances.
    (ii) EPA shall prescribe whether the report shall be on a cash or 
accrual basis. If EPA requires accrual information and the recipient's 
accounting records are not normally kept on the accrual basis, the 
recipient shall not be required to convert its accounting system, but 
shall develop such accrual information through best estimates based on 
an analysis of the documentation on hand.
    (iii) EPA shall determine the frequency of the Financial Status 
Report for each project or program, considering the size and complexity 
of the particular project or program. However, the report shall not be 
required more frequently than quarterly or less frequently than 
annually. A final report shall be required at the completion of the 
agreement.
    (iv) EPA shall require recipients to submit the SF-269 or SF-269A 
(an original and no more than two copies) no later than 30 days after 
the end of each specified reporting period for quarterly and semi-annual 
reports, and 90 calendar days for annual and final reports. Extensions 
of reporting due dates may be approved by EPA upon request of the 
recipient.
    (2) SF-272, Report of Federal Cash Transactions. (i) When funds are 
advanced to recipients EPA shall require each recipient to submit the 
SF-272 and, when necessary, its continuation sheet, SF-272A. EPA shall 
use this report to monitor cash advanced to recipients and to obtain 
disbursement information for each agreement with the recipients.

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    (ii) EPA may require forecasts of Federal cash requirements in the 
``Remarks'' section of the report.
    (iii) When practical and deemed necessary, EPA may require 
recipients to report in the ``Remarks'' section the amount of cash 
advances received in excess of three days. Recipients shall provide 
short narrative explanations of actions taken to reduce the excess 
balances.
    (iv) Recipients shall be required to submit not more than the 
original and two copies of the SF-272 15 calendar days following the end 
of each quarter. EPA may require a monthly report from those recipients 
receiving advances totaling $1 million or more per year.
    (v) EPA may waive the requirement for submission of the SF-272 for 
any one of the following reasons:
    (A) When monthly advances do not exceed $25,000 per recipient, 
provided that such advances are monitored through other forms contained 
in this section;
    (B) If, in EPA's opinion, the recipient's accounting controls are 
adequate to minimize excessive Federal advances; or
    (C) When the electronic payment mechanisms provide adequate data.
    (b) When EPA needs additional information or more frequent reports, 
the following shall be observed.
    (1) When additional information is needed to comply with legislative 
requirements, EPA shall issue instructions to require recipients to 
submit such information under the ``Remarks'' section of the reports.
    (2) When EPA determines that a recipient's accounting system does 
not meet the standards in Sec. 30.21, additional pertinent information 
to further monitor awards may be obtained upon written notice to the 
recipient until such time as the system is brought up to standard. EPA, 
in obtaining this information, shall comply with report clearance 
requirements of 5 CFR part 1320.
    (3) EPA may shade out any line item on any report if not necessary.
    (4) EPA may accept the identical information from the recipients in 
machine readable format or computer printouts or electronic outputs in 
lieu of prescribed formats.
    (5) EPA may provide computer or electronic outputs to recipients 
when such expedites or contributes to the accuracy of reporting.



Sec. 30.53  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. EPA shall not impose any 
other record retention or access requirements upon recipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award shall be retained for a 
period of three years from the date of submission of the final 
expenditure report or, for awards that are renewed quarterly or 
annually, from the date of the submission of the quarterly or annual 
financial report, as authorized by EPA. The only exceptions are the 
following.
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-year period, the records shall be retained until all 
litigation, claims or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with Federal 
funds shall be retained for 3 years after final disposition.
    (3) When records are transferred to or maintained by EPA, the 3-year 
retention requirement is not applicable to the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, etc. as 
specified in paragraph (g) of this section.
    (c) Copies of original records may be substituted for the original 
records if authorized by EPA.
    (d) EPA shall request transfer of certain records to its custody 
from recipients when it determines that the records possess long term 
retention value. However, in order to avoid duplicate recordkeeping, EPA 
may make arrangements for recipients to retain any records that are 
continuously needed for joint use.
    (e) EPA, the Inspector General, Comptroller General of the United 
States, or any of their duly authorized representatives, have the right 
of timely and unrestricted access to any

[[Page 332]]

books, documents, papers, or other records of recipients that are 
pertinent to the awards, in order to make audits, examinations, 
excerpts, transcripts and copies of such documents. This right also 
includes timely and reasonable access to a recipient's personnel for the 
purpose of interview and discussion related to such documents. The 
rights of access in this paragraph are not limited to the required 
retention period, but shall last as long as records are retained.
    (f) Unless required by statute, EPA shall not place restrictions on 
recipients that limit public access to the records of recipients that 
are pertinent to an award, except when it can be demonstrated that such 
records shall be kept confidential and would have been exempted from 
disclosure pursuant to the Freedom of Information Act (5 U.S.C. 552) if 
the records had belonged to EPA.
    (g) Indirect cost rate proposals, cost allocations plans, etc. 
Paragraphs (g)(1) and (g)(2) of this section apply to the following 
types of documents, and their supporting records: indirect cost rate 
computations or proposals, cost allocation plans, and any similar 
accounting computations of the rate at which a particular group of costs 
is chargeable (such as computer usage chargeback rates or composite 
fringe benefit rates).
    (1) If submitted for negotiation. If the recipient submits to EPA or 
the subrecipient submits to the recipient the proposal, plan, or other 
computation to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts on the date of 
such submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to EPA or the subrecipient is not required to submit 
to the recipient the proposal, plan, or other computation for 
negotiation purposes, then the 3-year retention period for the proposal, 
plan, or other computation and its supporting records starts at the end 
of the fiscal year (or other accounting period) covered by the proposal, 
plan, or other computation.



Sec. 30.54  Quality assurance.

    If the project officer determines that the grantee's project 
involves environmentally related measurements or data generation, the 
grantee shall develop and implement quality assurance practices 
consisting of policies, procedures, specifications, standards, and 
documentation sufficient to produce data of quality adequate to meet 
project objectives and to minimize loss of data due to out-of-control 
conditions or malfunctions. The quality system must comply with the 
requirements of ANSI/ASQC E4, ``Specifications and Guidelines for 
Quality Systems for Environmental Data Collection and Environmental 
Technology Programs'', which may be obtained from the National Technical 
Information Service (NTIS), 5885 Port Royal Road, Springfield, VA 22161.

                       Termination and Enforcement



Sec. 30.60  Purpose of termination and enforcement.

    Sections 30.61 and 30.62 set forth uniform suspension, termination 
and enforcement procedures.



Sec. 30.61  Termination.

    (a) Awards may be terminated in whole or in part only if paragraph 
(a)(1), (2) or (3) of this section applies.
    (1) By EPA, if a recipient materially fails to comply with the terms 
and conditions of an award.
    (2) By EPA with the consent of the recipient, in which case the two 
parties shall agree upon the termination conditions, including the 
effective date and, in the case of partial termination, the portion to 
be terminated.
    (3) By the recipient upon sending to EPA written notification 
setting forth the reasons for such termination, the effective date, and, 
in the case of partial termination, the portion to be terminated. 
However, if EPA determines in the case of partial termination that the 
reduced or modified portion of the grant will not accomplish the 
purposes for which the grant was made, it may terminate the grant in its 
entirety under either paragraph (a)(1) or (2) of this secion.

[[Page 333]]

    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec. 30.71(a), including those for property 
management as applicable, shall be considered in the termination of the 
award, and provision shall be made for continuing responsibilities of 
the recipient after termination, as appropriate.



Sec. 30.62  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
EPA may, in addition to imposing any of the special conditions outlined 
in Sec. 30.14, take one or more of the following actions, as appropriate 
in the circumstances.
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by EPA.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, EPA shall 
provide the recipient an opportunity for hearing, appeal, or other 
administrative proceeding to which the recipient is entitled under any 
statute or regulation applicable to the action involved. EPA's Dispute 
Provisions found at 40 CFR part 31, subpart F, Disputes, are applicable 
to assistance awarded under the provisions of this part.
    (c) Effects of suspension and termination. Costs of a recipient 
resulting from obligations incurred by the recipient during a suspension 
or after termination of an award are not allowable unless EPA expressly 
authorizes them in the notice of suspension or termination or 
subsequently. Other recipient costs during suspension or after 
termination which are necessary and not reasonably avoidable are 
allowable if paragraphs (c)(1) and (2) of this section apply.
    (1) The costs result from obligations which were properly incurred 
by the recipient before the effective date of suspension or termination, 
are not in anticipation of it, and in the case of a termination, are 
noncancellable.
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under Executive Orders 12549 and 12689 and EPA's 
implementing regulations (see Sec. 30.13).



Sec. 30.63  Disputes.

    (a) Disagreements should be resolved at the lowest possible level.
    (b) If an agreement cannot be reached, the EPA disputes decision 
official will provide a written final decision. The EPA disputes 
decision official is the individual designated by the award official to 
resolve disputes concerning assistance agreements. If the dispute cannot 
be resolved the procedures outlined at 40 CFR part 31, subpart F, should 
be followed.



                 Subpart D--After-the-Award Requirements



Sec. 30.70  Purpose.

    Sections 30.71 through 30.73 contain closeout procedures and other 
procedures for subsequent disallowances and adjustments.



Sec. 30.71  Closeout procedures.

    (a) Recipients shall submit, within 90 calendar days after the date 
of completion of the award, all financial, performance, and other 
reports as required by the terms and conditions of the award. EPA may 
approve extensions when requested by the recipient.
    (b) Unless EPA authorizes an extension, a recipient shall liquidate 
all obligations incurred under the award not later than 90 calendar days 
after the

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funding period or the date of completion as specified in the terms and 
conditions of the award or in agency implementing instructions.
    (c) EPA shall make prompt payments to a recipient for allowable 
reimbursable costs under the award being closed out.
    (d) The recipient shall promptly refund any balances of unobligated 
cash that EPA has advanced or paid and that is not authorized to be 
retained by the recipient for use in other projects. OMB Circular A-129 
governs unreturned amounts that become delinquent debts.
    (e) When authorized by the terms and conditions of the award, EPA 
shall make a settlement for any upward or downward adjustments to the 
Federal share of costs after closeout reports are received.
    (f) The recipient shall account for any real and personal property 
acquired with Federal funds or received from the Federal Government in 
accordance with Sec. Sec. 30.31 through 30.37.
    (g) In the event a final audit has not been performed prior to the 
closeout of an award, EPA shall retain the right to recover an 
appropriate amount after fully considering the recommendations on 
disallowed costs resulting from the final audit.



Sec. 30.72  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of EPA to disallow costs and recover funds on the 
basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 30.26.
    (4) Property management requirements in Sec. Sec. 30.31 through 
30.37.
    (5) Records retention as required in Sec. 30.53.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
EPA and the recipient, provided the responsibilities of the recipient 
referred to in Sec. 30.73(a), including those for property management as 
applicable, are considered and provisions made for continuing 
responsibilities of the recipient, as appropriate.



Sec. 30.73  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within a reasonable period after the demand for payment, EPA 
may reduce the debt by paragraph (a) (1), (2) or (3) of this section.
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.
    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, EPA shall charge interest 
on an overdue debt in accordance with 4 CFR Chapter II, ``Federal Claims 
Collection Standards.''

                Appendix to Part 30--Contract Provisions

    All contracts awarded by a recipient, including small purchases, 
shall contain the following provisions as applicable:
    1. Equal Employment Opportunity--All contracts shall contain a 
provision requiring compliance with Executive Order 11246, ``Equal 
Employment Opportunity,'' as amended by Executive Order 11375, 
``Amending Executive Order 11246 Relating to Equal Employment 
Opportunity,'' and as supplemented by regulations at 41 CFR part 60, 
``Office of Federal Contract Compliance Programs, Equal Employment 
Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subgrants in excess of $100,000 for 
construction or repair awarded by recipients and subrecipients shall 
include a provision for compliance with the Copeland ``Anti-Kickback'' 
Act (18 U.S.C. 874), as supplemented by Department of Labor regulations 
(29 CFR part 3, ``Contractors and Subcontractors on Public Building or 
Public Work Financed in Whole or in Part by Loans or Grants from the 
United States''). The Act provides that each contractor or subrecipient 
shall be prohibited from inducing, by any means, any person employed in 
the construction, completion, or repair of public work, to give up any 
part of the compensation to which he is

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otherwise entitled. The recipient shall report all suspected or reported 
violations to EPA.
    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When 
required by Federal program legislation, all construction contracts 
awarded by the recipients and subrecipients of more than $2000 shall 
include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 
276a to a-7) and as supplemented by Department of Labor regulations (29 
CFR part 5, ``Labor Standards Provisions Applicable to Contracts 
Governing Federally Financed and Assisted Construction''). Under this 
Act, contractors shall be required to pay wages to laborers and 
mechanics at a rate not less than the minimum wages specified in a wage 
determination made by the Secretary of Labor. In addition, contractors 
shall be required to pay wages not less than once a week. The recipient 
shall place a copy of the current prevailing wage determination issued 
by the Department of Labor in each solicitation and the award of a 
contract shall be conditioned upon the acceptance of the wage 
determination. The recipient shall report all suspected or reported 
violations to EPA.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in excess of 
$100,000 for construction contracts and in excess of $2500 for other 
contracts that involve the employment of mechanics or laborers shall 
include a provision for compliance with sections 102 and 107 of the 
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as 
supplemented by Department of Labor regulations (29 CFR part 5). Under 
section 102 of the Act, each contractor shall be required to compute the 
wages of every mechanic and laborer on the basis of a standard work week 
of 40 hours. Work in excess of the standard work week is permissible 
provided that the worker is compensated at a rate of not less than 1/2 
times the basic rate of pay for all hours worked in excess of 40 hours 
in the work week. Section 107 of the Act is applicable to construction 
work and provides that no laborer or mechanic shall be required to work 
in surroundings or under working conditions which are unsanitary, 
hazardous or dangerous. These requirements do not apply to the purchases 
of supplies or materials or articles ordinarily available on the open 
market, or contracts for transportation or transmission of intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work shall provide for the rights of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to Inventions Made by 
Nonprofit Organizations and Small Business Firms Under Government 
Grants, Contracts and Cooperative Agreements,'' and any implementing 
regulations issued by EPA.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subgrants of amounts in excess of $100,000 shall contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the 
Regional Office of the Environmental Protection Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of more than $100,000 shall file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any person or 
organization for influencing or attempting to influence an officer or 
employee of any agency, a member of Congress, officer or employee of 
Congress, or an employee of a member of Congress in connection with 
obtaining any Federal contract, grant or any other award covered by 31 
U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal 
funds that takes place in connection with obtaining any Federal award. 
Such disclosures are forwarded from tier to tier up to the recipient.
    8. Debarment and Suspension (Executive Orders 12549 and 12689)--No 
contract shall be made to parties listed on the General Services 
Administration's List of Parties Excluded from Federal Procurement or 
Nonprocurement Programs in accordance with Executive Orders 12549 and 
12689, ``Debarment and Suspension.'' This list contains the names of 
parties debarred, suspended, or otherwise excluded by agencies, and 
contractors declared ineligible under statutory or regulatory authority 
other than Executive Order 12549. Contractors with awards that exceed 
the small purchase threshold shall provide the required certification 
regarding its exclusion status and that of its principal employees.



PART 31--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                           Subpart A--General

Sec.
31.1  Purpose and scope of this part.
31.2  Scope of subpart.
31.3  Definitions.
31.4  Applicability.
31.5  Effect on other issuances.

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31.6  Additions and exceptions.

                    Subpart B--Pre-Award Requirements

31.10  Forms for applying for grants.
31.11  State plans.
31.12  Special grant or subgrant conditions for ``high-risk'' grantees.
31.13  Principal environmental statutory provisions applicable to EPA 
          assistance awards.

                   Subpart C--Post-Award Requirements

                        Financial Administration

31.20  Standards for financial management systems.
31.21  Payment.
31.22  Allowable costs.
31.23  Period of availability of funds.
31.24  Matching or cost sharing.
31.25  Program income.
31.26  Non-Federal audit.

                    Changes, Property, and Subawards

31.30  Changes.
31.31  Real property.
31.32  Equipment.
31.33  Supplies.
31.34  Copyrights.
31.35  Subawards to debarred and suspended parties.
31.36  Procurement.
31.37  Subgrants.

              Reports, Records, Retention, and Enforcement

31.40  Monitoring and reporting program performance.
31.41  Financial reporting.
31.42  Retention and access requirements for records.
31.43  Enforcement.
31.44  Termination for convenience.
31.45  Quality assurance.

                 Subpart D--After-the-Grant Requirements

31.50  Closeout.
31.51  Later disallowances and adjustments.
31.52  Collection of amounts due.

                   Subpart E--Entitlements [Reserved]

                           Subpart F--Disputes

31.70  Disputes

Appendix A to Part 31--Audit Requirements for State and Local Government 
          Recipients

    Authority: 33 U.S.C. 1251 et seq.; 42 U.S.C. 7401 et seq.; 42 U.S.C. 
6901 et seq.; 42 U.S.C. 300f et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C. 
2601 et seq.; 42 U.S.C. 9601 et seq.; 20 U.S.C. 4011 et seq.; 33 U.S.C. 
1401 et seq.

    Source: 53 FR 8075 and 8087, Mar. 11, 1988, unless otherwise noted.



                           Subpart A--General



Sec. 31.1  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 31.2  Scope of subpart.

    This subpart contains general rules pertaining to this part and 
procedures for control of exceptions from this part.



Sec. 31.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management,

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kinds and frequency of reports, and retention of records. These are 
distinguished from programmatic requirements, which concern matters that 
can be treated only on a program-by-program or grant-by-grant basis, 
such as kinds of activities that can be supported by grants under a 
particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for grant and 
subgrant in this section and except where qualified by Federal) a 
procurement contract under a grant or subgrant, and means a procurement 
subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the U.S. Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash

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basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of grant in this part.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than equipment 
as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. Termination does not include:
    (1) Withdrawal of funds awarded on the basis of the grantee's 
underestimate of the unobligated balance in a prior period;
    (2) Withdrawal of the unobligated balance as of the expiration of a 
grant;
    (3) Refusal to extend a grant or award additional funds, to make a 
competing or noncompeting continuation, renewal, extension, or 
supplemental award; or
    (4) Voiding of a grant upon determination that the award was 
obtained fraudulently, or was otherwise illegal or invalid from 
inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a

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federally assisted project or program and which are contributed by non-
Federal third parties without charge to the grantee, or a cost-type 
contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 31.4  Applicability.

    (a) General. Subparts A-D of this part apply to all grants and 
subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec. 31.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under Title V, Subtitle D, Chapter 2, 
Section 583--the Secretary's discretionary grant program) and Titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and Part C of Title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (Title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (Title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (Title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a),

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and 242 through 244 (portions of the Impact Aid program), except for 20 
U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for Handicapped 
Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 31.4(a) (3) through (8) are subject to subpart E.




Sec. 31.5  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 31.6.




Sec. 31.6  Additions and exceptions

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.
    (1) In the Environmental Protection Agency, the Director, Grants 
Administration Division, is authorized to grant the exceptions.
    (d) The EPA Director is also authorized to approve exceptions, on a 
class or an individual case basis, to EPA program--specific assistance 
regulations other than those which implement statutory and executive 
order requirements.

[53 FR 8068 and 8087, Mar. 11, 1988, and amended at 53 FR 8075, Mar. 11, 
1988]



                    Subpart B--Pre-Award Requirements



Sec. 31.10  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec. 31.11  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to

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regulations implementing the Executive Order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.




Sec. 31.12  Special grant or subgrant conditions for ``high-risk'' grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or
    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grantee or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.




Sec. 31.13  Principal environmental statutory provisions applicable to EPA assistance awards.

    Grantees shall comply with all applicable Federal laws including:
    (a) Section 306 of the Clean Air Act, (42 U.S.C. 7606).
    (b) Section 508 of the Federal Water Pollution Control Act, as 
amended, (33 U.S.C. 1368).
    (c) Section 1424(e) of the Safe Drinking Water Act, (42 U.S.C. 300h-
3(e)).

[53 FR 8075, Mar. 11, 1988]



                   Subpart C--Post-Award Requirements

                        Financial Administration



Sec. 31.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--

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    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.




Sec. 31.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this

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section are not met. Grantees and subgrantees may also be paid by 
reimbursement for any construction grant. Except as otherwise specified 
in regulation, Federal agencies shall not use the percentage of 
completion method to pay construction grants. The grantee or subgrantee 
may use that method to pay its construction contractor, and if it does, 
the awarding agency's payments to the grantee or subgrantee will be 
based on the grantee's or subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec. 31.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.




Sec. 31.22  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and

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    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

                                                                        
------------------------------------------------------------------------
           For the costs of a--                Use the principles in--  
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.          
Private nonprofit organization other than   OBM Circular A-122.         
 an (1) institution of higher education,                                
 (2) hospital, or (3) organization named                                
 in OMB Circular A-122 as not subject to                                
 that circular.                                                         
Educational institutions..................  OMB Circular A-21.          
For-profit organization other than a        48 CFR part 31, Contract    
 hospital and an organization named in OBM   Cost Principles and        
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that  
                                             comply with cost principles
                                             acceptable to the Federal  
                                             agency.                    
------------------------------------------------------------------------



Sec. 31.23  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.




Sec. 31.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by other cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 31.25, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec. 31.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other

[[Page 345]]

provisions of the grant agreement expressly permit this kind of income 
to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be

[[Page 346]]

counted as cost sharing or matching. In the case of a subgrant, the 
terms of the grant agreement may require that the approval be obtained 
from the Federal agency as well as the grantee. In all cases, the 
approval may be given only if a purchase of the equipment or rental of 
the land would be approved as an allowable direct cost. If any part of 
the donated property was acquired with Federal funds, only the non-
federal share of the property may be counted as cost-sharing or 
matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 31.22, in the same way as depreciation or 
use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.



Sec. 31.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 31.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 31.31 
and 31.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the

[[Page 347]]

grant agreement specify another alternative (or a combination of the 
alternatives). In specifying alternatives, the Federal agency may 
distinguish between income earned by the grantee and income earned by 
subgrantees and between the sources, kinds, or amounts of income. When 
Federal agencies authorize the alternatives in paragraphs (g) (2) and 
(3) of this section, program income in excess of any limits stipulated 
shall also be deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.




Sec. 31.26  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act of 1984 (31 
U.S.C. 7501-7) and Federal agency implementing regulations. The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial and compliance 
audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act, that receive Federal 
financial assistance and provide $25,000 or more of it in a fiscal year 
to a subgrantee shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Requirements for Grants and Other Agreements with 
Institutions of Higher Education, Hospitals and Other Nonprofit 
Organizations'' have met the audit requirement. Commercial contractors 
(private for profit and private and governmental organizations) 
providing goods and services to State and local governments are not 
required to have a single audit performed. State and local governments 
should use their own procedures to ensure that the contractor has 
complied with laws and regulations affecting the expenditure of Federal 
funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 31.36 
shall be followed.

                    Changes, Property, and Subawards



Sec. 31.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain

[[Page 348]]

types of post-award changes in budgets and projects shall require the 
prior written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 31.22) contain requirements for prior approval of certain types of 
costs. Except where waived, those requirements apply to all grants and 
subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes. (1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec. 31.36 but does not apply to the procurement of equipment, supplies, 
and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 31.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.




Sec. 31.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a

[[Page 349]]

grant or subgrant will vest upon acquisition in the grantee or 
subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.




Sec. 31.32  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 31.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place

[[Page 350]]

will, as a minimum, meet the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third party 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow 31.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec. 31.33  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.

[[Page 351]]



Sec. 31.34  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec. 31.35  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension.''



Sec. 31.36  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms, conditions, and specifications of their contracts or purchase 
orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) 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 firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees 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 or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such

[[Page 352]]

use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 31.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services,

[[Page 353]]

geographic location may be a selection criteria provided its application 
leaves an appropriate number of qualified firms, given the nature and 
size of the project, to compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (5) Construction grants awarded under Title II of the Clean Water 
Act are subject to the following ``Buy American'' requirements in 
paragraphs (c)(5)(i)-(iii) of this section. Section 215 of the Clean 
Water Act requires that contractors give preference to the use of 
domestic material in the construction of EPA-funded treatment works.
    (i) Contractors must use domestic construction materials in 
preference to nondomestic material if it is priced no more than 6 
percent higher than the bid or offered price of the nondomestic 
material, including all costs of delivery to the construction site and 
any applicable duty, whether or not assessed. The grantee will normally 
base the computations on prices and costs in effect on the date of 
opening bids or proposals.
    (ii) The award official may waive the Buy American provision based 
on factors the award official considers relevant, including:
    (A) Such use is not in the public interest;
    (B) The cost is unreasonable;
    (C) The Agency's available resources are not sufficient to implement 
the provision, subject to the Deputy Administrator's concurrence;
    (D) The articles, materials or supplies of the class or kind to be 
used or the articles, materials or supplies from which they are 
manufactured are not mined, produced or manufactured in the United 
States in sufficient and reasonably available commerical quantities or 
satisfactory quality for the particular project; or
    (E) Application of this provision is contrary to multilateral 
government procurement agreements, subject to the Deputy Administrator's 
concurrence.
    (iii) All bidding documents, subagreements, and, if appropriate, 
requests for proposals must contain the following ``Buy American'' 
provision: In accordance with section 215 of the Clean Water Act (33 
U.S.C. 1251 et seq.) and implementing EPA regulations, the contractor 
agrees that preference will be given to domestic construction materials 
by the contractor, subcontractors, materialmen and suppliers in the 
performance of this subagreement.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If 
small purchase procedures are used,

[[Page 354]]

price or rate quotations shall be obtained from an adequate number of 
qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in 31.36(d)(2)(i) apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;

[[Page 355]]

    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec. 31.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time

[[Page 356]]

the specification is incorporated into a solicitation document. However, 
if the grantee or subgrantee desires to have the review accomplished 
after a solicitation has been developed, the awarding agency may still 
review the specifications, with such review usually limited to the 
technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.

[[Page 357]]

    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR Part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR Part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR Part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).
    (j) Payment to consultants. (1) EPA will limit its participation in 
the salary rate (excluding overhead) paid to individual consultants 
retained by grantees or by a grantee's contractors or subcontractors to 
the maximum daily rate for a GS-18. (Grantees may, however, pay 
consultants more than this amount). This limitation applies to 
consultation services of designated individuals with specialized skills 
who are paid at a daily or hourly rate. This rate does not include 
transportation and subsistence costs for travel performed; grantees will 
pay these in accordance with their normal travel reimbursement 
practices. (Pub. L. 99-591).
    (2) Subagreements with firms for services which are awarded using 
the procurement requirements in this part are not affected by this 
limitation.
    (k) Use of the same architect or engineer during construction. (1) 
If the grantee is satisfied with the qualifications and performance of 
the architect or engineer who provided any or all of the facilities 
planning or design services for a waste-water treatment works

[[Page 358]]

project and wishes to retain that firm or individual during construction 
of the project, it may do so without further public notice and 
evaluation of qualifications, provided:
    (i) The grantee received a facilities planning (Step 1) or design 
grant (Step 2), and selected the architect or engineer in accordance 
with EPA's procurement regulations in effect when EPA awarded the grant; 
or
    (ii) The award official approves noncompetitive procurement under 
Sec. 31.36(d)(4) for reasons other than simply using the same individual 
or firm that provided facilities planning or design services for the 
project; or
    (iii) The grantee attests that:
    (A) The initial request for proposals clearly stated the possibility 
that the firm or individual selected could be awarded a subagreement for 
services during construction; and
    (B) The firm or individual was selected for facilities planning or 
design services in accordance with procedures specified in this section.
    (C) No employee, officer or agent of the grantee, any member of 
their immediate families, or their partners have financial or other 
interest in the firm selected for award; and
    (D) None of the grantee's officers, employees or agents solicited or 
accepted gratuities, favors or anything of monetary value from 
contractors or other parties to subagreements.
    (2) However, if the grantee uses the procedures in paragraph (k)(1) 
of this section to retain an architect or engineer, any Step 3 
subagreements between the architect or engineer and the grantee must 
meet all of the other procurement provisions in Sec. 31.36.

[53 FR 8068 and 8087, Mar. 11, 1988, and amended at 53 FR 8075, Mar. 11, 
1988; 60 FR 19639, 19644, Apr. 19, 1995]




Sec. 31.37  Subgrants.

    (a) States. States shall follow state law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 31.42 is placed 
in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 31.10;
    (2) Section 31.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 31.21; and
    (4) Section 31.50.

              Reports, Records, Retention, and Enforcement



Sec. 31.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must

[[Page 359]]

cover each program, function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec. 31.41  Financial Reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However,

[[Page 360]]

grantees shall not impose more burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extent required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec. 31.41(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accrual basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.

[[Page 361]]

    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 31.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs. (1) Grants that support construction activities paid by 
reimbursement method.
    (i) Requests for reimbursement under construction grants will be 
submitted on Standard Form 271, Outlay Report and Request for 
Reimbursement for Construction Programs. Federal agencies may, however, 
prescribe the Request for Advance or Reimbursement form, specified in 
Sec. 31.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 31.41(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and due 
date shall be governed by Sec. 31.41(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec. 31.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 31.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 31.41(b)(2).




Sec. 31.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 31.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on

[[Page 362]]

the day the grantee or subgrantee submits to the awarding agency its 
single or last expenditure report for that period. However, if grant 
support is continued or renewed quarterly, the retention period for each 
year's records starts on the day the grantee submits its expenditure 
report for the last quarter of the Federal fiscal year. In all other 
cases, the retention period starts on the day the grantee submits its 
final expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records Unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.




Sec. 31.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (i) EPA can also wholly or partly annul the current award for the 
grantee's or subgrantee's program,
    (ii) [Reserved]
    (4) Withhold further awards for the program, or

[[Page 363]]

    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to Debarment and Suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 31.35).

[53 FR 8068 and 8087, Mar. 11, 1988, and amended at 53 FR 8076, Mar. 11, 
1988]



Sec. 31.44  Termination for convenience.

    Except as provided in Sec. 31.43 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec. 31.43 
or paragraph (a) of this section.




Sec. 31.45  Quality assurance.

    If the grantee's project involves environmentally related 
measurements or data generation, the grantee shall develop and implement 
quality assurance practices consisting of policies, procedures, 
specifications, standards, and documentation sufficient to produce data 
of quality adequate to meet project objectives and to minimize loss of 
data due to out-of-control conditions or malfunctions.

[53 FR 8076, Mar. 11, 1988]



                 Subpart D--After-The-Grant Requirements



Sec. 31.50  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable.)
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report:
In accordance with Sec. 31.32(f), a grantee must submit an inventory of 
all federally owned property (as distinct from property acquired with 
grant funds) for

[[Page 364]]

which it is accountable and request disposition instructions from the 
Federal agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.




Sec. 31.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 31.42;
    (d) Property management requirements in Sec. Sec. 31.31 and 31.32; 
and
    (e) Audit requirements in Sec. 31.26.




Sec. 31.52  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:
    (1) Making an adminstrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR Ch. II). The date 
from which interest is computed is not extended by litigation or the 
filing of any form of appeal.



                    Subpart E--Entitlement [Reserved]



                           Subpart F--Disputes



Sec. 31.70  Disputes.

    (a) Disagreements should be resolved at the lowest level possible.
    (b) If an agreement cannot be reached, the EPA disputes decision 
official will provide a written final decision. The EPA disputes 
decision official is the individual designated by the award official to 
resolve disputes concerning assistance agreements.
    (c) The disputes decision official's decision will constitute final 
agency action unless a request for review is filed by registered mail, 
return receipt requested, within 30 calendar days of the date of the 
decision.
    (1) For final decisions issued by an EPA disputes decision official 
at Headquarters, the request for review shall be filed with the 
Assistant Administrator responsible for the assistance program.
    (2) For final decisions issued by a Regional disputes decision 
official, the request for review shall be filed with the Regional 
Administrator. If the Regional Administrator issued the final decision, 
the request for reconsideration shall be filed with the Regional 
Administrator.
    (d) The request shall include:
    (1) A copy of the EPA disputes decision official's final decision;
    (2) A statement of the amount in dispute;
    (3) A description of the issues involved; and
    (4) A concise statement of the objections to the final decision.
    (e) The disputant(s) may be represented by counsel and may submit 
documentary evidence and briefs for inclusion in a written record.
    (f) Disputants are entitled to an informal conference with EPA 
officials.
    (g) Disputants are entitled to a written decision from the 
appropriate Regional or Assistant Administrator.

[[Page 365]]

    (h) A decision by the Assistant Administrator to confirm the final 
decision of a Headquarters disputes decision official will constitute 
the final Agency action.
    (i) A decision by the Regional Administrator to confirm the Regional 
disputes decision official's decision will constitute the final Agency 
action. However, a petition for discretionary review by the Assistant 
Administrator responsible for the assistance program may be filed within 
30 calendar days of the Regional Administrator's decision. The petition 
shall be sent to the Assistant Administrator by registered mail, return 
receipt requested, and shall include:
    (1) A copy of the Regional Administrator's decision; and
    (2) A concise statement of the objections to the decision.
    (j) If the Assistant Administrator decides not to review the 
Regional Administrator's decision, the Assistant Administrator will 
advise the disputant(s) in writing that the Regional Administrator's 
decision remains the final Agency action.
    (k) If the Assistant Administrator decides to review the Regional 
Administrator's decision, the review will generally be limited to the 
written record on which the Regional Administrator's decision was based. 
The Assistant Administrator may allow the disputant(s) to submit briefs 
in support of the petition for review and may provide an opportunity for 
an informal conference in order to clarify technical or legal issues. 
After reviewing the Regional Administrator's decision, the Assistant 
Administrator will issue a written decision which will then become the 
final Agency action.
    (l) Reviews may not be requested of:
    (1) Decisions on requests for exceptions under Sec. 31.6;
    (2) Bid protest decisions under Sec. 31.36(b)(12);
    (3) National Environmental Policy Act decisions under part 6;
    (4) Advanced wastewater treatment decisions of the Administrator; 
and
    (5) Policy decisions of the EPA Audit Resolution Board.

[53 FR 8076, Mar. 11, 1988]

Appendix A to Part 31--Audit Requirements for State and Local Government 
                               Recipients

                    EXECUTIVE OFFICE OF THE PRESIDENT

                     Office of Management and Budget

                           Circular No. A-128

April 12, 1985
To the Heads of Executive Departments and Establishments.
Subject: Audits of State and Local Governments.
    1. Purpose. This Circular is issued pursuant to the Single Audit Act 
of 1984, Public Law 98-502. It establishes audit requirements for State 
and local governments that receive Federal aid, and defines Federal 
responsibilities for implementing and monitoring those requirements.
    2. Supersession. The Circular supersedes Attachment P, ``Audit 
Requirements,'' of Circular A-102, ``Uniform requirements for grants to 
State and local governments.''
    3. Background. The Single Audit Act builds upon earlier efforts to 
improve audits of Federal aid programs. The Act requires State or local 
governments that receive $100,000 or more a year in Federal funds to 
have an audit made for that year. Section 7505 of the Act requires the 
Director of the Office of Management and Budget to prescribe policies, 
procedures and guidelines to implement the Act. It specifies that the 
Director shall designate ``cognizant'' Federal agencies, determine 
criteria for making appropriate charges to Federal programs for the cost 
of audits, and provide procedures to assure that small firms or firms 
owned and controlled by disadvantaged individuals have the opportunity 
to participate in contracts for single audits.
    4. Policy. The Single Audit Act requires the following:
    a. State or local governments that receive $100,000 or more a year 
in Federal financial assistance shall have an audit made in accordance 
with this Circular.
    b. State or local governments that receive between $25,000 and 
$100,000 a year shall have an audit made in accordance with this 
Circular, or in accordance with Federal laws and regulations governing 
the programs they participate in.
    c. State or local governments that receive less than $25,000 a year 
shall be exempt from compliance with the Act and other Federal audit 
requirements. These State and local governments shall be governed by 
audit requirements prescribed by State or local law or regulation.
    d. Nothing in this paragraph exempts State or local governments from 
maintaining records of Federal financial assistance or

[[Page 366]]

from providing access to such records to Federal agencies, as provided 
for in Federal law or in Circular A-102, ``Uniform requirements for 
grants to State or local governments.''
    5. Definitions. For the purposes of this Circular the following 
definitions from the Single Audit Act apply:
    a. Cognizant agency means the Federal agency assigned by the Office 
of Management and Budget to carry out the responsibilities described in 
paragraph 11 of this Circular.
    b. Federal financial assistance means assistance provided by a 
Federal agency in the form of grants, contracts, cooperative agreements, 
loans, loan guarantees, property, interest subsidies, insurance, or 
direct appropriations, but does not include direct Federal cash 
assistance to individuals. It includes awards received directly from 
Federal agencies, or indirectly through other units of State and local 
governments.
    c. Federal agency has the same meaning as the term agency in section 
551(1) of Title 5, United States Code.
    d. Generally accepted accounting principles has the meaning 
specified in the generally accepted government auditing standards.
    e. Generally accepted government auditing standards means the 
Standards for Audit of Government Organizations, Programs, Activities, 
and Functions, developed by the Comptroller General, dated February 27, 
1981.
    f. Independent auditor means:
    (1) A State or local government auditor who meets the independence 
standards specified in generally accepted government auditing standards; 
or
    (2) A public accountant who meets such independence standards.
    g. Internal controls means the plan of organization and methods and 
procedures adopted by management to ensure that:
    (1) Resource use is consistent with laws, regulations, and policies;
    (2) Resources are safeguarded against waste, loss, and misuse; and
    (3) Reliable data are obtained, maintained, and fairly disclosed in 
reports.
    h. Indian tribe means any Indian tribe, band, nations, or other 
organized group or community, including any Alaskan Native village or 
regional or village corporations (as defined in, or established under, 
the Alaskan Native Claims Settlement Act) that is recognized by the 
United States as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.
    i. Local government means any unit of local government within a 
State, including a county, a borough, municipality, city, town, 
township, parish, local public authority, special district, school 
district, intrastate district, council of governments, and any other 
instrumentality of local government.
    j. Major Federal Assistance Program, as defined by Pub. L. 98-502, 
is described in the Attachment to this Circular.
    k. Public accountants means those individuals who meet the 
qualification standards included in generally accepted government 
auditing standards for personnel performing government audits.
    l. State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the Trust Territory of the Pacific Islands, any instrumentality thereof, 
and any multi-State, regional, or interstate entity that has 
governmental functions and any Indian tribe.
    m. Subrecipient means any person or government department, agency, 
or establishment that receives Federal financial assistance to carry out 
a program through a State or local government, but does not include an 
individual that is a beneficiary of such a program. A subrecipient may 
also be a direct recipient of Federal financial assistance.
    6. Scope of audit. The Single Audit Act provides that:
    a. The audit shall be made by an independent auditor in accordance 
with generally accepted government auditing standards covering financial 
and compliance audits.
    b. The audit shall cover the entire operations of a State or local 
government or, at the option of that government, it may cover 
departments, agencies or establishments that received, expended, or 
otherwise administered Federal financial assistance during the year. 
However, if a State or local government receives $25,000 or more in 
General Revenue Sharing Funds in a fiscal year, it shall have an audit 
of its entire operations. A series of audits of individual departments, 
agencies, and establishments for the same fiscal year may be considered 
a single audit.
    c. Public hospitals and public colleges and universities may be 
excluded from State and local audits and the requirements of this 
Circular. However, if such entities are excluded, audits of these 
entities shall be made in accordance with statutory requirements and the 
provisions of Circular A-110. ``Uniform requirements for grants to 
universities, hospitals, and other nonprofit organizations.''
    d. The auditor shall determine whether:
    (1) The financial statements of the government, department, agency 
or establishment present fairly its financial position and the results 
of its financial operations in accordance with generally accepted 
accounting principles:
    (2) The organization has internal accounting and other control 
systems to provide reasonable assurance that it is managing Federal 
financial assistance programs in compliance with applicable laws and 
regulations; and

[[Page 367]]

    (3) The organization has complied with laws and regulations that may 
have material effect on its financial statements and on each major 
Federal assistance program.
    7. Frequency of audit. Audits shall be made annually unless the 
State or local government has, by January 1, 1987, a constitutional or 
statutory requirement for less frequent audits. For those governments, 
the cognizant agency shall permit biennial audits, covering both years, 
if the government so requests. It shall also honor requests for biennial 
audits by governments that have an administrative policy calling for 
audits less frequent than annual, but only for fiscal years beginning 
before January 1, 1987.
    8. Internal control and compliance reviews. The Single Audit Act 
requires that the independent auditor determine and report on whether 
the organization has internal control systems to provide reasonable 
assurance that it is managing Federal assistance programs in compliance 
with applicable laws and regulations.
    a. Internal control review. In order to provide this assurance the 
auditor must make a study and evaluation of internal control systems 
used in administering Federal assistance programs. The study and 
evaluation must be made whether or not the auditor intends to place 
reliance on such systems. As part of this review, the auditor shall:
    (1) Test whether these internal control systems are functioning in 
accordance with prescribed procedures.
    (2) Examine the recipient's system for monitoring subrecipients and 
obtaining and acting on subrecipient audit reports.
    b. Compliance review. The law also requires the auditor to determine 
whether the organization has complied with laws and regulations that may 
have a material effect on each major Federal assistance program.
    (1) In order to determine which major programs are to be tested for 
compliance, State and local governments shall identify in their accounts 
all Federal funds received and expended and the programs under which 
they were received. This shall include funds received directly from 
Federal agencies and through other State and local governments.
    (2) The review must include the selection and testing of a 
representative number of charges from each major Federal assistance 
program. The selection and testing of transactions shall be based on the 
auditor's professional judgment considering such factors as the amount 
of expenditures for the program and the individual awards; the newness 
of the program or changes in its conditions; prior experience with the 
program, particularly as revealed in audits and other evaluations (e.g., 
inspections program reviews); the extent to which the program is carried 
out through subrecipients; the extent to which the program contracts for 
goods or services; the level to which the program is already subject to 
program reviews or other forms of independent oversight; the adequacy of 
the controls for ensuring compliance; the expectation of adherence or 
lack of adherence to the applicable laws and regulations; and the 
potential impact of adverse findings.
    (a) In making the test of transactions, the auditor shall determine 
whether.

--The amounts reported as expenditures were for allowable services, and
--The records show that those who received services or benefits were 
eligible to receive them.

    (b) In addition to transaction testing, the auditor shall determine 
whether:
--Matching requirements, levels of effort and earmarking limitations 
were met,
--Federal financial reports and claims for advances and reimbursements 
contain information that is supported by the books and records from 
which the basic financial statements have been prepared, and
--Amounts claimed or used for matching were determined in accordance 
with OMB Circular A-87, ``Cost principles for State and local 
governments,'' and Attachment F of Circular A-102, ``Uniform 
requirements for grants to State and local governments.''

    (c) The principal compliance requirements of the largest Federal aid 
programs may be ascertained by referring to the Compliance Supplement 
for Single Audits of State and Local Governments, issued by OMB and 
available from the Government Printing Office. For those programs not 
covered in the Compliance Supplement, the auditor may ascertain 
compliance requirements by researching the statutes, regulations, and 
agreements governing individual programs.
    (3) Transactions related to other Federal assistance programs that 
are selected in connection with examinations of financial statements and 
evaluations of internal controls shall be tested for compliance with 
Federal laws and regulations that apply to such transactions.
    9. Subrecipients. State or local governments that receive Federal 
financial assistance and provide $25,000 or more of it in a fiscal year 
to a subrecipient shall:
    a. Determine whether State or local subrecipients have met the audit 
requirements of this Circular and whether subrecipients covered by 
Circular A-110. ``Uniform requirements for grants to universities, 
hospitals, and other nonprofit organizations,'' have met that 
requirement;
    b. Determine whether the subrecipient spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subrecipient made in 
accordance with this Circular, Circular A-110,

[[Page 368]]

or through other means (e.g., program reviews) if the subrecipient has 
not yet had such an audit;
    c. Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instances of noncompliance 
with Federal laws and regulations;
    d. Consider whether subrecipient audits necessitate adjustment of 
the recipient's own records; and
    e. Require each subrecipient to permit independent auditors to have 
access to the records and financial statements as necessary to comply 
with this Circular.
    10. Relation to other audit requirements. The Single Audit Act 
provides that an audit made in accordance with this Circular shall be in 
lieu of any financial or financial compliance audit required under 
individual Federal assistance programs. To the extent that a single 
audit provides Federal agencies with information and assurance they need 
to carry out their overall responsibilities, they shall rely upon and 
use such information. However, a Federal agency shall make any 
additional audits which are necessary to carry out its responsibilities 
under Federal law and regulation. Any additional Federal audit effort 
shall be planned and carried out in such a way as to avoid duplication.
    a. The provisions of this Circular do not limit the authority of 
Federal agencies to make, or contract for audits and evaluations of 
Federal financial assistance programs, nor do they limit the authority 
of any Federal agency Inspector General or other Federal audit official.
    b. The provisions of this Circular do not authorize any State or 
local government or subrecipient thereof to constrain Federal agencies, 
in any manner, from carrying out additional audits.
    c. A Federal agency that makes or contracts for audits in additon to 
the audits made by recipients pursuant to this Circular shall, 
consistent with other applicable laws and regulations, arrange for 
funding the cost of such additional audits. Such additional audits 
include economy and efficiency audits, program results audits, and 
program evaluations.
    11. Cognizant agency responsibilities. The Single Audit Act provides 
for congnizant Federal agencies to oversee the implementation of this 
Circular.
    a. The Office of Management and Budget will assign cognizant 
agencies for States and their subdivisions and larger local governments 
and their subdivisions. Other Federal agencies may participate with an 
assigned cognizant agency, in order to fulfill the cognizant 
responsibilities. Smaller governments not assigned a cognizant agency 
will be under the general oversight of the Federal agency that provides 
them the most funds whether directly or indirectly.
    b. A cognizant agency shall have the following responsibilities:
    (1) Ensure that audits are made and reports are received in a timely 
manner and in accordance with the requirements of this Circular.
    (2) Provide technical advice and liaison to State and local 
governments and independent auditors.
    (3) Obtain or make quality control reviews of selected audits made 
by non-Federal audit organizations, and provide the results, when 
appropriate, to other interested organizations.
    (4) Promptly inform other affected Federal agencies and appropriate 
Federal law enforcement officials of any reported illegal acts or 
irregularities. They should also inform State or local law enforcement 
and prosecuting authorities, if not advised by the recipient, of any 
violation of law within their jurisdiction.
    (5) Advise the recipient of audits that have been found not to have 
met the requirements set forth in this Circular. In such instances, the 
recipient will be expected to work with the auditor to take corrective 
action. If corrective action is not taken, the cognizant agency shall 
notify the recipient and Federal awarding agencies of the facts and make 
recommendations for followup action. Major inadequacies or repetitive 
substandard performance of independent auditors shall be referred to 
appropriate professional bodies for disciplinary action.
    (6) Coordinate, to the extent practicable, audits made by or for 
Federal agencies that are in addition to the audits made pursuant to 
this Circular, so that the additional audits build up such audits.
    (7) Oversee the resolution of audit findings that affect the 
programs of more than one agency.
    12. Illegal acts or irregularities. If the auditor becomes aware of 
illegal acts or other irregularities, prompt notice shall be given to 
recipient management officials above the level of involvement. (See also 
program 13(a)(3) below for the auditor's reporting responsibilities.) 
The recipient, in turn, shall promptly notify the cognizant agency of 
the illegal acts or irregularities and of proposed and actual actions, 
if any. Illegal acts and irregularities include such matters as 
conflicts of interest, falsification of records or reports, and 
misappropriations of funds or other assets.
    13. Audit Reports. Audit reports must be prepared at the completion 
of the audit. Reports serve many needs of State and local governments as 
well as meeting the requirements of the Single Audit Act.
    a. The audit report shall state that the audit was made in 
accordance with the provisions of this Circular. The report shall be 
made up of at least:

[[Page 369]]

    (1) The auditor's report on financial statements and on a schedule 
of Federal assistance; the financial statements; and a schedule of 
Federal assistance, showing the total expenditures for each Federal 
assitance program as identified in the Catalog of Federal Domestic 
Assistance. Federal programs or grants that have not been assigned a 
catalog number shall be identified under the caption ``other Federal 
assistance.''
    (2) The author's report on the study and evaluation of internal 
control systems must identify the organization's significant internal 
accounting controls, and those controls designed to provide reasonable 
assurance that Federal programs are being managed in compliance with 
laws and regulations. It must also identify the controls that were 
evaluated, the controls that were not evaluated, and the material 
weaknesses identified as a result of the evaluation.
    (3) The auditor's report on compliance containing:

--A statement of positive assurance with respect to those items tested 
for compliance, including compliance with law and regulations pertaining 
to financial reports and claims for advances and reimbursements;
--Negative assurance on those items not tested;
--A summary of all instances of noncompliance; and
--An identification of total amounts questioned, if any, for each 
Federal assistance award, as a result of noncompliance.

    b. The three parts of the audit report may be bound into a single 
report, or presented at the same time as separate documents.
    c. All fraud abuse, or illegal acts or indications of such acts, 
including all questioned costs found as the result of these acts that 
auditors become aware of, should normally be covered in a separate 
written report submitted in accordance with paragraph 13f.
    d. In addition to the audit report, the recipient shall provide 
comments on the findings and recommendations in the report, including a 
plan for corrective action taken or planned and comments on the status 
of corrective action taken on prior findings. If corrective action is 
not necessary, a statement describing the reason it is not should 
accompany the audit report.
    e. The reports shall be made available by the State or local 
government for public inspection within 30 days after the completion of 
the audit.
    f. In accordance with generally accepted government audit standards, 
reports shall be submitted by the auditor to the organization audited 
and to those requiring or arranging for the audit. In addition, the 
recipient shall submit copies of the reports to each Federal department 
or agency that provided Federal assistance funds to the recipient. 
Subrecipients shall submit copies to recipients that provided them 
Federal assistance funds. The reports shall be sent within 30 days after 
the completion of the audit, but no later than one year after the end of 
the audit period unless a longer period is agreed to with the cognizant 
agency.
    g. Recipients of more than $100,000 in Federal funds shall submit 
one copy of the audit report within 30 days after issuance to a central 
clearinghouse to be designated by the Office of Management and Budget. 
The clearinghouse will keep completed audits on file and follow up with 
State and local governments that have not submitted required audit 
reports.
    h. Recipients shall keep audit reports on file for three years from 
their issuance.
    14. Audit Resolution. As provided in paragraph 11, the cognizant 
agency shall be responsible for monitoring the resolution of audit 
findings that affect the programs of more than one Federal agency. 
Resolution of findings that relate to the programs of a single Federal 
agency will be the responsibility of the recipient and that agency. 
Alternate arrangements may be made on a case-by-case basis by agreement 
among the agencies concerned.
    Resolution shall be made within six months after receipt of the 
report by the Federal departments and agencies. Corrective action should 
proceed as rapidly as possible.
    15. Audit workpapers and reports. Workpapers and reports shall be 
retained for a minimum of three years from the date of the audit report, 
unless the auditor is notified in writing by the cognizant agency to 
extend the retention period. Audit workpapers shall be made available 
upon request to the cognizant agency or its designee or the General 
Accounting Office, at the completion of the audit.
    16. Audit Costs. The cost of audits made in accordance with the 
provisions of this Circular are allowable charges to Federal assistance 
programs.
    a. The charges may be considered a direct cost or an allocated 
indirect cost, determined in accordance with the provision of Circular 
A-87, ``Cost principles for State and local governments.''
    b. Generally, the percentage of costs charged to Federal assistance 
programs for a single audit shall not exceed the percentage that Federal 
funds expended represent of total funds expended by the recipient during 
the fiscal year. The percentage may be exceeded, however, if appropriate 
documentation demonstrates higher actual cost.
    17. Sanctions. The Single Audit Act provides that no cost may be 
charged to Federal assistance programs for audits required by the Act 
that are not made in accordance with this Circular. In cases of 
continued inability or unwillingness to have a proper

[[Page 370]]

audit, Federal agencies must consider other appropriate sanctions 
including:

--Withholding a percentage of assistance payments until the audit its 
completed satisfactorily,
--Withholding or disallowing overhead costs, and
--Suspending the Federal assistance agreement until the audit is made.

    18. Auditor Selection. In arranging for audit services State and 
local governments shall follow the procurement standards prescribed by 
Attachment O of Circular A-102, ``Uniform requirements for grants to 
State and local governments.'' The standards provide that while 
recipients are encouraged to enter into intergovernmental agreements for 
audit and other services, analysis should be made to determine whether 
it would be more economical to purchase the services from private firms. 
In instances where use of such intergovernmental agreements are required 
by State statutes (e.g., audit services) these statutes will take 
precedence.
    19. Small and Minority Audit Firms. Small audit firms and audit 
firms owned and controlled by socially and economically disadvantaged 
individuals shall have the maximum practicable opportunity to 
participate in contracts awarded to fulfill the requirements of this 
Circular. Recipients of Federal assistance shall take the following 
steps to further this goal:
    a. Assure that small audit firms and audit firms owned and 
controlled by socially and economically disadvantaged individuals are 
used to the fullest extent practicable.
    b. Make information on forthcoming opportunities available and 
arrange timeframes for the audit so as to encourage and facilitate 
participation by small audit firms and audit firms owned and controlled 
by socially and economically disadvantaged individuals.
    c. Consider in the contract process whether firms competing for 
larger audits intend to subcontract with small audit firms and audit 
firms owned and controlled by socially and economically disadvantaged 
individuals.
    d. Encourage contracting with small audit firms or audit firms owned 
and controlled by socially and economically disadvantaged individuals 
which have traditionally audited government programs and, in such cases 
where this is not possible, assure that these firms are given 
consideration for audit subcontracting opportunities.
    e. Encourage contracting with consortiums of small audit firms as 
described in paragraph (a) above when a contract is too large for an 
individual small audit firm or audit firm owned and controlled by 
socially and economically disadvantaged individuals.
    f. Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration in the solicitation 
and utilization of small audit firms or audit firms owned and controlled 
by socially and economically disadvantaged individuals.
    20. Reporting. Each Federal agency will report to the Director of 
OMB on or before March 1, 1987, and annually thereafter on the 
effectiveness of State and local governments in carrying out the 
provisions of this Circular. The report must identify each State or 
local government or Indian tribe that, in the opinion of the agency, is 
failing to comply with the Circular.
    21. Regulations. Each Federal agency shall include the provisions of 
this Circular in its regulations implementing the Single Audit Act.
    22. Effective date. This Circular is effective upon publication and 
shall apply to fiscal years of State and local governments that begin 
after December 31, 1984. Earlier implementation is encouraged. However, 
until it is implemented, the audit provisions of Attachment P to 
Circular A-102 shall continue to be observed.
    23. Inquiries, All questions or inquiries should be addressed to 
Financial Management Division, Office of Management and Budget, 
telephone number 202/395-3993.
    24. Sunset review date. This Circular shall have an independent 
policy review to ascertain its effectiveness three years from the date 
of issuance.
                                                      David A. Stockman,
                                                               Director.

                       Attachment--Circular A-128

        Definition of Major Program as Provided in Pub. L. 96-502

    Major Federal Assistance Program, for State and local governments 
having Federal assistance expenditures between $100,000 and 
$100,000,000, means any program for which Federal expenditures during 
the applicable year exceed the larger of $308,000, or 3 percent of such 
total expenditures.
    Where total expenditures of Federal assistance exceed $100,000,000, 
the following criteria apply:

------------------------------------------------------------------------
 Total expenditures of Federal financial assistance      Major Federal  
                  for all programs                    assistance program
-----------------------------------------------------  means any program
            More than                But less than       that exceeds   
------------------------------------------------------------------------
$100 million....................  $1 billion........  $3 million.       
$1 billion......................  $2 billion........  $4 million.       
$2 billion......................  $3 billion........  $7 million.       
$3 billion......................  $4 billion........  $10 million.      
$4 billion......................  $5 billion........  $13 million.      
$5 billion......................  $6 billion........  $16 million.      
$6 billion......................  $7 billion........  $19 million.      
Over $7 billion.................  ..................  $20 million.      
------------------------------------------------------------------------

[51 FR 6353, Feb. 21, 1986. Redesignated at 53 FR 8076, Mar. 11, 1988]

[[Page 371]]





  PART 32--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS); CLEAN AIR ACT AND CLEAN WATER ACT INELIGIBILITY OF FACILITIES IN PERFORMANCE OF FEDERAL CONTRACTS, GRANTS AND LOANS--Table of Contents





                           Subpart A--General

Sec.
32.100  Purpose.
32.105  Definitions.
32.110  Coverage.
32.115  Policy.

                       Subpart B--Effect of Action

32.200  Debarment or suspension.
32.205  Ineligible persons.
32.210  Voluntary exclusion.
32.215  Exception provision.
32.220  Continuation of covered transactions.
32.225  Failure to adhere to restrictions.

                          Subpart C--Debarment

32.300  General.
32.305  Causes for debarment.
32.310  Procedures.
32.311  Investigation and referral.
32.312  Notice of proposed debarment.
32.313  Opportunity to contest proposed debarment.
32.314  Debarring official's decision.
32.315  Settlement and voluntary exclusion.
32.320  Period of debarment.
32.321  Reinstatement of facility eligibility.
32.325  Scope of debarment.
32.335  Appeal.

                          Subpart D--Suspension

32.400  General.
32.405  Causes for suspension.
32.410  Procedures.
32.411  Notice of suspension.
32.412  Opportunity to contest suspension.
32.413  Suspending official's decision.
32.415  Period of suspension.
32.420  Scope of suspension.
32.430  Appeal.

       Subpart E--Responsibilities of GSA, Agency and Participants

32.500  GSA responsibilities.
32.505  EPA responsibilities.
32.510  Participants' responsibilities.

          Subpart F--Drug-Free Workplace Requirements (Grants)

32.600  Purpose.
32.605  Definitions.
32.610  Coverage.
32.615  Grounds for suspension of payments, suspension or termination of 
          grants, or suspension or debarment.
32.620  Effect of violation.
32.625  Exception provision.
32.630  Certification requirements and procedures.
32.635  Reporting of and employee sanctions for convictions of criminal 
          drug offenses.

Appendix A to Part 32--Certification Regarding Debarment, Suspension, 
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 32--Certification Regarding Debarment, Suspension, 
          Ineligibility and Voluntary Exclusion--Lower-Tier Covered 
          Transaction
Appendix C to Part 32--Certification Regarding Drug-Free Workplace 
          Requirements

    Authority: E.O. 12549; 41 U.S.C. 701 et seq.; 7 U.S.C. 136 et seq.; 
15 U.S.C. 2601 et seq.; 20 U.S.C. 4011 et seq.; 33 U.S.C. 1251 et seq.; 
42 U.S.C. 300f, 4901, 6901, 7401, 9801 et seq.; E.O. 12689; E.O. 11738; 
Pub. L. 103-355 Sec. 2455.

    Source: 53 FR 19196, 19204, May 26, 1988, unless otherwise noted.

    Editorial Note: For nomenclature change see 53 FR 19196, May 26, 
1988.

    Cross Reference: See also Office of Management and Budget notice 
published at 55 FR 21679, May 25, 1990, and at 60 FR 33036, June 26, 
1995.



                           Subpart A--General



Sec. 32.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent 
permitted by law, Executive departments and agencies shall participate 
in a governmentwide system for nonprocurement debarment and suspension. 
A person who is debarred or suspended shall be excluded from Federal 
financial and nonfinancial assistance and benefits under Federal 
programs and activities. Debarment or suspension of a participant in a 
program by one agency shall have governmentwide effect.
    (b) These regulations implement section 3 of E.O. 12549 and the 
guidelines promulgated by the Office of Management and Budget under 
section 6 of the E.O. by:

[[Page 372]]

    (1) Prescribing the programs and activities that are covered by the 
governmentwide system;
    (2) Prescribing the governmentwide criteria and governmentwide 
minimum due process procedures that each agency shall use;
    (3) Providing for the listing of debarred and suspended 
participants, participants declared ineligible (see definition of 
``ineligible'' in Sec. 32.105), and participants who have voluntarily 
excluded themselves from participation in covered transactions;
    (4) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion; and
    (5) Offering such other guidance as necessary for the effective 
implementation and administration of the governmentwide system.
    (c) These regulations also implement Executive Order 12689 (3 CFR, 
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 
2455, 108 Stat. 3327) by--
    (1) Providing for the inclusion in the List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs all persons proposed for 
debarment, debarred or suspended under the Federal Acquisition 
Regulation, 48 CFR Part 9, subpart 9.4; persons against which 
governmentwide exclusions have been entered under this part; and persons 
determined to be ineligible; and
    (2) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion.
    (d) Although these regulations cover the listing of ineligible 
participants and the effect of such listing, they do not prescribe 
policies and procedures governing declarations of ineligibility.
    (e) Facilities ineligible to provide goods, materials, or services 
under Federal contracts, loans or assistance, pursuant to Section 306 of 
the Clean Air Act (CAA) or Section 508 of the Clean Water Act (CWA) are 
excluded in accordance with the terms of those statutes. Reinstatement 
of a CAA or CWA ineligible facility may be requested in accordance with 
the procedures at Sec. 32.321.

[60 FR 33040, 33059, June 26, 1995, as amended at 61 FR 28756, June 6, 
1996]



Sec. 32.105  Definitions.

    The following definitions apply to this part:
    Adequate evidence. Information sufficient to support the reasonable 
belief that a particular act or omission has occurred.
    Affiliate. Persons are affiliates of each other if, directly or 
indirectly, either one controls or has the power to control the other, 
or, a third person controls or has the power to control both. Indicia of 
control include, but are not limited to: interlocking management or 
ownership, identity of interests among family members, shared facilities 
and equipment, common use of employees, or a business entity organized 
following the suspension or debarment of a person which has the same or 
similar management, ownership, or principal employees as the suspended, 
debarred, ineligible, or voluntarily excluded person.
    Agency. Any executive department, military department or defense 
agency or other agency of the executive branch, excluding the 
independent regulatory agencies.
    Agency head. Administrator of the Environmental Protection Agency.
    CAA or CWA ineligibility. The status of a facility which, as 
provided in section 306 of the Clean Air Act (CAA) and section 508 of 
the Clean Water Act (CWA), is ineligible to be used in the performance 
of a Federal contract, subcontract, loan, assistance award or covered 
transaction. Such ineligibility commences upon conviction of a facility 
owner, lessee, or supervisor for a violation of section 113 of the CAA 
or section 309(c) of the CWA, which violation occurred at the facility. 
The ineligibility of the facility continues until such time as the EPA 
Debarring Official certifies that the condition giving rise to the CAA 
or CWA criminal conviction has been corrected.
    Civil judgment. The disposition of a civil action by any court of 
competent jurisdiction, whether entered by verdict, decision, 
settlement, stipulation, or otherwise creating a civil liability for the 
wrongful acts complained of; or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).

[[Page 373]]

    Conviction. A judgment or conviction of a criminal offense by any 
court of competent jurisdiction, whether entered upon a verdict or a 
plea, including a plea of nolo contendere.
    Debarment. An action taken by a debarring official in accordance 
with these regulations to exclude a person from participating in covered 
transactions. A person so excluded is ``debarred.''
    Debarring official. An official authorized to impose debarment. The 
debarring official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    (3) The Director, Office of Grants and Debarment, is the authorized 
Debarring Official.
    EPA. Environmental Protection Agency.
    Facility. Any building, plant, installation, structure, mine, 
vessel, floating craft, location or site of operations at which, or from 
which, a Federal contract, subcontract, loan, assistance award or 
covered transaction is to be performed. Where a location or site of 
operations contains or includes more than one building, plant, 
installation or structure, the entire location or site shall be deemed 
the facility unless otherwise limited by EPA.
    Indictment. Indictment for a criminal offense. An information or 
other filing by competent authority charging a criminal offense shall be 
given the same effect as an indictment.
    Ineligible. Excluded from participation in Federal nonprocurement 
programs pursuant to a determination of ineligibility under statutory, 
executive order, or regulatory authority, other than Executive Order 
12549 and its agency implementing regulations; for exemple, excluded 
pursuant to the Davis-Bacon Act and its implementing regulations, the 
equal employment opportunity acts and executive orders, or the 
environmental protection acts and executive orders. A person is 
ineligible where the determination of ineligibility affects such 
person's eligibility to participate in more than one covered 
transaction.
    Legal proceedings. Any criminal proceeding or any civil judicial 
proceeding to which the Federal Government or a State or local 
government or quasi-governmental authority is a party. The term includes 
appeals from such proceedings.
    List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs. A list compiled, maintained and distributed by the General 
Services Administration (GSA) containing the names and other information 
about persons who have been debarred, suspended, or voluntarily excluded 
under Executive Orders 12549 and 12689 and these regulations or 48 CFR 
part 9, subpart 9.4, persons who have been proposed for debarment under 
48 CFR part 9, subpart 9.4, and those persons who have been determined 
to be ineligible.
    Notice. A written communication served in person or sent by 
certified mail, return receipt requested, or its equivalent, to the last 
known address of a party, its identified counsel, its agent for service 
of process, or any partner, officer, director, owner, or joint venturer 
of the party. Notice, if undeliverable, shall be considered to have been 
received by the addressee five days after being properly sent to the 
last address known by the agency.
    Participant. Any person who submits a proposal for, enters into, or 
reasonably may be expected to enter into a covered transaction. This 
term also includes any person who acts on behalf of or is authorized to 
commit a participant in a covered transaction as an agent or 
representative of another participant.
    Person. Any individual, corporation, partnership, association, unit 
of government or legal entity, however organized, except: foreign 
governments or foreign governmental entities, public international 
organizations, foreign government owned (in whole or in part) or 
controlled entities, and entities consisting wholly or partially of 
foreign governments or foreign governmental entities.
    Preponderance of the evidence. Proof by information that, compared 
with that opposing it, leads to the conclusion that the fact at issue is 
more probably true than not.
    Principal. Officer, director, owner, partner, key employee, or other 
person within a participant with primary

[[Page 374]]

management or supervisory responsibilities; or a person who has a 
critical influence on or substantive control over a covered transaction, 
whether or not employed by the participant. Persons who have a critical 
influence on or substantive control over a covered transaction are:
    (1) Principal investigators.
    (2) Bid and proposal estimators and preparers.
    Proposal. A solicited or unsolicited bid, application, request, 
invitation to consider or similar communication by or on behalf of a 
person seeking to participate or to receive a benefit, directly or 
indirectly, in or under a covered transaction.
    Respondent. A person against whom a debarment or suspension action 
has been initiated.
    State. Any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, any territory or possession 
of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers that instrumentality to be an agency of the 
State government.
    Suspending official. An official authorized to impose suspension. 
The suspending official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    (3) The Director, Office of Grants and Debarment, is the authorized 
Suspending Official.
    Suspension. An action taken by a suspending official in accordance 
with these regulations that immediately excludes a person from 
participating in covered transactions for a temporary period, pending 
completion of an investigation and such legal, debarment, or Program 
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded 
is ``suspended.''
    Voluntary exclusion or voluntarily excluded. A status of 
nonparticipation or limited participation in covered transactions 
assumed by a person pursuant to the terms of a settlement.

[53 FR 19196, 19204, May 26, 1988, as amended at 53 FR 19196, May 26, 
1988; 59 FR 50692, Oct. 5, 1994; 60 FR 33040, 33059, June 26, 1995; 61 
FR 28756, June 6, 1996]



Sec. 32.110  Coverage.

    (a) These regulations apply to all persons who have participated, 
are currently participating or may reasonably be expected to participate 
in transactions under Federal nonprocurement programs. For purposes of 
these regulations such transactions will be referred to as ``covered 
transactions.''
    (1) Covered transaction. For purposes of these regulations, a 
covered transaction is a primary covered transaction or a lower tier 
covered transaction. Covered transactions at any tier need not involve 
the transfer of Federal funds.
    (i) Primary covered transaction. Except as noted in paragraph (a)(2) 
of this section, a primary covered transaction is any nonprocurement 
transaction between an agency and a person, regardless of type, 
including: grants, cooperative agreements, scholarships, fellowships, 
contracts of assistance, loans, loan guarantees, subsidies, insurance, 
payments for specified use, donation agreements and any other 
nonprocurement transactions between a Federal agency and a person. 
Primary covered transactions also include those transactions specially 
designated by the U.S. Department of Housing and Urban Development in 
such agency's regulations governing debarment and suspension.
    (ii) Lower tier covered transaction. A lower tier covered 
transaction is:
    (A) Any transaction between a participant and a person other than a 
procurement contract for goods or services, regardless of type, under a 
primary covered transaction.
    (B) Any procurement contract for goods or services between a 
participant and a person, regardless of type, expected to equal or 
exceed the Federal procurement small purchase threshold fixed at 10 
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary 
covered transaction.
    (C) Any procurement contract for goods or services between a 
participant

[[Page 375]]

and a person under a covered transaction, regardless of amount, under 
which that person will have a critical influence on or substantive 
control over that covered transaction. Such persons are:
    (1) Principal investigators.
    (2) Providers of federally-required audit services.
    (2) Exceptions. The following transactions are not covered:
    (i) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (ii) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, entities 
consisting wholly or partially of foreign governments or foreign 
governmental entities;
    (iii) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (iv) Federal employment;
    (A) For the purpose of this paragraph, no transactions under EPA 
assistance programs are deemed to be pursuant to agency-recognized 
emergencies or disasters.
    (B) [Reserved]
    (v) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (vi) Incidental benefits derived from ordinary governmental 
operations; and
    (vii) Other transactions where the application of these regulations 
would be prohibited by law.
    (b) Relationship to other sections. This section describes the types 
of transactions to which a debarment or suspension under the regulations 
will apply. Subpart B, ``Effect of Action,'' Sec. 32.200, ``Debarment or 
suspension,'' sets forth the consequences of a debarment or suspension. 
Those consequences would obtain only with respect to participants and 
principals in the covered transactions and activities described in 
Sec. 32.110(a). Sections 32.325, ``Scope of debarment,'' and 32.420, 
``Scope of suspension,'' govern the extent to which a specific 
participant or organizational elements of a participant would be 
automatically included within a debarment or suspension action, and the 
conditions under which affiliates or persons associated with a 
participant may also be brought within the scope of the action.
    (c) Relationship to Federal procurement activities. In accordance 
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment, 
suspension, proposed debarment or other governmentwide exclusion 
initiated under the Federal Acquisition Regulation (FAR) on or after 
August 25, 1995 shall be recognized by and effective for Executive 
Branch agencies and participants as an exclusion under this regulation. 
Similarly, any debarment, suspension or other governmentwide exclusion 
initiated under this regulation on or after August 25, 1995 shall be 
recognized by and effective for those agencies as a debarment or 
suspension under the FAR.
    (d) Except as provided in Sec. 32.215 of this part, Federal agencies 
shall not use a CAA or CWA ineligible facility in the performance of any 
Federal contract, subcontract, loan, assistance award or covered 
transaction.

[53 FR 19196, 19204, May 26, 1988, as amended at 53 FR 19197, May 26, 
1988; 60 FR 33041, 33059, June 26, 1995; 61 FR 28757, June 6, 1996]



Sec. 32.115  Policy.

    (a) In order to protect the public interest, it is the policy of the 
Federal Government to conduct business only with responsible persons. 
Debarment and suspension are discretionary actions that, taken in 
accordance with Executive Order 12549 and these regulations, are 
appropriate means to implement this policy.
    (b) Debarment and suspension are serious actions which shall be used 
only in the public interest and for the Federal Government's protection 
and not for purposes of punishment. Agencies may impose debarment or 
suspension for the causes and in accordance with the procedures set 
forth in these regulations.
    (c) When more than one agency has an interest in the proposed 
debarment or suspension of a person, consideration shall be given to 
designating one

[[Page 376]]

agency as the lead agency for making the decision. Agencies are 
encouraged to establish methods and procedures for coordinating their 
debarment or suspension actions.
    (d) It is EPA policy to exercise its authority to reinstate CAA or 
CWA ineligible facilities in a manner which is consistent with the 
policies in paragraphs (a) and (b) of this section.

[53 FR 19196, 19204, May 26, 1988, as amended at 53 FR 19197, May 26, 
1988; 61 FR 28757, June 6, 1996]



                       Subpart B--Effect of Action



Sec. 32.200  Debarment or suspension.

    (a) Primary covered transactions. Except to the extent prohibited by 
law, persons who are debarred or suspended shall be excluded from 
primary covered transactions as either participants or principals 
throughout the Executive Branch of the Federal Government for the period 
of their debarment, suspension, or the period they are proposed for 
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall 
enter into primary covered transactions with such excluded persons 
during such period, except as permitted pursuant to Sec. 32.215.
    (b) Lower tier covered transactions. Except to the extent prohibited 
by law, persons who have been proposed for debarment under 48 CFR part 
9, subpart 9.4, debarred or suspended shall be excluded from 
participating as either participants or principals in all lower tier 
covered transactions (see Sec. 32.110(a)(1)(ii)) for the period of their 
exclusion.
    (c) Exceptions. Debarment or suspension does not affect a person's 
eligibility for--
    (1) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (2) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, and 
entities consisting wholly or partially of foreign governments or 
foreign governmental entities;
    (3) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (4) Federal employment;
    (5) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (6) Incidental benefits derived from ordinary governmental 
operations; and
    (7) Other transactions where the application of these regulations 
would be prohibited by law.

[60 FR 33041, 33059, June 26, 1995]



Sec. 32.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 32.105(i), are 
excluded in accordance with the applicable statutory, executive order, 
or regulatory authority.



Sec. 32.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 32.315 are 
excluded in accordance with the terms of their settlements. EPA shall, 
and participants may, contact the original action agency to ascertain 
the extent of the exclusion.



Sec. 32.215   Exception provision.

    (a) EPA may grant an exception permitting a debarred, suspended, or 
voluntarily excluded person, or a person proposed for debarment under 48 
CFR part 9, subpart 9.4, to participate in a particular covered 
transaction upon a written determination by the agency head or an 
authorized designee stating the reason(s) for deviating from the 
Presidential policy established by Executive Order 12549 and 
Sec. 32.200. However, in accordance with the President's stated 
intention in the Executive Order, exceptions shall be granted only 
infrequently. Exceptions shall be reported in accordance with 
Sec. 32.505(a).
    (b) Any agency head, or authorized designee, may except any Federal 
contract, subcontract, loan, assistance award or covered transaction, 
individually or as a class, in whole or in part, from the prohibitions 
otherwise applicable by reason of a CAA or CWA ineligibility. The agency 
head granting the

[[Page 377]]

exception shall notify the EPA Debarring Official of the exception as 
soon, before or after granting the exception, as may be practicable. The 
justification for such an exception, or any renewal thereof, shall fully 
describe the purpose of the contract or covered transaction, and show 
why the paramount interest of the United States requires the exception.
    (c) The EPA Debarring Official is the official authorized to grant 
exceptions under this section for EPA.

[61 FR 28757, June 6, 1996]



Sec. 32.220  Continuation of covered transactions.

    (a) Notwithstanding the debarment, suspension, proposed debarment 
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or 
voluntary exclusion of any person by an agency, agencies and 
participants may continue covered transactions in existence at the time 
the person was debarred, suspended, proposed for debarment under 48 CFR 
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A 
decision as to the type of termination action, if any, to be taken 
should be made only after thorough review to ensure the propriety of the 
proposed action.
    (b) Agencies and participants shall not renew or extend covered 
transactions (other than no-cost time extensions) with any person who is 
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 
9.4, ineligible or voluntary excluded, except as provided in 
Sec. 32.215.

[60 FR 33041, 33059, June 26, 1995]



Sec. 32.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 32.215 or Sec. 32.220, a 
participant shall not knowingly do business under a covered transaction 
with a person who is--
    (1) Debarred or suspended;
    (2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
    (3) Ineligible for or voluntarily excluded from the covered 
transaction.
    (b) Violation of the restriction under paragraph (a) of this section 
may result in disallowance of costs, annulment or termination of award, 
issuance of a stop work order, debarment or suspension, or other 
remedies as appropriate.
    (c) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, proposed for debarment under 48 
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the 
covered transaction (See appendix B of these regulations), unless it 
knows that the certification is erroneous. An agency has the burden of 
proof that a participant did knowingly do business with a person that 
filed an erroneous certification.

[60 FR 33041, 33059, June 26, 1995]



                          Subpart C--Debarment



Sec. 32.300  General.

    The debarring official may debar a person for any of the causes in 
Sec. 32.305, using procedures established in Sec. Sec. 32.310 through 
32.314. The existence of a cause for debarment, however, does not 
necessarily require that the person be debarred; the seriousness of the 
person's acts or omissions and any mitigating factors shall be 
considered in making any debarment decision.



Sec. 32.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Sec. Sec. 32.300 through 32.314 for:
    (a) Conviction of or civil judgment for:
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, 
receiving stolen property, making false claims, or obstruction of 
justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and

[[Page 378]]

directly affects the present responsibility of a person.
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as:
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction.
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, the effective date of these regulations, or a 
procurement debarment by any Federal agency taken pursuant to 48 CFR 
subpart 9.4;
    (2) Knowingly doing business with a debarred, suspended, ineligible, 
or voluntarily excluded person, in connection with a covered 
transaction, except as permitted in Sec. Sec. 32.215 or 32.220;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 32.315 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of any requirement of subpart F of this part, relating 
to providing a drug-free workplace, as set forth in Sec. 32.615 of this 
part.
    (d) Any other cause of so serious or compelling a nature that it 
affects the present responsibility of a person.

[53 FR 19196, 19204, May 26, 1988, as amended at 54 FR 4962, Jan. 31, 
1989]



Sec. 32.310  Procedures.

    EPA shall process debarment actions as informally as practicable, 
consistent with the principles of fundamental fairness, using the 
procedures in Sec. Sec. 32.311 through 32.314.



Sec. 32.311  Investigation and referral.

    Information concerning the existence of a cause for debarment from 
any source shall be promptly reported, investigated, and referred, when 
appropriate, to the debarring official for consideration. After 
consideration, the debarring official may issue a notice of proposed 
debarment.



Sec. 32.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the 
respondent advising:
    (a) That debarment is being considered;
    (b) Of the reasons for the proposed debarment in terms sufficient to 
put the respondent on notice of the conduct or transaction(s) upon which 
it is based;
    (c) Of the cause(s) relied upon under Sec. 32.305 for proposing 
debarment;
    (d) Of the provisions of Sec. 32.311 through Sec. 32.314, and any 
other EPA procedures, if applicable, governing debarment decisionmaking; 
and
    (e) Of the potential effect of a debarment.



Sec. 32.313  Opportunity to contest proposed debarment.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of proposed debarment, the respondent may submit, in person, in 
writing, or through a representative, information and argument in 
opposition to the proposed debarment.
    (1) If the respondent desires a hearing, it shall submit a written 
request to the debarring official within the 30-day period following 
receipt of the notice of proposed debarment.
    (2) [Reserved]
    (b) Additional proceedings as to disputed material facts. (1) In 
actions not based upon a conviction or civil judgment, if the debarring 
official finds that the respondent's submission in opposition raises a 
genuine dispute over facts material to the proposed debarment, 
respondent(s) shall be afforded

[[Page 379]]

an opportunity to appear with a representative, submit documentary 
evidence, present witnesses, and confront any witness the agency 
presents.
    (2) A transcribed record of any additional proceedings shall be made 
available at cost to the respondent, upon request, unless the respondent 
and the agency, by mutual agreement, waive the requirement for a 
transcript.

[53 FR 19196, 19204, May 26, 1988, as amended at 53 FR 19197, May 26, 
1988]



Sec. 32.314  Debarring official's decision.

    (a) No additional proceedings necessary. In actions based upon a 
conviction or civil judgment, or in which there is no genuine dispute 
over material facts, the debarring official shall make a decision on the 
basis of all the information in the administrative record, including any 
submission made by the respondent. The decision shall be made within 45 
days after receipt of any information and argument submitted by the 
respondent, unless the debarring official extends this period for good 
cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The debarring 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any such findings, in whole or in part, only after specifically 
determining them to be arbitrary and capricious or clearly erroneous.
    (3) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (c) (1) Standard of proof. In any debarment action, the cause for 
debarment must be established by a preponderance of the evidence. Where 
the proposed debarment is based upon a conviction or civil judgment, the 
standard shall be deemed to have been met.
    (2) Burden of proof. The burden of proof is on the agency proposing 
debarment.
    (d) Notice of debarring official's decision. (1) If the debarring 
official decides to impose debarment, the respondent shall be given 
prompt notice:
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates; 
and
    (iv) Advising that the debarment is effective for covered 
transactions throughout the executive branch of the Federal Government 
unless an agency head or an authorized designee makes the determination 
referred to in Sec. 32.215.
    (2) If the debarring official decides not to impose debarment, the 
respondent shall be given prompt notice of that decision. A decision not 
to impose debarment shall be without prejudice to a subsequent 
imposition of debarment by any other agency.



Sec. 32.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, EPA may, at any 
time, settle a debarment or suspension action.
    (1) The debarring and suspending official is the official authorized 
to settle debarment or suspension actions.
    (2) [Reserved]
    (b) If a participant and the agency agree to a voluntary exclusion 
of the participant, such voluntary exclusion shall be entered on the 
Nonpro-curement List (see subpart E).
    (c) The EPA Debarring Official may consider matters regarding 
present responsibility, as well as any other matter regarding the 
conditions giving rise to alleged CAA or CWA violations in anticipation 
of entry of a plea, judgment or conviction. If, at any time, it is in 
the interest of the United States to conclude such matters pursuant to a 
comprehensive settlement agreement, the EPA Debarring Official may 
conclude the debarment and ineligibility matters as part of any such 
settlement, so long as he or she certifies that the condition giving 
rise to the CAA or CWA violation has been corrected.

[53 FR 19196, 19204, May 26, 1988, as amended at 53 FR 19197, May 26, 
1988; 61 FR 28757, June 6, 1996]

[[Page 380]]



Sec. 32.320  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). If a suspension precedes a debarment, the 
suspension period shall be considered in determining the debarment 
period.
    (1) Debarment for causes other than those related to a violation of 
the requirements of subpart F of this part generally should not exceed 
three years. Where circumstances warrant, a longer period of debarment 
may be imposed.
    (2) In the case of a debarment for a violation of the requirements 
of subpart F of this part (see Sec. 32.305(c)(5)), the period of 
debarment shall not exceed five years.
    (b) The debarring official may extend an existing debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest. However, a debarment may not 
be extended solely on the basis of the facts and circumstances upon 
which the initial debarment action was based. If debarment for an 
additional period is determined to be necessary, the procedures of 
Sec. Sec. 32.311 through 32.314 shall be followed to extend the 
debarment.
    (c) The respondent may request the debarring official to reverse the 
debarment decision or to reduce the period or scope of debarment. Such a 
request shall be in writing and supported by documentation. The 
debarring official may grant such a request for reasons including, but 
not limited to:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or civil judgment upon which the 
debarment was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring official deems appropriate.

[53 FR 19196, 19204, May 26, 1988, as amended at 54 FR 4962, Jan. 31, 
1989]



Sec. 32.321  Reinstatement of facility eligibility.

    (a) A written petition to reinstate the eligibility of a CAA or CWA 
ineligible facility may be submitted to the EPA Debarring Official. The 
petitioner bears the burden of providing sufficient information and 
documentation to establish, by a preponderance of the evidence, that the 
condition giving rise to the CAA or CWA conviction has been corrected. 
If the material facts set forth in the petition are disputed, and the 
Debarring Official denies the petition, the petitioner shall be afforded 
the opportunity to have additional proceedings as provided in 
Sec. 32.314(b).
    (b) A decision by the EPA Debarring Official denying a petition for 
reinstatement may be appealed under Sec. 32.335.

[61 FR 28757, June 6, 1996]



Sec. 32.325  Scope of debarment.

    (a) Scope in general. (1) Debarment of a person under these 
regulations constitutes debarment of all its divisions and other 
organizational elements from all covered transactions, unless the 
debarment decision is limited by its terms to one or more specifically 
identified individuals, divisions or other organizational elements or to 
specific types of transactions.
    (2) The debarment action may include any affiliate of the 
participant that is specifically named and given notice of the proposed 
debarment and an opportunity to respond (see Sec. Sec. 32.311 through 
32.314).
    (b) Imputing conduct. For purposes of determining the scope of 
debarment, conduct may be imputed as follows:
    (1) Conduct imputed to participant. The fraudulent, criminal or 
other seriously improper conduct of any officer, director, shareholder, 
partner, employee, or other individual associated with a participant may 
be imputed to the participant when the conduct occurred in connection 
with the individual's performance of duties for or on behalf of the 
participant, or with the participant's knowledge, approval, or 
acquiescence. The participant's acceptance of the benefits derived from 
the conduct shall be evidence of such knowledge, approval, or 
acquiescence.
    (2) Conduct imputed to individuals associated with participant. The 
fraudulent, criminal, or other seriously improper

[[Page 381]]

conduct of a participant may be imputed to any officer, director, 
shareholder, partner, employee, or other individual associated with the 
participant who participated in, knew of, or had reason to know of the 
participant's conduct.
    (3) Conduct of one participant imputed to other participants in a 
joint venture. The fraudulent, criminal, or other seriously improper 
conduct of one participant in a joint venture, grant pursuant to a joint 
application, or similar arrangement may be imputed to other participants 
if the conduct occurred for or on behalf of the joint venture, grant 
pursuant to a joint application, or similar arrangement may be imputed 
to other participants if the conduct occurred for or on behalf of the 
joint venture, grant pursuant to a joint application, or similar 
arrangement or with the knowledge, approval, or acquiescence of these 
participants. Acceptance of the benefits derived from the conduct shall 
be evidence of such knowledge, approval, or acquiescence.



Sec. 32.335  Appeal.

    (a) The debarment determination under Sec. 32.314 shall be final. 
However, any party to the action may request the Assistant Administrator 
for Administration and Resources Management (Assistant Administrator), 
to review the findings of the Debarring Official by filing a request 
with the Assistant Administrator within 30 calendar days of the party's 
receipt of the debarment determination, or its reconsideration. The 
request must be in writing and set forth the specific reasons why relief 
should be granted.
    (b) A review under this section shall be at the discretion of the 
Assistant Administrator. If a review is granted, the debarring official 
may stay the effective date of a debarment order pending resolution of 
the appeal. If a debarment is stayed, the stay shall be automatically 
lifted if the Assistant Administrator affirms the debarment.
    (c) The review shall be based solely upon the record. The Assistant 
Administrator may set aside a determination only if it is found to be 
arbitrary, capricious, and abuse of discretion, or based upon a clear 
error of law.
    (d) The Assistant Administrator's subsequent determination shall be 
in writing and mailed to all parties.
    (e) A determination under Sec. 32.314 or a review under this section 
shall not be subject to a dispute or a bid protest under parts 30, 31 or 
33 of this subchapter.

[53 FR 19197, May 26, 1988, as amended at 59 FR 50693, Oct. 5, 1994]



                          Subpart D--Suspension



Sec. 32.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 32.405 using procedures established in Sec. Sec. 32.410 
through 32.413.
    (b) Suspension is a serious action to be imposed only when:
    (1) There exists adequate evidence of one or more of the causes set 
out in Sec. 32.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the agency should 
consider how much information is available, how credible it is given the 
circumstances, whether or not important allegations are corroborated, 
and what inferences can reasonably be drawn as a result. This assessment 
should include an examination of basic documents such as grants, 
cooperative agreements, loan authorizations, and contracts.



Sec. 32.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Sec. Sec. 32.400 through 32.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in 
Sec. 32.305(a); or
    (2) That a cause for debarment under Sec. 32.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 32.410  Procedures.

    (a) Investigation and referral. Information concerning the existence 
of a cause for suspension from any source shall be promptly reported, 
investigated, and referred, when appropriate, to the suspending official 
for consideration. After consideration, the

[[Page 382]]

suspending official may issue a notice of suspension.
    (b) Decisionmaking process. EPA shall process suspension actions as 
informally as practicable, consistent with principles of fundamental 
fairness, using the procedures in Sec. 32.411 through Sec. 32.413.



Sec. 32.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or 
other adequate evidence that the respondent has committed irregularities 
seriously reflecting on the propriety of further Federal Government 
dealings with the respondent;
    (c) Describing any such irregularities in terms sufficient to put 
the respondent on notice without disclosing the Federal Government's 
evidence;
    (d) Of the cause(s) relied upon under Sec. 32.405 for imposing 
suspension;
    (e) That the suspension is for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Sec. 32.411 through Sec. 32.413 and any 
other EPA procedures, if applicable, governing suspension 
decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 32.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of suspension, the respondent may submit, in person, in writing, 
or through a representative, information and argument in opposition to 
the suspension.
    (1) If the respondent desires a hearing, it shall submit a written 
request to the suspending official within the 30-day period following 
receipt of the notice of suspension.
    (2) [Reserved]
    (b) Additional proceedings as to disputed material facts. (1) If the 
suspending official finds that the respondent's submission in opposition 
raises a genuine dispute over facts material to the suspension, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents, unless:
    (i) The action is based on an indictment, conviction or civil 
judgment, or
    (ii) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Federal Government in 
pending or contemplated legal proceedings based on the same facts as the 
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent, upon request, 
unless the respondent and the agency, by mutual agreement, waive the 
requirement for a transcript.

[53 FR 19196, 19204, May 26, 1988, as amended at 53 FR 19197, May 26, 
1988]



Sec. 32.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 32.320(c) for reasons for reducing the period or scope 
of debarment) or may leave it in force. However, a decision to modify or 
terminate the suspension shall be without prejudice to the subsequent 
imposition of suspension by any other agency or debarment by any agency. 
The decision shall be rendered in accordance with the following 
provisions:
    (a) No additional proceedings necessary. In actions: based on an 
indictment, conviction, or civil judgment; in which there is no genuine 
dispute over material facts; or in which additional proceedings to 
determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official shall make a 
decision on the basis of all the information in the administrative 
record, including any submission made by the respondent. The decision 
shall be made within 45 days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The suspending 
official shall base the decision

[[Page 383]]

on the facts as found, together with any information and argument 
submitted by the respondent and any other information in the 
administrative record.
    (2) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary or capricious or clearly 
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice 
of the suspending official's decision shall be sent to the respondent.



Sec. 32.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings, unless terminated sooner by the 
suspending official or as provided in paragraph (b) of this section.
    (b) If legal or administrative proceedings are not initiated within 
12 months after the date of the suspension notice, the suspension shall 
be terminated unless an Assistant Attorney General or United States 
Attorney requests its extension in writing, in which case it may be 
extended for an additional six months. In no event may a suspension 
extend beyond 18 months, unless such proceedings have been initiated 
within that period.
    (c) The suspending official shall notify the Department of Justice 
of an impending termination of a suspension, at least 30 days before the 
12-month period expires, to give that Department an opportunity to 
request an extension.



Sec. 32.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 32.325), except that the procedures of Sec. Sec. 32.410 
through 32.413 shall be used in imposing a suspension.



Sec. 32.430  Appeal.

    (a) The suspension determination under Sec. 32.413 shall be final. 
However, any party to the action may request the Assistant Administrator 
for Administration and Resources Management (Assistant Administrator), 
to review the findings of the suspending official by filing a request 
with the Assistant Administrator within 30 calendar days of the party's 
receipt of the suspension determination, or its reconsideration. The 
request must be in writing and set forth the specific reasons why relief 
should be granted.
    (b) A review under this section shall be at the discretion of the 
Assistant Administrator. If a review is granted, the suspending official 
may stay the effective date of a suspension order pending resolution of 
appeal. If a suspension is stayed, the stay shall be automatically 
lifted if the Assistant Administrator affirms the suspension.
    (c) The review shall be based solely upon the record. The Assistant 
Administrator may set aside a determination only if it is found to be 
arbitrary, capricious, an abuse of discretion, or based upon a clear 
error of law.
    (d) The Assistant Administrator's subsequent determination shall be 
in writing and mailed to all parties.
    (e) A determination under Sec. 32.413 or a review under this section 
shall not be subject to a dispute or a bid protest under parts 30, 31, 
or 33 of this subchapter.

[53 FR 19197, May 26, 1988, as amended at 59 FR 50693, Oct. 5, 1994]



       Subpart E--Responsibilities of GSA, Agency and Participants



Sec. 32.500  GSA responsibilities.

    (a) In accordance with the OMB guidelines, GSA shall compile, 
maintain, and distribute a list of all persons who have been debarred, 
suspended, or voluntarily excluded by agencies under Executive Order 
12549 and these regulations, and those who have been determined to be 
ineligible.
    (b) At a minimum, this list shall indicate:
    (1) The names and addresses of all debarred, suspended, ineligible, 
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;

[[Page 384]]

    (5) Any termination date for each listing; and
    (6) The agency and name and telephone number of the agency point of 
contact for the action.



Sec. 32.505  EPA responsibilities.

    (a) The agency shall provide GSA with current information concerning 
debarments, suspension, determinations of ineligibility, and voluntary 
exclusions it has taken. Until February 18, 1989, the agency shall also 
provide GSA and OMB with information concerning all transactions in 
which EPA has granted exceptions under Sec. 32.215 permitting 
participation by debarred, suspended, or voluntarily excluded persons.
    (b) Unless an alternative schedule is agreed to by GSA, the agency 
shall advise GSA of the information set forth in Sec. 32.500(b) and of 
the exceptions granted under Sec. 32.215 within five working days after 
taking such actions.
    (c) The agency shall direct inquiries concerning listed persons to 
the agency that took the action.
    (d) Agency officials shall check the Nonprocurement List before 
entering covered transactions to determine whether a participant in a 
primary transaction is debarred, suspended, ineligible, or voluntarily 
excluded (Tel. ).
    (e) Agency officials shall check the Nonprocurement List before 
approving principals or lower tier participants where agency approval of 
the principal or lower tier participant is required under the terms of 
the transaction, to determine whether such principals or participants 
are debarred, suspended, ineligible, or voluntarily excluded.



Sec. 32.510  Participants' responsibilities.

    (a) Certification by participants in primary covered transactions. 
Each participant shall submit the certification in Appendix A to this 
part for it and its principals at the time the participant submits its 
proposal in connection with a primary covered transaction, except that 
States need only complete such certification as to their principals. 
Participants may decide the method and frequency by which they determine 
the eligibility of their principals. In addition, each participant may, 
but is not required to, check the Nonprocurement List for its principals 
(Tel. ). Adverse information on the certification will not necessarily 
result in denial of participation. However, the certification, and any 
additional information pertaining to the certification submitted by the 
participant, shall be considered in the administration of covered 
transactions.
    (b) Certification by participants in lower tier covered 
transactions. (1) Each participant shall require participants in lower 
tier covered transactions to include the certification in Appendix B to 
this part for it and its principals in any proposal submitted in 
connection with such lower tier covered transactions.
    (2) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, ineligible, or voluntarily 
excluded from the covered transaction by any Federal agency, unless it 
knows that the certification is erroneous. Participants may decide the 
method and frequency by which they determine the eligiblity of their 
principals. In addition, a participant may, but is not required to, 
check the Nonprocurement List for its principals and for participants 
(Tel. ).
    (c) Changed circumstances regarding certification. A participant 
shall provide immediate written notice to EPA if at any time the 
participant learns that its certification was erroneous when submitted 
or has become erroneous by reason of changed circumstances. Participants 
in lower tier covered transactions shall provide the same updated notice 
to the participant to which it submitted its proposals.



          Subpart F--Drug-Free Workplace Requirements (Grants)

    Source: 55 FR 21688, 21701, May 25, 1990, unless otherwise noted.



Sec. 32.600  Purpose.

    (a) The purpose of this subpart is to carry out the Drug-Free 
Workplace Act of 1988 by requiring that--
    (1) A grantee, other than an individual, shall certify to the agency 
that it will provide a drug-free workplace;

[[Page 385]]

    (2) A grantee who is an individual shall certify to the agency that, 
as a condition of the grant, he or she will not engage in the unlawful 
manufacture, distribution, dispensing, possession or use of a controlled 
substance in conducting any activity with the grant.
    (b) Requirements implementing the Drug-Free Workplace Act of 1988 
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, 
and 52.2.



Sec. 32.605  Definitions.

    (a) Except as amended in this section, the definitions of 
Sec. 32.105 apply to this subpart.
    (b) For purposes of this subpart--
    (1) Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15;
    (2) Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    (3) Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    (4) Drug-free workplace means a site for the performance of work 
done in connection with a specific grant at which employees of the 
grantee are prohibited from engaging in the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance;
    (5) Employee means the employee of a grantee directly engaged in the 
performance of work under the grant, including:
    (i) All direct charge employees;
    (ii) All indirect charge employees, unless their impact or 
involvement is insignificant to the performance of the grant; and,
    (iii) Temporary personnel and consultants who are directly engaged 
in the performance of work under the grant and who are on the grantee's 
payroll.

This definition does not include workers not on the payroll of the 
grantee (e.g., volunteers, even if used to meet a matching requirement; 
consultants or independent contractors not on the payroll; or employees 
of subrecipients or subcontractors in covered workplaces);
    (6) Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency;
    (7) Grant means an award of financial assistance, including a 
cooperative agreement, in the form of money, or property in lieu of 
money, by a Federal agency directly to a grantee. The term grant 
includes block grant and entitlement grant programs, whether or not 
exempted from coverage under the grants management government-wide 
common rule on uniform administrative requirements for grants and 
cooperative agreements. The term does not include technical assistance 
that provides services instead of money, or other assistance in the form 
of loans, loan guarantees, interest subsidies, insurance, or direct 
appropriations; or any veterans' benefits to individuals, i.e., any 
benefit to veterans, their families, or survivors by virtue of the 
service of a veteran in the Armed Forces of the United States;
    (8) Grantee means a person who applies for or receives a grant 
directly from a Federal agency (except another Federal agency);
    (9) Individual means a natural person;
    (10) State means any of the States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers the instrumentality to be an agency of the 
State government.

[[Page 386]]



Sec. 32.610  Coverage.

    (a) This subpart applies to any grantee of the agency.
    (b) This subpart applies to any grant, except where application of 
this subpart would be inconsistent with the international obligations of 
the United States or the laws or regulations of a foreign government. A 
determination of such inconsistency may be made only by the agency head 
or his/her designee.
    (c) The provisions of subparts A, B, C, D and E of this part apply 
to matters covered by this subpart, except where specifically modified 
by this subpart. In the event of any conflict between provisions of this 
subpart and other provisions of this part, the provisions of this 
subpart are deemed to control with respect to the implementation of 
drug-free workplace requirements concerning grants.



Sec. 32.615  Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.

    A grantee shall be deemed in violation of the requirements of this 
subpart if the agency head or his or her official designee determines, 
in writing, that--
    (a) The grantee has made a false certification under Sec. 32.630;
    (b) With respect to a grantee other than an individual--
    (1) The grantee has violated the certification by failing to carry 
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the 
certification (Alternate I to appendix C) or
    (2) Such a number of employees of the grantee have been convicted of 
violations of criminal drug statutes for violations occurring in the 
workplace as to indicate that the grantee has failed to make a good 
faith effort to provide a drug-free workplace.
    (c) With respect to a grantee who is an individual--
    (1) The grantee has violated the certification by failing to carry 
out its requirements (Alternate II to appendix C); or
    (2) The grantee is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any grant activity.



Sec. 32.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in 
Sec. 32.615, and in accordance with applicable law, the grantee shall be 
subject to one or more of the following actions:
    (1) Suspension of payments under the grant;
    (2) Suspension or termination of the grant; and
    (3) Suspension or debarment of the grantee under the provisions of 
this part.
    (b) Upon issuance of any final decision under this part requiring 
debarment of a grantee, the debarred grantee shall be ineligible for 
award of any grant from any Federal agency for a period specified in the 
decision, not to exceed five years (see Sec. 32.320(a)(2) of this part).



Sec. 32.625  Exception provision.

    The agency head may waive with respect to a particular grant, in 
writing, a suspension of payments under a grant, suspension or 
termination of a grant, or suspension or debarment of a grantee if the 
agency head determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



Sec. 32.630  Certification requirements and procedures.

    (a)(1) As a prior condition of being awarded a grant, each grantee 
shall make the appropriate certification to the Federal agency providing 
the grant, as provided in Appendix C to this part.
    (2) Grantees are not required to make a certification in order to 
continue receiving funds under a grant awarded before March 18, 1989, or 
under a no-cost time extension of such a grant. However, the grantee 
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
    (b) Except as provided in this section, all grantees shall make the 
required certification for each grant. For mandatory formula grants and 
entitlements that have no application process, grantees shall submit a 
one-time

[[Page 387]]

certification in order to continue receiving awards.
    (c) A grantee that is a State may elect to make one certification in 
each Federal fiscal year. States that previously submitted an annual 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. Except as provided in paragraph (d) of this 
section, this certification shall cover all grants to all State agencies 
from any Federal agency. The State shall retain the original of this 
statewide certification in its Governor's office and, prior to grant 
award, shall ensure that a copy is submitted individually with respect 
to each grant, unless the Federal agency has designated a central 
location for submission.
    (d)(1) The Governor of a State may exclude certain State agencies 
from the statewide certification and authorize these agencies to submit 
their own certifications to Federal agencies. The statewide 
certification shall name any State agencies so excluded.
    (2) A State agency to which the statewide certification does not 
apply, or a State agency in a State that does not have a statewide 
certification, may elect to make one certification in each Federal 
fiscal year. State agencies that previously submitted a State agency 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. The State agency shall retain the original of 
this State agency-wide certification in its central office and, prior to 
grant award, shall ensure that a copy is submitted individually with 
respect to each grant, unless the Federal agency designates a central 
location for submission.
    (3) When the work of a grant is done by more than one State agency, 
the certification of the State agency directly receiving the grant shall 
be deemed to certify compliance for all workplaces, including those 
located in other State agencies.
    (e)(1) For a grant of less than 30 days performance duration, 
grantees shall have this policy statement and program in place as soon 
as possible, but in any case by a date prior to the date on which 
performance is expected to be completed.
    (2) For a grant of 30 days or more performance duration, grantees 
shall have this policy statement and program in place within 30 days 
after award.
    (3) Where extraordinary circum-stances warrant for a specific grant, 
the grant officer may determine a different date on which the policy 
statement and program shall be in place.



Sec. 32.635  Reporting of and employee sanctions for convictions of criminal drug offenses.

    (a) When a grantee other than an individual is notified that an 
employee has been convicted for a violation of a criminal drug statute 
occurring in the workplace, it shall take the following actions:
    (1) Within 10 calendar days of receiving notice of the conviction, 
the grantee shall provide written notice, including the convicted 
employee's position title, to every grant officer, or other designee on 
whose grant activity the convicted employee was working, unless a 
Federal agency has designated a central point for the receipt of such 
notifications. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.
    (2) Within 30 calendar days of receiving notice of the conviction, 
the grantee shall do the following with respect to the employee who was 
convicted.
    (i) Take appropriate personnel action against the employee, up to 
and including termination, consistent with requirements of the 
Rehabilitation Act of 1973, as amended; or
    (ii) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency.
    (b) A grantee who is an individual who is convicted for a violation 
of a criminal drug statute occurring during the conduct of any grant 
activity shall report the conviction, in writing, within 10 calendar 
days, to his or her Federal agency grant officer, or other designee, 
unless the Federal agency has designated a central point for the receipt 
of such notices. Notification shall include the identification number(s)

[[Page 388]]

for each of the Federal agency's affected grants.

(Approved by the Office of Management and Budget under control number 
0991-0002)

 Appendix A to Part 32--Certification Regarding Debarment, Suspension, 
     and Other Responsibility Matters--Primary Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective primary 
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required 
below will not necessarily result in denial of participation in this 
covered transaction. The prospective participant shall submit an 
explanation of why it cannot provide the certification set out below. 
The certification or explanation will be considered in connection with 
the department or agency's determination whether to enter into this 
transaction. However, failure of the prospective primary participant to 
furnish a certification or an explanation shall disqualify such person 
from participation in this transaction.
    3. The certification in this clause is a material representation of 
fact upon which reliance was placed when the department or agency 
determined to enter into this transaction. If it is later determined 
that the prospective primary participant knowingly rendered an erroneous 
certification, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.
    4. The prospective primary participant shall provide immediate 
written notice to the department or agency to which this proposal is 
submitted if at any time the prospective primary participant learns that 
its certification was erroneous when submitted or has become erroneous 
by reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meanings set out in the Definitions and Coverage 
sections of the rules implementing Executive Order 12549. You may 
contact the department or agency to which this proposal is being 
submitted for assistance in obtaining a copy of those regulations.
    6. The prospective primary participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency entering into this transaction.
    7. The prospective primary participant further agrees by submitting 
this proposal that it will include the clause titled ``Certification 
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency 
entering into this covered transaction, without modification, in all 
lower tier covered transactions and in all solicitations for lower tier 
covered transactions.
    8. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    9. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    10. Except for transactions authorized under paragraph 6 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.

Certification Regarding Debarment, Suspension, and Other Responsibility 
                  Matters--Primary Covered Transactions

    (1) The prospective primary participant certifies to the best of its 
knowledge and belief, that it and its principals:
    (a) Are not presently debarred, suspended, proposed for debarment, 
declared ineligible, or voluntarily excluded by any Federal department 
or agency;
    (b) Have not within a three-year period preceding this proposal been 
convicted of or had a civil judgment rendered against them

[[Page 389]]

for commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public (Federal, State 
or local) transaction or contract under a public transaction; violation 
of Federal or State antitrust statutes or commission of embezzlement, 
theft, forgery, bribery, falsification or destruction of records, making 
false statements, or receiving stolen property;
    (c) Are not presently indicted for or otherwise criminally or 
civilly charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses enumerated in paragraph (1)(b) of this 
certification; and
    (d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local) 
terminated for cause or default.
    (2) Where the prospective primary participant is unable to certify 
to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042, 33059, June 26, 1995]

 Appendix B to Part 32--Certification Regarding Debarment, Suspension, 
 Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective lower 
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of 
fact upon which reliance was placed when this transaction was entered 
into. If it is later determined that the prospective lower tier 
participant knowingly rendered an erroneous certification, in addition 
to other remedies available to the Federal Government the department or 
agency with which this transaction originated may pursue available 
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate 
written notice to the person to which this proposal is submitted if at 
any time the prospective lower tier participant learns that its 
certification was erroneous when submitted or had become erroneous by 
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meaning set out in the Definitions and Coverage 
sections of rules implementing Executive Order 12549. You may contact 
the person to which this proposal is submitted for assistance in 
obtaining a copy of those regulations.
    5. The prospective lower tier participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency with which this transaction originated.
    6. The prospective lower tier participant further agrees by 
submitting this proposal that it will include this clause titled 
``Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion-Lower Tier Covered Transaction,'' without 
modification, in all lower tier covered transactions and in all 
solicitations for lower tier covered transactions.
    7. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from covered transactions, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    8. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    9. Except for transactions authorized under paragraph 5 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency with which this transaction 
originated may pursue available remedies, including suspension and/or 
debarment.

    Certification Regarding Debarment, Suspension, Ineligibility an 
          Voluntary Exclusion--Lower Tier Covered Transactions

    (1) The prospective lower tier participant certifies, by submission 
of this proposal, that neither it nor its principals is presently 
debarred, suspended, proposed for debarment, declared ineligible, or 
voluntarily excluded

[[Page 390]]

from participation in this transaction by any Federal department or 
agency.
    (2) Where the prospective lower tier participant is unable to 
certify to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042, 33059, June 26, 1995]

   Appendix C to Part 32--Certification Regarding Drug-Free Workplace 
                              Requirements

                     Instructions for Certification

    1. By signing and/or submitting this application or grant agreement, 
the grantee is providing the certification set out below.
    2. The certification set out below is a material representation of 
fact upon which reliance is placed when the agency awards the grant. If 
it is later determined that the grantee knowingly rendered a false 
certification, or otherwise violates the requirements of the Drug-Free 
Workplace Act, the agency, in addition to any other remedies available 
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
    3. For grantees other than individuals, Alternate I applies.
    4. For grantees who are individuals, Alternate II applies.
    5. Workplaces under grants, for grantees other than individuals, 
need not be identified on the certification. If known, they may be 
identified in the grant application. If the grantee does not identify 
the workplaces at the time of application, or upon award, if there is no 
application, the grantee must keep the identity of the workplace(s) on 
file in its office and make the information available for Federal 
inspection. Failure to identify all known workplaces constitutes a 
violation of the grantee's drug-free workplace requirements.
    6. Workplace identifications must include the actual address of 
buildings (or parts of buildings) or other sites where work under the 
grant takes place. Categorical descriptions may be used (e.g., all 
vehicles of a mass transit authority or State highway department while 
in operation, State employees in each local unemployment office, 
performers in concert halls or radio studios).
    7. If the workplace identified to the agency changes during the 
performance of the grant, the grantee shall inform the agency of the 
change(s), if it previously identified the workplaces in question (see 
paragraph five).
    8. Definitions of terms in the Nonprocurement Suspension and 
Debarment common rule and Drug-Free Workplace common rule apply to this 
certification. Grantees' attention is called, in particular, to the 
following definitions from these rules:
    Controlled substance means a controlled substance in Schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812) and as 
further defined by regulation (21 CFR 1308.11 through 1308.15);
    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    Employee means the employee of a grantee directly engaged in the 
performance of work under a grant, including: (i) All direct charge 
employees; (ii) All indirect charge employees unless their impact or 
involvement is insignificant to the performance of the grant; and, (iii) 
Temporary personnel and consultants who are directly engaged in the 
performance of work under the grant and who are on the grantee's 
payroll. This definition does not include workers not on the payroll of 
the grantee (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the grantee's 
payroll; or employees of subrecipients or subcontractors in covered 
workplaces).

        Certification Regarding Drug-Free Workplace Requirements

             Alternate I. (Grantees Other Than Individuals)

    A. The grantee certifies that it will or will continue to provide a 
drug-free workplace by:
    (a) Publishing a statement notifying employees that the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance is prohibited in the grantee's workplace and 
specifying the actions that will be taken against employees for 
violation of such prohibition;
    (b) Establishing an ongoing drug-free awareness program to inform 
employees about--
    (1) The dangers of drug abuse in the workplace;
    (2) The grantee's policy of maintaining a drug-free workplace;
    (3) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (4) The penalties that may be imposed upon employees for drug abuse 
violations occurring in the workplace;
    (c) Making it a requirement that each employee to be engaged in the 
performance of the grant be given a copy of the statement required by 
paragraph (a);
    (d) Notifying the employee in the statement required by paragraph 
(a) that, as a

[[Page 391]]

condition of employment under the grant, the employee will--
    (1) Abide by the terms of the statement; and
    (2) Notify the employer in writing of his or her conviction for a 
violation of a criminal drug statute occurring in the workplace no later 
than five calendar days after such conviction;
    (e) Notifying the agency in writing, within ten calendar days after 
receiving notice under paragraph (d)(2) from an employee or otherwise 
receiving actual notice of such conviction. Employers of convicted 
employees must provide notice, including position title, to every grant 
officer or other designee on whose grant activity the convicted employee 
was working, unless the Federal agency has designated a central point 
for the receipt of such notices. Notice shall include the identification 
number(s) of each affected grant;
    (f) Taking one of the following actions, within 30 calendar days of 
receiving notice under paragraph (d)(2), with respect to any employee 
who is so convicted--
    (1) Taking appropriate personnel action against such an employee, up 
to and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973, as amended; or
    (2) Requiring such employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency;
    (g) Making a good faith effort to continue to maintain a drug-free 
workplace through implementation of paragraphs (a), (b), (c), (d), (e) 
and (f).
    B. The grantee may insert in the space provided below the site(s) 
for the performance of work done in connection with the specific grant:

Place of Performance (Street address, city, county, state, zip code)
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________

Check {time}  if there are workplaces on file that are not identified 
here.

              Alternate II. (Grantees Who Are Individuals)

    (a) The grantee certifies that, as a condition of the grant, he or 
she will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity with the grant;
    (b) If convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any grant activity, he or she 
will report the conviction, in writing, within 10 calendar days of the 
conviction, to every grant officer or other designee, unless the Federal 
agency designates a central point for the receipt of such notices. When 
notice is made to such a central point, it shall include the 
identification number(s) of each affected grant.

[55 FR 21690, 21701, May 25, 1990]



PART 34--NEW RESTRICTIONS ON LOBBYING--Table of Contents




                           Subpart A--General

Sec.
34.100  Conditions on use of funds.
34.105  Definitions.
34.110  Certification and disclosure.

                 Subpart B--Activities by Own Employees

34.200  Agency and legislative liaison.
34.205  Professional and technical services.
34.210  Reporting.

            Subpart C--Activities by Other Than Own Employees

34.300  Professional and technical services.

                  Subpart D--Penalties and Enforcement

34.400  Penalties.
34.405  Penalty procedures.
34.410  Enforcement.

                          Subpart E--Exemptions

34.500  Secretary of Defense.

                        Subpart F--Agency Reports

34.600  Semi-annual compilation.
34.605  Inspector General report.

Appendix A to Part 34--Certification Regarding Lobbying
Appendix B to Part 34--Disclosure Form to Report Lobbying

    Authority: Section 319; Pub. L. 101-121 (31 U.S.C. 1352); 33 U.S.C. 
1251 et seq.; 42 U.S.C. 7401 et seq.; 42 U.S.C. 6901 et seq.; 42 U.S.C. 
300f et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C. 2601 et seq.; 42 U.S.C. 
9601 et seq.; 20 U.S.C. 4011 et seq.; 33 U.S.C. 1401 et seq.

    Source: 55 FR 6737 and 6753, Feb. 26, 1990 (interim), unless 
otherwise noted.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                           Subpart A--General



Sec. 34.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative

[[Page 392]]

agreement to pay any person for influencing or attempting to influence 
an officer or employee of any agency, a Member of Congress, an officer 
or employee of Congress, or an employee of a Member of Congress in 
connection with any of the following covered Federal actions: the 
awarding of any Federal contract, the making of any Federal grant, the 
making of any Federal loan, the entering into of any cooperative 
agreement, and the extension, continuation, renewal, amendment, or 
modification of any Federal contract, grant, loan, or cooperative 
agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 34.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4

[[Page 393]]

of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 
450B). Alaskan Natives are included under the definitions of Indian 
tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to professional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.

[[Page 394]]



Sec. 34.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

Unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

Shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                 Subpart B--Activities by Own Employees



Sec. 34.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 34.100 
(a), does

[[Page 395]]

not apply in the case of a payment of reasonable compensation made to an 
officer or employee of a person requesting or receiving a Federal 
contract, grant, loan, or cooperative agreement if the payment is for 
agency and legislative liaison activities not directly related to a 
covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 34.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 34.100 
(a), does not apply in the case of a payment of reasonable compensation 
made to an officer or employee of a person requesting or receiving a 
Federal contract, grant, loan, or cooperative agreement or an extension, 
continuation, renewal, amendment, or modification of a Federal contract, 
grant, loan, or cooperative agreement if payment is for professional or 
technical services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission

[[Page 396]]

or negotiation of a covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 34.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C--Activities by Other Than Own Employees



Sec. 34.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 34.100 
(a), does not apply in the case of any reasonable payment to a person, 
other than an officer or employee of a person requesting or receiving a 
covered Federal action, if the payment is for professional or technical 
services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 34.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                  Subpart D--Penalties and Enforcement



Sec. 34.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than

[[Page 397]]

$10,000 and not more than $100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
Appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 34.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803 
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar 
as these provisions are not inconsistent with the requirements herein.



Sec. 34.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E--Exemptions



Sec. 34.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F--Agency Reports



Sec. 34.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see Appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to

[[Page 398]]

the Committee on Foreign Relations of the Senate and the Committee on 
Foreign Affairs of the House of Representatives or the Committees on 
Armed Services of the Senate and the House of Representatives (whichever 
such committees have jurisdiction of matters involving such information) 
and to the Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 34.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

         Appendix A to Part 34--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a

[[Page 399]]

civil penalty of not less than $10,000 and not more than $100,000 for 
each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 400]]

        Appendix B to Part 34--Disclosure Form to Report Lobbying




[[Page 401]]





[[Page 402]]





[[Page 403]]

      



PART 35--STATE AND LOCAL ASSISTANCE--Table of Contents




Sec.
35.001  Applicability.

  Subpart A--Financial Assistance for Continuing Environmental Programs

35.100  Purpose.
35.105  Definitions.
35.110  Summary of annual process.
35.115  State allotments and reserves.
35.120  Planning targets.
35.125  Program guidance.
35.130  Work program.
35.135  Budget period.
35.140  Application for assistance.
35.141  EPA action on application.
35.143  Assistance amount.
35.145  Consolidated assistance.
35.150  Evaluation of recipient performance.
35.155  Reallocation.

                   Air Pollution Control (Section 105)

35.200  Purpose.
35.201  Definitions applicable to section 105.
35.205  Maximum Federal share.
35.210  Maintenance of effort.
35.215  Limitations.

                  Water Pollution Control (Section 106)

35.250  Purpose.
35.255  Maintenance of effort.
35.260  Limitations.
35.265  Awards to Indian Tribes.

                  State Administration (Section 205(G))

35.300  Purpose.
35.305  Maintenance of effort.
35.310  Limitations.

          Water Quality Management Planning (Section 205(J)(2))

35.350  Purpose.
35.355  Maximum Federal share.
35.360  Limitations.
35.365  Awards to Indian Tribes.

            Public Water System Supervision (Section 1443(A))

35.400  Purpose.
35.405  Maximum Federal share.
35.410  Limitations.
35.415  Indian Tribes.

          Underground Water Source Protection (Section 1443(B))

35.450  Purpose.
35.455  Maximum Federal share.
35.460  Limitations.
35.465  Indian Tribes.

                Hazardous Waste Management (Section 3011)

35.500  Purpose.
35.505  Maximum Federal share.
35.510  Limitations.

                Pesticide Enforcement (Section 23(a)(1))

35.550  Purpose.
35.555  Maximum Federal share.

   Pesticide Applicator Certification and Training (Section 23(a)(2))

35.600  Purpose.
35.605  Maximum Federal share.

        Nonpoint Source Management (Sections 205(j)(5) and 319(h)

35.750  Purpose.
35.755  Awards to Indian Tribes.
35.760  Maximum Federal share.

                        Subparts B-D--[Reserved]

 Subpart E--Grants for Construction of Treatment Works--Clean Water Act

35.900  Purpose.
35.901  Program policy.
35.903  Summary of construction grant program.
35.905  Definitions.
35.907  Municipal pretreatment program.
35.908  Innovative and alternative technologies.
35.909  Step 2 + 3 grants.
35.910  Allocation of funds.
35.910-1  Allotments.
35.910-2  Period of availability; reallotment.
35.910-3--35.910-4  [Reserved]
35.910-5  Additional allotments of previously withheld sums.
35.910-6  Fiscal Year 1977 public works allotments.
35.910-7  Fiscal Year 1977 Supplemental Appropriations Act allotments.
35.910-8  Allotments for fiscal years 1978-1981.
35.910-9  Allotment of Fiscal Year 1978 appropriation.
35.910-10  Allotment of Fiscal Year 1979 appropriation.
35.910-11  Allotment of Fiscal Year 1980 appropriation.
35.910-12  Reallotment of deobligated funds of fiscal year 1978.
35.912  Delegation to State agencies.
35.915  State priority system and project priority list.
35.915-1  Reserves related to the project priority list.
35.917  Facilities planning (step 1).
35.917-1  Content of facilities plan.
35.917-2  State responsibilities.
35.917-3  Federal assistance.
35.917-4  Planning scope and detail.
35.917-5  Public participation.

[[Page 404]]

35.917-6  Acceptance by implementing governmental units.
35.917-7  State review and certification of facilities plan.
35.917-8  Submission and approval of facilities plan.
35.917-9  Revision or amendment of facilities plan.
35.918  Individual systems.
35.918-1  Additional limitations on awards for individual systems.
35.918-2  Eligible and ineligible costs.
35.918-3  Requirements for discharge of effluents.
35.920  Grant application.
35.920-1  Eligibility.
35.920-2  Procedure.
35.920-3  Contents of application.
35.925  Limitations on award.
35.925-1  Facilities planning.
35.925-2  Water quality management plans and agencies.
35.925-3  Priority determination.
35.925-4  State allocation.
35.925-5  Funding and other capabilities.
35.925-6  Permits.
35.925-7  Design.
35.925-8  Environmental review.
35.925-9  Civil rights.
35.925-10  Operation and maintenance program.
35.925-11  User charges and industrial cost recovery.
35.925-12  Property.
35.925-13  Sewage collection system.
35.925-14  Compliance with environmental laws.
35.925-15  Treatment of industrial wastes.
35.925-16  Federal activities.
35.925-17  Retained amounts for reconstruction and expansion.
35.925-18  Limitation upon project costs incurred prior to award.
35.925-19  [Reserved]
35.925-20  Procurement.
35.925-21  Storm sewers.
35.926  Value engineering (VE).
35.927  Sewer system evaluation and rehabilitation.
35.927-1  Infiltration/inflow analysis.
35.927-2  Sewer system evaluation survey.
35.927-3  Rehabilitation.
35.927-4  Sewer use ordinance.
35.927-5  Project procedures.
35.928  Requirements for an industrial cost recovery system.
35.928-1  Approval of the industrial cost recovery system.
35.928-2  Use of industrial cost recovery payments.
35.928-3  Implementation of the industrial cost recovery system.
35.928-4  Moratorium on industrial cost recovery payments.
35.929  Requirements for user charge system.
35.929-1  Approval of the user charge system.
35.929-2  General requirements for all user charge systems.
35.929-3  Implementation of the user charge system.
35.930  Award of grant assistance.
35.930-1  Types of projects.
35.930-2  Grant amount.
35.930-3  Grant term.
35.930-4  Project scope.
35.930-5  Federal share.
35.930-6  Limitation on Federal share.
35.935  Grant conditions.
35.935-1  Grantee responsibilities.
35.935-2  Procurement.
35.935-3  Property.
35.935-4  Step 2 + 3 projects.
35.935-5  Davis-Bacon and related statutes.
35.935-6  Equal employment opportunity.
35.935-7  Access.
35.935-8  Supervision.
35.935-9  Project initiation and completion.
35.935-10  Copies of contract documents.
35.935-11  Project changes.
35.935-12  Operation and maintenance.
35.935-13  Submission and approval of user charge systems.
35.935-14  Final inspection.
35.935-15  Submission and approval of industrial cost recovery system.
35.935-16  Sewer use ordinance and evaluation/rehabilitation program.
35.935-17  Training facility.
35.935-18  Value engineering.
35.935-19  Municipal pretreatment program.
35.935-20  Innovative processes and techniques.
35.936  Procurement.
35.936-1  Definitions.
35.936-2  Grantee procurement systems; State or local law.
35.936-3  Competition.
35.936-4  Profits.
35.936-5  Grantee responsibility.
35.936-6  EPA responsibility.
35.936-7  Small and minority business.
35.936-8  Privity of contract.
35.936-9  Disputes.
35.936-10  Federal procurement regulations.
35.936-11  General requirements for subagreements.
35.936-12  Documentation.
35.936-13  Specifications.
35.936-14  Force account work.
35.936-15  Limitations on subagreement award.
35.936-16  Code or standards of conduct.
35.936-17  Fraud and other unlawful or corrupt practices.
35.936-18  Negotiation of subagreements.
35.936-19  Small purchases.
35.936-20  Allowable costs.
35.936-21  Delegation to State agencies; certification of procurement 
          systems.
35.936-22  Bonding and insurance.
35.937  Subagreements for architectural or engineering services.
35.937-1  Type of contract (subagreement).

[[Page 405]]

35.937-2  Public notice.
35.937-3  Evaluation of qualifications.
35.937-4  Solicitation and evaluation of proposals.
35.937-5  Negotiation.
35.937-6  Cost and price considerations.
35.937-7  Profit.
35.937-8  Award of subagreement.
35.937-9  Required solicitation and subagreement provisions.
35.937-10  Subagreement payments--architectural or engineering services.
35.937-11  Applicability to existing contracts.
35.937-12  Subcontracts under subagreements for architectural or 
          engineering services.
35.938  Construction contracts (subagreements) of grantees.
35.938-1  Applicability.
35.938-2  Performance by contract.
35.938-3  Type of contract.
35.938-4  Formal advertising.
35.938-5  Negotiation of contract amendments (change orders).
35.938-6  Progress payments to contractors.
35.938-7  Retention from progress payments.
35.938-8  Required construction contract provisions.
35.938-9  Subcontracts under construction contracts.
35.939  Protests.
35.940  Determination of allowable costs.
35.940-1  Allowable project costs.
35.940-2  Unallowable costs.
35.940-3  Costs allowable, if approved.
35.940-4  Indirect costs.
35.940-5  Disputes concerning allowable costs.
35.945  Grant payments.
35.950  Suspension, termination or annulment of grants.
35.955  Grant amendments to increase grant amounts.
35.960  Disputes.
35.965  Enforcement.
35.970  Contract enforcement.

                         Appendices to Subpart E

Appendix A--Cost-Effectiveness Analysis Guidelines
Appendix B--Federal Guidelines--User Charges For Operation and 
          Maintenance of Publicly Owned Treatment Works
Appendix C-1--Required Provisions--Consulting Engineering Agreements
Appendix C-2--Required Provisions--Construction Contracts
Appendix D--EPA Transition Policy--Existing Consulting Engineering 
          Agreements
Appendix E--Innovative and Alternative Technology Guidelines

                        Subparts F-G--[Reserved]

Subpart H--Cooperative Agreements for Protecting and Restoring Publicly 
                         Owned Freshwater Lakes

35.1600  Purpose.
35.1603  Summary of clean lakes assistance program.
35.1605  Definitions.
35.1605-1  The Act.
35.1605-2  Freshwater lake.
35.1605-3  Publicly owned freshwater lake.
35.1605-4  Nonpoint source.
35.1605-5  Eutrophic lake.
35.1605-6  Trophic condition.
35.1605-7  Desalinization.
35.1605-8  Diagnostic-feasibility study.
35.1605-9  Indian Tribe set forth at 40 CFR 130.6(d).
35.1610  Eligibility.
35.1613  Distribution of funds.
35.1615  Substate agreements.
35.1620  Application requirements.
35.1620-1  Types of assistance.
35.1620-2  Contents of applications.
35.1620-3  Environmental evaluation.
35.1620-4  Public participation.
35.1620-5  State work programs and lake priority lists.
35.1620-6  Intergovernmental review.
35.1630  State lake classification surveys.
35.1640  Application review and evaluation.
35.1640-1  Application review criteria.
35.1650  Award.
35.1650-1  Project period.
35.1650-2  Limitations on awards.
35.1650-3  Conditions on award.
35.1650-4  Payment.
35.1650-5  Allowable costs.
35.1650-6  Reports.

Appendix A to Subpart H--Requirements for Diagnostic-Feasibility Studies 
          and Environmental Evaluations

          Subpart I--Grants for Construction of Treatment Works

35.2000  Purpose and policy.
35.2005  Definitions.
35.2010  Allotment; reallotment.
35.2012  Capitalization grants.
35.2015  State priority system and project priority list.
35.2020  Reserves.
35.2021  Reallotment of reserves.
35.2023  Water quality management planning.
35.2024  Combined sewer overflows.
35.2025  Allowance and advance of allowance.
35.2030  Facilities planning.
35.2032  Innovative and alternative technologies.
35.2034  Privately owned individual systems.
35.2035  Rotating biological contractor (RBC) replacement grants.
35.2036  Design/build project grants.

[[Page 406]]

35.2040  Grant application.
35.2042  Review of grant applications.
35.2050  Effect of approval or certification of documents.
35.2100  Limitations on award.
35.2101  Advanced treatment.
35.2102  Water quality management planning.
35.2103  Priority determination.
35.2104  Funding and other considerations.
35.2105  Debarment and suspension.
35.2106  Plan of operation.
35.2107  Intermunicipal service agreements.
35.2108  Phased or segmented treatment works.
35.2109  Step 2+3.
35.2110  Access to individual systems.
35.2111  Revised water quality standards.
35.2112  Marine discharge waiver applicants.
35.2113  Environmental review.
35.2114  Value engineering.
35.2116  Collection system.
35.2118  Preaward costs.
35.2120  Infiltration/Inflow.
35.2122  Approval of user charge system and proposed sewer use 
          ordinance.
35.2123  Reserve capacity.
35.2125  Treatment of wastewater from industrial users.
35.2127  Federal facilities.
35.2130  Sewer use ordinance.
35.2140  User charge system.
35.2152  Federal share.
35.2200  Grant conditions.
35.2202  Step 2+3 projects.
35.2203  Step 7 projects.
35.2204  Project changes.
35.2205  Maximum allowable project cost.
35.2206  Operation and maintenance.
35.2208  Adoption of sewer use ordinance and user charge system.
35.2210  Land acquisition.
35.2211  Field testing for Innovative and Alternative Technology Report.
35.2212  Project initiation.
35.2214  Grantee responsibilities.
35.2216  Notice of building completion and final inspection.
35.2218  Project performance.
35.2250  Determination of allowable costs.
35.2260  Advance purchase of eligible land.
35.2262  Funding of field testing.
35.2300  Grant payments.
35.2350  Subagreement enforcement.

Appendix A to Subpart I--Determination of Allowable Costs
Appendix B to Subpart I--Allowance for Facilities Planning and Design

       Subpart J--Construction Grants Program Delegation to States

35.3000  Purpose.
35.3005  Policy.
35.3010  Delegation agreement.
35.3015  Extent of State responsibilities.
35.3020  Certification procedures.
35.3025  Overview of State performance under delegation.
35.3030  Right of review of State decision.
35.3035  Public participation.

        Subpart K--State Water Pollution Control Revolving Funds

35.3100  Policy and purpose.
35.3105  Definitions.
35.3110  Fund establishment.
35.3115  Eligible activities of the SRF.
35.3120  Authorized types of assistance.
35.3125  Limitations on SRF assistance.
35.3130  The capitalization grant agreement.
35.3135  Specific capitalization grant agreement requirements.
35.3140  Environmental review requirements.
35.3145  Application of other Federal authorities.
35.3150  Intended Use Plan (IUP).
35.3155  Payments.
35.3160  Cash draw rules.
35.3165  Reports and audits.
35.3170  Corrective action.

Appendix A to Subpart K--Criteria for Evaluating a State's Proposed 
          NEPA-Like Process

                          Subpart L--[Reserved]

               Subpart M--Grants for Technical Assistance

35.4000  Authority.
35.4005  Purpose and availability of referenced material.
35.4010  Definitions.
35.4013  Cost principles.
35.4015  State administration of the program.
35.4020  Responsibility requirements.
35.4025  Eligible applicants.
35.4030  Ineligible applicants.
35.4035  Evaluation criteria.
35.4040  Notification process.
35.4045  Submission of application.
35.4050  Timing of award.
35.4055  Ineligible activities.
35.4060  Eligible activities.
35.4065  Technical advisor's qualifications.
35.4066  Procurement.
35.4067  Contract review.
35.4070  Sanctions.
35.4075  Pre-award costs.
35.4080  Method of payment.
35.4085  Grant limitations.
35.4090  Waivers.
35.4100  Disputes.
35.4105  Record retention and audits.
35.4110  Reports.
35.4115  Availability of information.
35.4120  Budget period.
35.4125  Federal facilities.
35.4130  Conflict of interest and disclosure requirements.

[[Page 407]]

                          Subpart N--[Reserved]

  Subpart O--Cooperative Agreements and Superfund State Contracts for 
                       Superfund Response Actions

                                 General

35.6000  Authority.
35.6005  Purpose and scope.
35.6010  Eligibility.
35.6015  Definitions.
35.6020  Other statutory provisions.
35.6025  Deviation from this subpart.

              Pre-Remedial Response Cooperative Agreements

35.6050  Eligibility for pre-remedial Cooperative Agreements.
35.6055  State-lead pre-remedial Cooperative Agreements.
35.6060  Political subdivision-lead pre-remedial Cooperative Agreements.
35.6070  Indian Tribe-lead pre-remedial Cooperative Agreements.

                Remedial Response Cooperative Agreements

35.6100  Eligibility for remedial Cooperative Agreements.
35.6105  State-lead remedial Cooperative Agreements.
35.6110  Indian Tribe-lead remedial Cooperative Agreements.
35.6115  Political subdivision-lead remedial Cooperative Agreements.
35.6120  Notification of the out-of-State or out-of-Indian Tribal 
          jurisdiction transfer of CERCLA waste.

                   Enforcement Cooperative Agreements

35.6145  Eligibility for enforcement Cooperative Agreements.
35.6150  Activities eligible for funding under enforcement Cooperative 
          Agreements.
35.6155  State, political subdivision or Indian Tribe-lead enforcement 
          Cooperative Agreements.

                 Removal Response Cooperative Agreements

35.6200  Eligibility for removal Cooperative Agreements.
35.6205  Removal Cooperative Agreements.

                   Core Program Cooperative Agreements

35.6215  Eligibility for Core Program Cooperative Agreements.
35.6220  General.
35.6225  Activities eligible for funding under Core Program Cooperative 
          Agreements.
35.6230  Application requirements.
35.6235  Cost sharing.

                  Support Agency Cooperative Agreements

35.6240  Eligibility for support agency Cooperative Agreements.
35.6245  Allowable activities.
35.6250  Support agency Cooperative Agreement requirements.
35.6255  Cost sharing.

   Financial Administration Requirements Under a Cooperative Agreement

35.6270  Standards for financial management systems.
35.6275  Period of availability of funds.
35.6280  Payments.
35.6285  Recipient payment of response costs.
35.6290  Program income.

      Personal Property Requirements Under a Cooperative Agreement

35.6300  General personal property acquisition and use requirements.
35.6305  Obtaining supplies.
35.6310  Obtaining equipment.
35.6315  Alternative methods for obtaining property.
35.6320  Usage rate.
35.6325  Title and EPA interest in CERCLA-funded property.
35.6330  Title to federally owned property.
35.6335  Property management standards.
35.6340  Disposal of CERCLA-funded property.
35.6345  Equipment disposal options.
35.6350  Disposal of federally owned property.

        Real Property Requirements Under a Cooperative Agreement

35.6400  Acquisition and transfer of interest.
35.6405  Use.

          Copyright Requirements Under a Cooperative Agreement

35.6450  General requirements.

   Use of Recipient Employees (``Force Account'') Under a Cooperative 
                                Agreement

35.6500  General requirements.

         Procurement Requirements Under a Cooperative Agreement

35.6550  Procurement system standards.
35.6555  Competition.
35.6560  Master list of debarred, suspended, and voluntarily excluded 
          persons.
35.6565  Procurement methods.
35.6570  Use of the same engineer during subsequent phases of response.
35.6575  Restrictions on types of contracts.
35.6580  Contracting with minority and women's business enterprises 
          (MBE/WBE), small businesses, and labor surplus area firms.
35.6585  Cost and price analysis.
35.6590  Bonding and insurance.

[[Page 408]]

35.6595  Contract provisions.
35.6600  Contractor claims.
35.6605  Privity of contract.
35.6610  Contracts awarded by a contractor.

             Reports Required Under a Cooperative Agreement

35.6650  Quarterly progress reports.
35.6655  Notification of significant developments.
35.6660  Property inventory reports.
35.6665  Procurement reports.
35.6670  Financial reports.

           Records Requirements Under a Cooperative Agreement

35.6700  Project records.
35.6705  Records retention.
35.6710  Records access.

      Other Administrative Requirements for Cooperative Agreements

35.6750  Modifications.
35.6755  Monitoring program performance.
35.6760  Enforcement and termination for convenience.
35.6765  Non-Federal audit.
35.6770  Disputes.
35.6775  Exclusion of third-party benefits.
35.6780  Closeout.
35.6785  Collection of amounts due.
35.6790  High risk recipients.

     Requirements for Administering a Superfund State Contract (SSC)

35.6800  General.
35.6805  Contents of an SSC.
35.6815  Administrative requirements.
35.6820  Conclusion of the SSC.

    Subpart P--Financial Assistance for the National Estuary Program

35.9000  Applicability.
35.9005  Purpose.
35.9010  Definitions.
35.9015  Summary of annual process.
35.9020  Planning targets.
35.9030  Work program.
35.9035  Budget period.
35.9040  Application for assistance.
35.9045  EPA action on application.
35.9050  Assistance amount.
35.9055  Evaluation of recipient performance.
35.9060  Maximum Federal share.
35.9065  Limitations.
35.9070  National program assistance agreements.

          Subpart Q--General Assistance Grants to Indian Tribes

35.10000  Authority.
35.10005  Purpose and scope.
35.10010  Definitions.
35.10015  Eligible recipients.
35.10020  Eligible activities.
35.10025  Limitations.
35.10030  Grant management.
35.10035  Procurement under general assistance agreements.

    Authority: 42 U.S.C. 4368b.



Sec. 35.001  Applicability.

    This part codifies policies and procedures for financial assistance 
awarded by the Environmental Protection Agency to State, interstate, and 
local agencies for pollution abatement and control programs. These 
provisions supplement the EPA general assistance regulations in 40 CFR 
part 30.

[47 FR 44954, Oct. 12, 1982]



Part A--Financial Assistance for Continuing Environmental Programs--Table of Contents




    Authority: Secs. 105 and 301(a) of the Clean Air Act, as amended (42 
U.S.C. 7405 and 7601(a)); Secs. 106, 205(g), 205(j), 208, 319, 501(a), 
and 518 of the Clean Water Act, as amended (33 U.S.C. 1256, 1285(g), 
1285(j), 1288, 1361(a) and 1377); secs. 1443, 1450, and 1451 of the Safe 
Drinking Water Act (42 U.S.C. 300j-2, 300j-9 and 300j-11); secs. 2002(a) 
and 3011 of the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act of 1976 (42 U.S.C. 6912(a), 6931, 6947, 
and 6949); and secs. 4, 23, and 25(a) of the Federal Insecticide, 
Fungicide and Rodenticide Act, as amended (7 U.S.C. 136(b), 136(u) and 
136w(a)).

    Source: 47 FR 44954, Oct. 12, 1982, unless otherwise noted.



Sec. 35.100  Purpose.

    This subpart establishes in Sec. Sec. 35.100 through 35.199 uniform 
administrative requirements and procedures for financial assistance to 
State, interstate, and local agencies for continuing environmental 
programs. Sections 35.200 through 35.899 establish the assistance 
requirements unique to each program and cross reference regulations 
containing substantive program requirements.



Sec. 35.105  Definitions.

    Allotment. An amount representing a State's share of funds requested 
in the President's budget or appropriated by

[[Page 409]]

Congress for an environmental program, as EPA determines after 
considering any factors indicated by this regulation. The allotment is 
not an entitlement but rather the objective basis for determining the 
range for a State's planning target.
    Continuation award. Any assistance award after the first award to a 
State, interstate, or local agency for a continuing environmental 
program.
    Continuing environmental programs. Those pollution control programs 
which will not be completed within a definable time period.
    Eligible Indian Tribe means for purposes of the Clean Water Act, any 
federally recognized Indian Tribe that meets the requirements set forth 
at 40 CFR 130.6(d).
    Federal Indian reservation means for purposes of Clean Water Act, 
all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation.
    Indian Tribe means, within the context of the Public Water System 
Supervision and Underground Water Source Protection grants, any Indian 
Tribe having a Federally recognized governing body carrying out 
substantial governmental duties and powers over a defined area.
    Indian Tribe means for purposes of the Clean Water Act, any Indian 
Tribe, band, group, or community recognized by the Secretary of the 
Interior and exercising governmental authority over a Federal Indian 
reservation.
    Output. An activity or product which the applicant agrees to 
complete during the budget period.
    Planning target. The amount of Federal financial assistance which 
the Regional Administrator suggests that an applicant consider in 
developing its application and work program.
    Program element. One of the major groupings of outputs of a 
continuing environmental program (e.g., administration, enforcement, 
monitoring).
    Recurrent expenditures, except for the purposes of section 105 of 
the Clean Air Act (See Sec. 35.201), means those expenditures associated 
with the activities of a continuing environmental program. All 
expenditures, except those for equipment purchases with a unit 
acquisition cost of $5,000 or more, are considered recurrent unless 
justified by the applicant as unique and approved as such by the 
Regional Administrator in the assistance award.
    Reserve. A portion of the State's construction grant allotment which 
the State proposes to set aside to use for construction or permit 
program management or water quality management planning activities.
    State means within the context of Public Water Systems Supervision 
and Underground Water Source Protection grants or of financial 
assistance programs under the Clean Water Act, one of the States of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the 
Northern Mariana Islands, the Trust Territories of the Pacific Islands 
or an eligible Indian Tribe.
    Work program. The document which identifies how and when the 
applicant will use program funds to produce specific outputs.

[47 FR 44954, Oct. 12, 1982, as amended at 53 FR 37408, Sept. 26, 1988; 
54 FR 14357, Apr. 11, 1989; 59 FR 13817, Mar. 23, 1994; 60 FR 371, Jan. 
4, 1995]



Sec. 35.110  Summary of annual process.

    (a) EPA considers various factors to allot among the States the 
funds requested in the President's budget for each financial assistance 
program, except for those related to construction grants, for which 
Congress determines the allotments. From its construction grant 
allotment, the State proposes reserves for State administration and 
water quality management planning. The Regional Administrator issues a 
planning target for each program to each applicant based on the reserves 
and allotments.
    (b) Using the planning target and guidance provided by EPA, each 
applicant completes a standard EPA application including a proposed work 
program for each environmental program for which it expects to receive 
EPA funding. Alternatively, an applicant prepares a consolidated work 
program

[[Page 410]]

to support several individual applications or a single consolidated 
application. After the applicant submits its application, the Regional 
Administrator reviews it and, if it meets applicable requirements, 
approves the application and agrees to make an award when funds are 
available. The Regional Administrator awards assistance from funds 
appropriated by Congress for that purpose.
    (c) The recipient conducts its activities according to the approved 
application and assistance award. The Regional Administrator evaluates 
recipient performance to assure compliance with all conditions of the 
assistance award.
    (d) Except for funds reserved under section 205 (g) and (j) of the 
Clean Water Act, the Administrator or Regional Administrator may use 
funds not awarded or committed to an applicant to supplement awards to 
other applicants for that program or to support a Federal program 
required in the absence of an acceptable State program.



Sec. 35.115  State allotments and reserves.

    Allotments and reserves provide an objective basis for establishing 
planning targets and funding levels for work programs. Congress 
determines the construction grant allotment, from which the State 
proposes reserves for State administration and water quality management 
planning. EPA determines the allotments for the other financial 
assistance programs based on the President's budget request to Congress. 
The factors and limitations considered for each program are as follows:
    (a) Air pollution control allotment (Clean Air Act, section 105): 
Population, the extent of actual or potential air pollution problems, 
and the financial need of each agency to be funded with the State's 
allotment. However, no state shall have made available to it for 
application an allotment of less than one-half of 1 percent nor more 
than 10 percent of the annual appropriation for section 105 grants.
    (b) Water pollution control allotment including ground-water 
protection allotments (Clean Water Act, section 106): The extent of the 
State's water pollution problem. In each fiscal year, the Administrator 
will reserve a percentage of the total available funds for eligible 
Indian Tribes,
    (c) State administration reserve (Clean Water Act, section 205(g)): 
Up to four percent of the State's authorized construction grant 
allotment as determined by Congress or $400,000, whichever is greater.
    (d) Water quality management planning reserve (Clean Water Act, 
section 205(j)(1)): Not less than $100,000 nor more than one percent of 
the State's construction grant allotment as determined by Congress. 
However, for Guam, the Virgin Islands, American Samoa, the Trust 
Territories of the Pacific Islands and the Northern Marina Islands, a 
reasonable amount shall be reserved for this purpose. Each fiscal year 
the Administrator may reserve a percentage of the sums appropriated 
under section 207 for water quality management planning assistance to 
eligible Indian Tribes,
    (e) Public Water System Supervision Allotment (Safe Drinking Water 
Act, section 1443(a)): The State's population, geographic area, numbers 
of community and non-community water systems, and other relevant 
factors. However, no State, except American Samoa, Guam, the Northern 
Mariana Islands, the Virgin Islands, or the Trust Territory of the 
Pacific Islands may be allotted less than one percent of the total, 
except that for fiscal years beginning after fiscal year 1989, to the 
extent that fiscal year appropriations exceed the amount of fiscal year 
1989 appropriations, States shall share in any excess based upon the 
grant formula in effect for such fiscal years.
    (f) Ground-water Quality Protection Reserve (Clean Water Act, 
section 319(i)): Each fiscal year the Administrator may reserve for 
eligible Indian Tribes one-third of one percent of the amount 
appropriated under section 319(j) for 319(h) and (i).
    (g) Public Water System Supervision allotment (Safe Drinking Water 
Act, section 1443(a)): Population, geographic area, numbers of community 
and noncommunity water systems and other relevant factors. All 
jurisdictions except American Samoa, Guam, the Northern Mariana Islands, 
the Virgin Islands or an individual eligible Indian

[[Page 411]]

Tribe shall be allotted at least one percent. Up to three percent of the 
Public Water System Supervision funds shall be reserved each year for 
use on Indian lands.
    (h) Underground Water Source Protection allotment (Safe Drinking 
Water Act, section 1443(b)): Population, geographic area, extent of 
underground injection practices, and other relevant factors. Up to five 
percent of the Underground Water Source Protection funds shall be 
reserved each year for use on Indian lands.
    (i) Hazardous waste management allotment (Solid Waste Disposal Act, 
as amended, section 3011): The extent to which hazardous waste is 
generated, transported, treated, stored, and disposed of in the State 
and the extent of exposure of human beings and the environment to such 
waste, and such other factors as the Administrator deems appropriate.
    (j) Pesticide enforcement allotment (Federal Insecticide, Fungicide, 
and Rodenticide Act, section 23): The State's population, the numbers of 
pesticide-producing establishments and certified private and commercial 
applicators, and the number of farms and their acreage.
    (k) Pesticide applicator certification and training allotment 
(Federal Insecticide, Fungicide, and Rodenticide Act, section 23): The 
number of farms and numbers of private and commercial applicators 
requiring certification or recertification.

[47 FR 44954, Oct. 12, 1982, as amended at 54 FR 14357, Apr. 11, 1989; 
54 FR 40368, Sept. 29, 1989; 57 FR 8074, Mar. 6, 1992; 59 FR 13817, Mar. 
23, 1994; 60 FR 371, Jan. 4, 1995]



Sec. 35.120  Planning targets.

    The Regional Administrator develops planning targets to help each 
applicant develop a work program. A planning target is the State's 
reserve or is based on the State's allotment and the Regional 
Administrator's evaluation of each applicant's ability to use allotted 
funds effectively.



Sec. 35.125  Program guidance.

    Program guidance helps State and local agencies establish and 
maintain effective environmental programs which meet their particular 
needs and those of the national program. National program managers in 
Headquarters issue guidance to Regional Administrators, and Regional 
Administrators issue guidance to applicants.
    (a) Headquarters guidance to Regional Administrators. Headquarters 
guidance is based on the President's annual budget submission to 
Congress and the statutory and regulatory requirements for each 
environmental program. The guidance contains a statement of national 
objectives and priorities, an explanation of the activities required of 
the regions, and a list of program elements and associated outputs 
recommended for State and local environmental programs.
    (b) Regional guidance to applicants. Regional guidance is based on 
Headquarters guidance and the Regional Administrator's knowledge of 
environmental problems in each State in his region and evaluation of 
each applicant's ability to carry out the program. The guidance contains 
EPA's objectives and priorities, the applicant's planning target, the 
program elements EPA uses for budget justification and management, 
categories of outputs which should be part of the applicant's work 
program, and special conditions or limitations relevant to the 
applicant.



Sec. 35.130  Work program.

    The work program is part of the application for financial assistance 
and is the basis for the management and evaluation of performance under 
the assistance award. The work program must specify the work years and 
amount and source of funding estimated to be needed for each program 
element, the outputs committed to under each program element, including 
any outputs required under an authorization or delegation agreement, a 
schedule for accomplishment of outputs, and an identification of the 
agency responsible for each of the elements and outputs.



Sec. 35.135  Budget period.

    An applicant may choose its budget period in consultation with and 
subject to the approval of the Regional Administrator.

[[Page 412]]



Sec. 35.140  Application for assistance.

    Each applicant should submit a complete application at least 60 days 
before the beginning of the budget period. In addition to meeting the 
requirements contained in part 30, a complete application must contain a 
discussion of performance to date under the existing award, the proposed 
work program, and a list of all applicable EPA-approved State 
strategies, program plans, and delegation or authorization agreements 
with a statement certifying that the proposed work program is consistent 
with them.



Sec. 35.141  EPA action on application.

    The Regional Administrator will review each completed application 
and should approve, conditionally approve, or disapprove it within 60 
days of receipt. When funds are available, the Regional Administrator 
will award assistance based on an approved or conditionally approved 
application. For a continuation award made after the beginning of the 
approved budget period, EPA will reimburse the applicant for allowable 
costs incurred from the beginning of the budget period, provided that 
such costs are contained in the approved application and that the 
application was submitted before the expiration of the prior budget 
period.
    (a) Approval. The Regional Administrator will approve the 
application only if it satisfies the terms, conditions, and limitations 
of this subpart, 40 CFR part 30, and relevant statutes and program 
regulations; if the proposed outputs are consistent with EPA guidance or 
otherwise demonstrated to be necessary and appropriate; and if 
achievement of the proposed outputs is feasible, considering the 
applicant's existing problems, past performance, program authority, 
organization, resources, and procedures.
    (b) Conditional approval. The Regional Administrator may 
conditionally approve the application, after consulting with the 
applicant, if only minor changes are required. The Regional 
Administrator will include in the award the conditions which the 
applicant must meet to secure final approval and the date by which those 
conditions must be met.
    (c) Disapproval. If the application cannot be approved or 
conditionally approved, the Regional Administrator will negotiate with 
the applicant to change the output commitments, to reduce the assistance 
amount, or to make any other changes necessary for approval. If 
negotiation fails, the Regional Administrator will disapprove the 
application in writing.



Sec. 35.143  Assistance amount.

    (a) Determining the assistance amount. In determining the amount of 
assistance to an applicant, the Regional Administrator will consider the 
State's planning target, the extent to which the applicant's work 
program is consistent with EPA guidance, and the anticipated cost of the 
applicant's program relative to the proposed outputs.
    (b) Reduction of assistance amount. If the Regional Administrator's 
evaluation of the applicant's work program indicates that the proposed 
outputs do not justify the level of funding requested, the Regional 
Administrator will reduce the assistance amount. If the evaluation 
indicates that the proposed outputs are not consistent with the 
priorities contained in EPA guidance, the Regional Administrator may 
reduce the assistance amount.



Sec. 35.145  Consolidated assistance.

    Any applicant eligible to receive and administer funds from more 
than one assistance program may submit an application for consolidated 
assistance, following the process described in Sec. 35.140. For 
consolidated assistance, the applicant prepares a single budget and work 
program covering all programs included in the application. The 
consolidated budget must identify each assistance program's funds. The 
consolidated work program must identify the extent to which each 
assistance program's funds support each program element. Insular Areas 
which choose to consolidate program assistance may be exempted from 
requirements of this subpart in accordance with Title V of Pub. L. 95-
134.



Sec. 35.150  Evaluation of recipient performance.

    The Regional Administrator will oversee each recipient's performance

[[Page 413]]

under an assistance agreement. In consultation with the applicant, the 
Regional Administrator will develop a process for evaluating the 
recipient's performance. The Regional Administrator will include the 
schedule for evaluation in the assistance agreement and will evaluate 
recipient performance and progress toward completing the outputs in the 
approved work program according to the schedule. The Regional 
Administrator will provide the evaluation findings to the recipient and 
will include them in the official assistance file. If the evaluation 
reveals that the recipient is not achieving one or more of the 
conditions of the assistance agreement, the Regional Administrator will 
attempt to resolve the situation through negotiation. If agreement is 
not reached, the Regional Administrator may impose any of the sanctions 
in 40 CFR part 30.



Sec. 35.155  Reallocation.

    EPA has responsibility and authority for managing all financial 
assistance funds effectively. To better achieve the goals of the Clean 
Water Act, 205(g) reserves which have not been awarded will be returned 
to the State's construction grant allotment to support eligible 
construction activities except as provided in paragraph (c) of this 
section; 205(j) reserves which have not been awarded during the period 
of availability to the State will be reallotted to other States as 
construction grant funds. These funds are administered under 
Sec. 35.2010 of this subchapter and are not available for reallocation 
under this section. For the other environmental programs, EPA will 
consider reallocating any unawarded funds to achieve the objectives for 
which Congress appropriated them.
    (a) Funds remaining after initial award. Funds remaining in a 
State's allotment after an initial assistance award and commitment to 
that State for that year may be awarded by the Regional Administrator to 
any eligible applicant during the Federal fiscal year. At the end of the 
year, funds not awarded by the Regional Administrator will be 
reallocated by the Administrator to accomplish the objectives of that 
program.
    (1) The Regional Administrator may use such funds to make 
supplementary awards to that State for that program.
    (2) Subject to any limitations contained in appropriations acts, the 
Regional Administrator may use such funds to support a Federal program 
required by law in that State in the absence of an acceptable State 
program.
    (3) The Regional Administrator may also use such funds to supplement 
awards for that program to other eligible applicants within the Region.
    (b) Funds available because of no award. Funds remaining in a 
State's allotment because there is no assistance award to that State in 
that year may be used in two ways.
    (1) First, subject to any limitations contained in appropriations 
acts, the Regional Administrator may use such funds to support a Federal 
program required by law in that State in the absence of an acceptable 
State program.
    (2) Otherwise, the Administrator will reallocate any available 
program funds to accomplish the objectives of that program.
    (c) Public Water System Supervision and Underground Water Source 
Protection funds reserved for use on Indian lands which are not awarded 
to specific Indian Tribes by February 1 of a fiscal year, may be 
reallocated by the Administrator for supplementary awards to eligible 
Indian Tribes or to EPA regions for purposes of direct implementation on 
Indian lands.
    (d) Beginning in FY 1990, on July 1 of each fiscal year, funds 
reserved under sections 106, 205(j)(1), 205(j)(5), and 319 of the Clean 
Water Act for eligible Indian Tribes, which have not been awarded by the 
Regional Administrator, shall be reallocated nationally by the 
Administrator for awards to other eligible Indian Tribes. Section 319 
and 205(j)(5) funds awarded to an Indian Tribe treated as a State in a 
fiscal year which are not obligated by the end of the fiscal year shall 
be available to the Administrator for reallocation to other such Tribes 
in the following fiscal year.

[47 FR 44954, Oct. 12, 1982, as amended at 53 FR 37409, Sept. 26, 1988; 
54 FR 14358, Apr. 11, 1989; 59 FR 13817, Mar. 23, 1994; 60 FR 2881, Jan. 
12, 1995]

[[Page 414]]

                   Air Pollution Control (Section 105)



Sec. 35.200  Purpose.

    Section 105 of the Clean Air Act authorizes assistance to State, 
local, interstate, or intermunicipal air pollution control agencies (as 
defined in section 302(b) of the Act) to administer programs for the 
prevention and control of air pollution or implementation of national 
air quality standards. Associated program regulations are found in 40 
CFR parts 50, 51, 52, 58, 60, 61, 62, and 81.



Sec. 35.201   Definitions applicable to section 105.

    For purposes of section 105 of the Clean Air Act the following 
definitions are to be used in addition to the definitions in 
Sec. 35.105; except that the definition of ``Recurrent expenditures'' 
has the meaning set forth below:
    Implementing means, within the context of section 105 of the Clean 
Air Act, as amended, any activity related to planning, developing, 
establishing, carrying-out, improving, or maintaining programs for the 
prevention and control of air pollution or implementation of national 
primary and secondary ambient air quality standards.
    Nonrecurrent expenditures means those expenditures which are shown 
by the recipient to be of a nonrepetitive, unusual, or singular nature 
such as would not reasonably be expected to recur in the foreseeable 
future. Costs categorized as nonrecurrent must be approved in the 
assistance agreement or an amendment thereto. All other approved project 
costs are deemed to be recurrent.
    Recurrent expenditures means those expenses associated with the 
activities of a continuing environmental program. All expenditures are 
considered recurrent unless justified by the applicant as nonrecurrent 
and approved in the assistance award or an amendment thereto.

[60 FR 371, Jan. 4, 1995]



Sec. 35.205   Maximum Federal share.

    (a) The Regional Administrator may provide state, local, interstate, 
or intermunicipal agencies up to three-fifths of the approved costs of 
implementing programs for the prevention and control of air pollution or 
implementing national primary and secondary ambient air quality 
standards. Air pollution control agencies currently receiving grants and 
contributing less than the required minimum of two-fifths of the 
approved program costs shall have until November 15, 1993 to increase 
their contribution to the required level.
    (b) Subject to the conditions set forth below, the Regional 
Administrator may, at the request of the Governor of a State or the 
Governor's designee, or in the case of a local jurisdiction, the 
authorized local official, waive, for a 1-year period, all or a portion 
of the cost-sharing requirement of paragraph (a) of this section. The 
Regional Administrator may renew the waiver for no more than 2 years so 
long as the total waiver period does not exceed 3 years from the 
approval date of a state's permit program required under section 502 of 
the Clean Air Act (Act).
    (1) The waiver may be approved on a case-by-case basis and only when 
a state or local government's nonfederal contribution is reduced below 
the required two-fifths minimum as a result of the redirection of its 
nonfederal air resources to meet the requirements of section 502(b) of 
the Act.
    (2) In applying for a waiver the Governor or the Governor's 
designee, or in the case of a local jurisdiction, the authorized local 
official, must:
    (i) Describe the extent of fiscal and programmatic impact on the 
agency's section 105 program as a result of the transfer of nonfederal 
resources to support the program approved by EPA under section 502(b) of 
the Act.
    (ii) Provide documentation of the amount of the cost-sharing 
shortfall and the programmatic activities that would not be able to be 
carried out if the section 105 grant is reduced or not awarded as a 
result of a state or local air pollution control agency's inability to 
meet the cost-sharing requirements.
    (iii) Assure that there is no source of funding that may reasonably 
be used to meet the cost-sharing requirement for the affected grant 
budget period; and
    (iv) Assure that during the section 105 grant period the non-federal 
share

[[Page 415]]

of the program costs will not be reduced in an amount greater than that 
authorized by the waiver.

[60 FR 371, Jan. 4, 1995]



Sec. 35.210  Maintenance of effort.

    (a) To receive funds under section 105, an agency must expend 
annually for recurrent section 105 program expenditures an amount of 
non-Federal funds at least equal to such expenditures during the 
preceding fiscal year, unless the Regional Administrator, after notice 
and opportunity for a public hearing, determines that the reduction is 
attributable to a non-selective reduction of the programs of all 
executive branch agencies of the applicable unit of government. In order 
for the Regional Administrator to award grants in a timely manner each 
fiscal year, the Regional Administrator shall compare an agency's 
proposed expenditure level, as detailed in the agency's application for 
grant assistance, to that agency's expenditure level in the second 
preceding fiscal year.
    (b) The Regional Administrator will not award section 105 funds 
unless the applicant provides assurance that the assistance will not 
supplant non-Federal funds that would otherwise be available for 
maintaining the section 105 program.

[47 FR 44954, Oct. 12, 1982, as amended at 60 FR 372, Jan. 4, 1995]



Sec. 35.215  Limitations.

    (a) The Regional Administrator will not award section 105 funds to 
an interstate or intermunicipal agency which does not provide assurance 
that it can develop a comprehensive plan for the air quality control 
region which includes representation of appropriate State, interstate, 
local, and international interests.
    (b) The Regional Administrator will not award section 105 funds to a 
local, interstate, or intermunicipal agency without consulting with the 
appropriate official designated by the Governor or Governors of the 
State or States affected.
    (c) The Regional Administrator will not disapprove an application 
for or terminate or annul an award of section 105 funds without prior 
notice and opportunity for a public hearing in the affected State or in 
one of the affected States if several are affected.

                  Water Pollution Control (Section 106)



Sec. 35.250  Purpose.

    Sections 106 and 518 of the Clean Water Act authorize assistance to 
State and interstate agencies (as defined in section 502 of the Act) and 
to eligible Indian Tribes to administer programs for the prevention, 
reduction, and elimination of water pollution, including programs for 
the development and implementation of ground-water protection 
strategies. Some of these activities may be eligible for funding under 
section 205 (g) and (j) of that Act. (See Sec. Sec. 35.300 and 35.350.) 
Program requirements for water quality planning and management 
activities are provided in 40 CFR part 35, subpart G.

[47 FR 44954, Oct. 12, 1982, as amended at 54 FR 14358, Apr. 11, 1989; 
59 FR 13817, Mar. 23, 1994



Sec. 35.255  Maintenance of effort.

    (a) To receive funds under section 106, any State or interstate 
agency must expend annually for recurrent section 106 program 
expenditures an amount of non-Federal funds at least equal to 
expenditures during the fiscal year ending June 30, 1971.
    (b) The maintenance of effort requirement in paragraph (a) of this 
section shall not apply to eligible Indian Tribes.

[54 FR 14358, Apr. 11, 1989, as amended at 59 FR 13817, Mar. 23, 1994]



Sec. 35.260  Limitations.

    (a) The Regional Administrator will not award section 106 funds to 
any State which does not monitor and compile, analyze, and report water 
quality data as described in section 106(e)(1) of the Clean Water Act. 
The Regional Administrator may award section 106 funds to eligible 
Indian Tribes even if they do not meet this requirement. However, all 
monitoring and analysis activities performed by a Tribe must meet the 
applicable quality assurance, quality control requirements as specified 
in 40 CFR part 31.

[[Page 416]]

    (b) The Regional Administrator will not award section 106 funds to 
any State, including any eligible Indian Tribe, which does not have 
authority comparable to that in section 504 of the Clean Water Act and 
adequate contingency plans to implement such authority.
    (c) The Regional Administrator will not award section 106 funds if 
federally assumed enforcement as defined in section 309(a)(2) of the 
Clean Water Act is in effect with respect to the agency.
    (d) The Regional Administrator will not award section 106 funds 
unless the work program submitted with the assistance application shows 
that the activities to be funded are coordinated, as appropriate, with 
activities proposed for funding under section 205 (g) and (j) of the 
Clean Water Act.

[47 FR 44954, Oct. 12, 1982, as amended at 54 FR 14358, Apr. 11, 1989; 
59 FR 13817, Mar. 23, 1994



Sec. 35.265  Awards to Indian Tribes.

    (a) The Regional Administrator will not award section 106 funds to 
an Indian Tribe unless EPA has determined that the Indian Tribe meets 
the requirements set forth at 40 CFR 130.6(d) as well as the applicable 
limitations in 40 CFR 35.260.
    (b) The Regional Administrator will not give a continuation award to 
any Indian Tribe unless the Tribe shows satisfactory progress in meeting 
its negotiated milestones and goals.

[54 FR 14358, Apr. 11, 1989, as amended at 59 FR 13817, Mar. 23, 1994]

                  State Administration (Section 205(g))



Sec. 35.300  Purpose.

    Section 205(g) of the Clean Water Act authorizes assistance to 
States (as defined in section 502 of the Act) for two purposes.
    (a) Construction management assistance. The 205(g) funds may be used 
for administering elements of the construction grant program under 
sections 201, 203, 204, and 212 of the Clean Water Act and for managing 
waste treatment construction grants for small communities. Construction 
management assistance funds may also be used for administering elements 
of a State's construction grant program which are implemented without 
Federal assistance, if the Regional Administrator determines that those 
elements are consistent with 40 CFR part 35, subpart I. Program 
requirements for State construction management activities under 
delegation are provided in 40 CFR part 35, subparts F and I.
    (b) Permit and planning assistance. The 205(g) funds may be used for 
administering permit programs under sections 402 and 404 and for 
administering statewide waste treatment management planning programs 
under section 208(b)(4) of the Clean Water Act. Some of these activities 
may be eligible for funding under sections 106 and 205(j) of that Act. 
(See Sec. Sec. 35.250 and 35.350.) Program requirements for water 
quality management activities are provided in 40 CFR part 35, subpart G.



Sec. 35.305  Maintenance of effort.

    To receive funds under section 205(g), a State agency must expend 
annually for recurrent section 106 program expenditures an amount of 
non-Federal funds at least equal to such expenditures during fiscal year 
1977, unless the Regional Administrator determines that the reduction is 
attributable to a non-selective reduction of expenditures in State 
executive branch agencies.



Sec. 35.310  Limitations.

    (a) The Regional Administrator will not award section 205(g) funds 
for construction management assistance unless there is a signed 
agreement delegating responsibility for administration of those 
activities to the State.
    (b) The Regional Administrator will not award section 205(g) permit 
and planning assistance before awarding funds which provide for the 
management of a substantial portion of construction grants program. The 
maximum amount of permit and planning assistance a State may receive is 
the amount remaining in its reserve after the Regional Administrator 
allows for full funding of the management of the construction grant 
program under full delegation.
    (c) The Regional Administrator will not award section 205(g) permit 
and planning assistance unless the work program submitted with the 
assistance application shows that the activities to

[[Page 417]]

be funded are coordinated, as appropriate, with activities proposed for 
funding under sections 106 and 205(j) of the Clean Water Act.

          Water Quality Management Planning (Section 205(j)(2))



Sec. 35.350  Purpose.

    Sections 205(j)(2) and 518 of the Clean Water Act authorize 
assistance to States (as defined in section 502 of the Act) and to 
eligible Indian Tribes to carry out water quality management planning 
activities. Some of these activities may be eligible for funding under 
sections 106 and 205(g) of that Act. (See Sec. Sec. 35.250 and 35.300.) 
Program requirements for water quality management activities are 
provided in 40 CFR part 35, subpart G. The purpose of 205(j) funds 
includes, but is not limited to, the following.
    (a) Identification of the most cost-effective and locally acceptable 
facility and nonpoint measures to meet and maintain water quality 
standards.
    (b) Development of an implementation plan to obtain State and local 
financial and regulatory commitments to implement measures developed 
under paragraph (a) of this section.
    (c) Determination of the nature, extent, and causes of water quality 
problems in various areas of the State and interstate region.
    (d) Determination of those publicly owned treatment works which 
should be constructed with Federal assistance, in which areas and in 
what sequence, taking into account the relative degree of effluent 
reduction attained, the relative contributions to water quality of other 
point or nonpoint sources, and the consideration of alternatives to such 
construction.
    (e) Implementation of section 303(e) of the Clean Water Act.

[47 FR 44954, Oct. 12, 1982, as amended at 54 FR 14358, Apr. 11, 1989; 
59 FR 13817, Mar. 23, 1994]



Sec. 35.355  Maximum Federal share.

    The Regional Administrator may provide up to one hundred percent of 
the approved work program costs.



Sec. 35.360  Limitations.

    (a) The Regional Administrator will not award section 205(j)(1) 
funds to a State agency unless the agency develops its work program 
jointly with local, regional, and interstate agencies and gives funding 
priority to such agencies and designated or undesignated public 
comprehensive planning organizations to carry out portions of that work 
program.
    (b) The Regional Administrator will not award section 205(j)(1) 
funds to a State agency which does not report annually on the nature, 
extent, and causes of water quality problems in various areas of the 
State and interstate region.
    (c) The Regional Administrator will not award section 205(j)(1) 
funds unless the work program submitted with the assistance application 
shows that the activities to be funded are coordinated, as appropriate, 
with activities proposed for funding under sections 106 and 205(g) of 
the Clean Water Act.

[47 FR 44954, Oct. 12, 1982, as amended at 54 FR 14358, Apr. 11, 1989]



Sec. 35.365  Awards to Indian Tribes.

    (a)(1) The Regional Administrator will not award section 205(j)(1) 
funds to an Indian Tribe unless the Tribe meets the requirements set 
forth at 40 CFR 130.6(d), as well as the applicable limitations in 40 
CFR 35.360.
    (2) [Reserved]
    (b) The Regional Administrator will not give a continuation award to 
any Indian Tribe unless the Tribe shows satisfactory progress in meeting 
its negotiated milestones and goals.

[54 FR 14358, Apr. 11, 1989, as amended at 59 FR 13817, Mar. 23, 1994]

            Public Water System Supervision (Section 1443(a))



Sec. 35.400  Purpose.

    Sections 1443(a) and 1451(a)(3) of the Safe Drinking Water Act 
authorize assistance to States and eligible Indian Tribes under Public 
Water System Supervision Programs. Associated program regulations are 
found in 40 CFR parts 141, 142, and 143.

[53 FR 37409, Sept. 26, 1988, as amended at 59 FR 13817, Mar. 23, 1994]

[[Page 418]]



Sec. 35.405  Maximum Federal share.

    (a) The Regional Administrator may provide up to seventy-five 
percent of the approved work program costs.
    (b) The Regional Administrator may increase the 75 percent maximum 
Federal share for an Indian Tribe based upon application and 
demonstration by the Tribe that it does not have adequate funds 
(including Federal funds authorized by statute to be used for matching 
purposes), Tribal funds, or in-kind contributions to meet the required 
25 percent Tribal match. In no case shall the Federal share be greater 
than 90 percent.

[47 FR 44954, Oct. 12, 1982, as amended at 53 FR 37409, Sept. 26, 1988]



Sec. 35.410  Limitations.

    (a) The Regional Administrator will not make an initial award of 
section 1443(a) funds unless the applicant has a public water system 
supervision program or will establish one within a year of the award and 
will assume primary enforcement responsibility for the State's public 
water systems within that year.
    (b) The Regional Administrator will not award section 1443(a) funds 
after the initial award unless the applicant has primary enforcement 
responsibility for the State's public water systems.
    (c) The limitations in paragraphs (a) and (b), of this section do 
not apply to funds allotted to Indian Tribes.

[47 FR 44954, Oct. 12, 1982, as amended at 53 FR 37409, Sept. 26, 1988]



Sec. 35.415  Indian Tribes.

    (a) The Regional Administrator will not award initial section 
1443(a) funds to an Indian Tribe unless:
    (1) EPA has determined that the Indian Tribe meets the requirements 
of 40 CFR part 142, subpart H; and
    (2) The applicant has a Public Water System Supervision Program or 
agrees to establish one within three years of the initial award and 
agrees to assume primary enforcement responsibility within this period. 
Upon agreement by the applicant, at least one year of the grant funding 
will be used to demonstrate program capability to implement the 
requirements found in Sec. 142.10.
    (b) The Regional Administrator shall not give a continuation award 
to any Indian Tribe unless the Tribe can demonstrate reasonable progress 
towards assuming primary enforcement responsibility within the three-
year period.
    (c) After the three-year period expires, the Regional Administrator 
shall not award section 1443(a) funds to an Indian Tribe unless the 
Tribe has assumed primary enforcement responsibility.

[53 FR 37409, Sept. 26, 1988, as amended at 54 FR 52137, Dec. 20, 1989; 
59 FR 13817, Mar. 23, 1994]

          Underground Water Source Protection (Section 1443(b))



Sec. 35.450  Purpose.

    Section 1443(b) of the Safe Drinking Water Act authorizes assistance 
to States and eligible Indian Tribes under Underground Water Source 
Protection Programs. Associated program regulations are found in 40 CFR 
parts 124, 144, 145, 146, and 147.

[53 FR 37409, Sept. 26, 1988, as amended at 59 FR 13817, Mar. 23, 1994]



Sec. 35.455  Maximum Federal share.

    (a) The Regional Administrator may provide up to seventy-five 
percent of the approved work program costs.
    (b) The Regional Administrator may increase the 75 percent maximum 
Federal share for an Indian Tribe based upon application and 
demonstration by the Tribe that it does not have adequate funds 
(including Federal funds authorized by statute to be used for matching 
purposes), Tribal funds, or in-kind contributions to meet the required 
25 percent match requirement. In no case shall the Federal share be 
greater than 90 percent.

[47 FR 44954, Oct. 12, 1982, as amended at 53 FR 37409, Sept. 26, 1988]



Sec. 35.460  Limitations.

    After September 30, 1983, the Regional Administrator will not award 
section 1443(b) funds unless the applicant has primary enforcement 
responsibility for the Underground Water Source Protection program. The 
above

[[Page 419]]

limitation shall not apply to funds allotted to Indian Tribes.

[53 FR 37409, Sept. 26, 1988]



Sec. 35.465  Indian Tribes.

    (a) The Regional Administrator will not award initial section 
1443(b) funds to an Indian Tribe unless:
    (1) EPA has determined that the Indian Tribe meets the requirements 
of 40 CFR part 145 subpart E.
    (2) The applicant has an Underground Water Source Protection program 
or agrees to establish one within four years of the initial award and 
agrees to assume primary enforcement responsibility within this period.
    (b) The Regional Administrator shall not give a continuation award 
to any Indian Tribe unless the Tribe can demonstrate reasonable progress 
towards assuming primary enforcement responsibility within the four-year 
period.
    (c) After the four-year period expires, the Regional Administrator 
shall not award section 1443(b) funds to an Indian Tribe unless the 
Tribe has assumed primary enforcement responsibility.

[53 FR 37409, Sept. 26, 1988, as amended at 59 FR 13817, Mar. 23, 1994]

                Hazardous Waste Management (Section 3011)



Sec. 35.500  Purpose.

    Section 3011(a) of the Solid Waste Disposal Act, as amended, 
authorizes assistance to States (as defined in section 1004 of the Act) 
for the development and implementation of authorized State hazardous 
waste management programs. Associated program regulations are found in 
40 CFR parts 122, subparts A and B; 123, subparts A, B, and F; 124, 
subparts A and B; and 260-266.



Sec. 35.505  Maximum Federal share.

    The Regional Administrator may provide up to seventy-five percent of 
the approved work program costs.



Sec. 35.510  Limitations.

    The Regional Administrator will not award section 3011(a) funds in a 
State with interim or final hazardous waste authorization unless the 
applicant is the lead agency designated in the authorization agreement.

                Pesticide Enforcement (Section 23(a)(1))



Sec. 35.550  Purpose.

    Section 23(a)(1) of the Federal Insecticide, Fungicide, and 
Rodenticide Act authorizes assistance to States (as defined in section 2 
of the Act) and Indian tribes to implement pesticide enforcement 
programs. Associated program regulations are found in 40 CFR parts 162, 
165-167, 169-170, and 172-173 and 19 CFR part 12.



Sec. 35.555  Maximum Federal share.

    The Regional Administrator may provide up to one hundred percent of 
the approved work program costs.

   Pesticide Applicator Certification and Training (Section 23(a)(2))



Sec. 35.600  Purpose.

    Section 23(a)(2) of the Federal Insecticide, Fungicide, and 
Rodenticide Act authorizes assistance to States (as defined in section 2 
of the Act) and Indian tribes to implement programs to train and certify 
applicants of restricted use pesticides. Associated program regulations 
are found in 40 CFR parts 162 and 170-171.



Sec. 35.605  Maximum Federal share.

    The Regional Administrator may provide up to fifty percent of the 
approved work program costs.

       Nonpoint Source Management (Sections 205(j)(5) and 319(h))



Sec. 35.750  Purpose.

    Sections 319 and 518 of the Clean Water Act authorize nonpoint 
source management assistance to States, including eligible Indian 
Tribes. Under section 319(h), grants may be awarded for the development 
of nonpoint source management programs, using funds reserved under 
section 205(j)(5) of the Act, and for the implementation of EPA-approved 
management programs using funds reserved under section 205(j)(5) or 
funds appropriated under section 319. Under section 319(i), grants may 
be awarded to carry out ground- 

[[Page 420]]

water quality protection activities that will advance the implementation 
of a comprehensive approved nonpoint source management program.

[54 FR 14358, Apr. 11, 1989, as amended at 59 FR 13817, Mar. 23, 1994]



Sec. 35.755  Awards to Indian Tribes.

    (a) No grants for the development of an approved nonpoint source 
management program will be awarded to an Indian Tribe unless the 
Regional Administrator determines that the Tribe meets the requirements 
set forth at 40 CFR 130.6(d).
    (b) No funds for the implementation of an approved nonpoint source 
management program will be awarded to an Indian Tribe unless:
    (1) The Regional Administrator determines that the Indian Tribe 
meets the requirements set forth at 40 CFR 130.6(d).
    (2) The Tribe agrees to:
    (i) Maintain its aggregate expenditures from all other sources for 
programs controlling pollution from nonpoint sources and improving the 
quality of navigable waters within the Tribe's jurisdiction at or above 
the average levels of such expenditures in the fiscal years 1985 and 
1986;
    (ii) Limit administrative costs for services provided and charged 
against activities and programs carried out with a grant under section 
319(h) to no more than 10 percent of the amount of the grant in any 
year, except that costs of implementing enforcement and regulatory 
activities, education, training, technical assistance, demonstration 
projects, and technology transfer programs are not subject to this 
limitation; and
    (iii) Provide a matching share in accordance with 40 CFR 35.760;
    (iv) Use such funds for financial assistance to persons only to the 
extent that such assistance is related to the costs of demonstration 
projects.
    (v) Report to the Administrator on an annual basis concerning (A) 
its progress in meeting the schedule of milestones submitted under 
section 319(b)(2)(C) of the Act and (B) to the extent that appropriate 
information is available, reductions in nonpoint source pollutant 
loading and improvements in water quality for those navigable waters or 
watersheds within the jurisdiction of the Tribe which were identified 
under section 319(a)(1)(A) of the Act resulting from implementation of 
the management program.
    (c) No funds to carry out ground-water protection activities under 
section 319(i) of the Act will be awarded to an Indian Tribe unless:
    (1) The Regional Administrator determines that the Tribe meets the 
requirements for treatment as a State in accordance with 40 CFR 130.6(d) 
and 130.15; and
    (2) The Tribe agrees to provide a matching share in accordance with 
40 CFR 35.760.
    (d) The Regional Administrator will not give a nonpoint source 
management continuation award to any Indian Tribe unless the Tribe shows 
satisfactory progress in meeting its negotiated milestones and goals.

[54 FR 14359, Apr. 11, 1989, as amended at 59 FR 13817, Mar. 23, 1994]



Sec. 35.760  Maximum Federal share.

    (a) The Regional Administrator may provide up to 100 percent of 
approved work program costs for the development of a nonpoint source 
management program.
    (b) Except as provided in paragraph (c) or (d) of this section, the 
Regional Administrator may provide to an Indian Tribe up to 60 percent 
of approved nonpoint source management implementation program costs, and 
50 percent of approved ground-water protection program costs, on 
condition that the non-Federal share is provided from non-Federal 
sources.
    (c) The Regional Administrator may increase the maximum Federal 
shares upon application and demonstration by the Tribe that it does not 
have adequate funds (including Federal funds authorized by statute to be 
used for matching purposes, tribal funds or in-kind contributions) to 
meet the required match. In no case shall the Federal share be greater 
than 90 percent.
    (d) In any fiscal year, the amount of assistance awarded under 
section 319 of the Act to any one Indian Tribe treated as a State shall 
not exceed 15 percent of the section 319(h) reserve for Tribes 
established under Sec. 35.115(e).

[[Page 421]]

    (e) In any fiscal year the amount of assistance awarded to any one 
Indian Tribe treated as a State under section 319(i), from funds 
appropriated under section 319(j), shall not exceed $150,000.

[54 FR 14359, Apr. 11, 1989]



                        Subparts B-D--[Reserved]



 Subpart E--Grants for Construction of Treatment Works--Clean Water Act

    Authority: Secs. 109(b), 201 through 205, 207, 208(d), 210 through 
212, 215 through 217, 304(d)(3), 313, 501, 502, 511, and 516(b) of the 
Clean Water Act, as amended, 33 U.S.C. 1251 et seq.

    Source: 43 FR 44049, Sept. 27, 1978, unless otherwise noted.



Sec. 35.900  Purpose.

    (a) This subpart supplements the EPA general grant regulations and 
procedures (part 30 of this chapter) and establishes policies and 
procedures for grants to assist in the construction of waste treatment 
works in compliance with the Clean Water Act.
    (b) A number of provisions of this subpart which contained 
transition dates preceding October 1, 1978, have been modified to delete 
those dates. However, the earlier requirements remain applicable to 
grants awarded when those provisions were in effect. The transition 
provisions in former Sec. Sec. 35.905-4, 35.917, and 35.925-18 remain 
applicable to certain grants awarded through March 31, 1981.
    (c) Technical and guidance publications (MCD series) concerning this 
program which are issued by EPA may be ordered from: General Services 
Administration (8FFS), Centralized Mailing List Services, Building 41, 
Denver Federal Center, Denver, Colo. 80225. In order to expedite 
processing of requests, persons desiring to obtain these publications 
should request a copy of EPA form 7500-21 (the order form listing all 
available publications), from EPA Headquarters, Municipal Construction 
Division (WH-547) or from any regional office of EPA.



Sec. 35.901  Program policy.

    The primary purpose of Federal grant assistance available under this 
subpart is to assist municipalities in meeting enforceable requirements 
of the Act, particularly, applicable national pollution discharge 
elimination system (NPDES) permit requirements. The Regional 
Administrator and States are authorized and encouraged to administer 
this grant program in a manner which will most effectively achieve the 
enforceable requirements of the Act.



Sec. 35.903  Summary of construction grant program.

    (a) The construction of federally financed waste treatment works is 
generally accomplished in three steps: Step 1, facilities plans and 
related elements; step 2, preparation of construction drawings and 
specifications; and step 3, building of a treatment works.
    (b) The Regional Administrator may award grant assistance for a step 
1, step 2, or step 3 project, or, as authorized by Sec. 35.909, for a 
project involving a combination of step 2 and step 3 (step 2+3 grant). 
For a step 1, step 2, or step 3 grant award, a ``project'' may consist 
of an entire step or any ``treatment works segment'' (see Sec. 35.905) 
of construction within a step. In the case of step 2+3 grant awards, a 
project must consist of all associated step 2 and step 3 work; 
segmenting is not permitted.
    (c) Grants are awarded from State allocations (see Sec. 35.910 et 
seq.) under the Act. No grant assistance may be awarded unless priority 
for a project has been determined in accordance with an approved State 
priority system under Sec. 35.915. The State is responsible for 
determining the amount and timing of Federal assistance to each 
municipality for which treatment works funding is needed.
    (d) An applicant will initially define the scope of a project. The 
State may revise this initial project scope when priority for the 
project is established. The Regional Administrator will make the final 
determination of project scope when grant assistance is awarded (see 
Sec. 35.930-4).
    (e) For each proposed grant, an applicant must first submit his 
application to the State agency. The basic grant

[[Page 422]]

application must meet the requirements for the project in Sec. 35.920-3. 
If grant assistance for subsequent related projects is necessary, the 
grantee shall make submissions in the form of amendments to the basic 
application. The State agency will forward to the appropriate EPA 
Regional Administrator complete project applications or amendments to 
them for which the State agency has determined priority. The grant will 
consist of the grant agreement resulting from the basic application and 
grant amendments awarded for subsequent related projects.
    (f) Generally, grant assistance for projects involving step 2 or 3 
will not be awarded unless the Regional Administrator first determines 
that the facilities planning requirements of Sec. Sec. 35.917 to 35.917-
9 of this subpart have been met. Facilities planning may not be 
initiated prior to approval of a step 1 grant or written approval of a 
``plan of study'' accompanied by a reservation of funds (see 
Sec. 35.925-18 and definition of ``construction'' in Sec. 35.905).
    (g) If initiation of step 1, 2, or 3 construction (see definition of 
``construction'' in Sec. 35.905) occurs before grant award, costs 
incurred before the approved date of initiation of construction will not 
be paid and award will not be made except under the circumstances in 
Sec. 35.925-18.
    (h) The Regional Administrator may not award grant assistance unless 
the application meets the requirements of Sec. 35.920-3 and he has made 
the determinations required by Sec. 35.925 et seq.
    (i) A grant or grant amendment awarded for a project under this 
subpart shall constitute a contractual obligation of the United States 
to pay the Federal share of allowable project costs up to the amount 
approved in the grant agreement (including amendments) in accordance 
with Sec. 35.930-6. However, this obligation is subject to the grantee's 
compliance with the conditions of the grant (see Sec. 35.935 et seq.) 
and other applicable requirements of this subpart.
    (j) Sections 35.937-10, 35.938-6 and 35.945 authorize prompt payment 
for project costs which have been incurred. The initial request for 
payment may cover the Federal share of allowable costs incurred before 
the award except as otherwise provided in Sec. 35.925-18. Before the 
award of such assistance, the applicant must claim in the application 
for grant assistance for that project all allowable costs incurred 
before initiation of project construction. An applicant may make no 
subsequent claim for payment for such costs. The estimated amount of any 
grant or grant amendment, including any prior costs, must be established 
in conjunction with determination of priority for the project. The 
Regional Administrator must determine that the project costs are 
allowable under Sec. 35.940 et seq.
    (k) Under section 204(b) of the Act, the grantee must comply with 
applicable user charge and industrial cost recovery requirements; see 
Sec. Sec. 35.925-11, 35.928 et seq., 35.929 et seq., 35.935-13, 35.935-
15, and appendix B to this subpart.
    (l) The costs of sewage collection systems for new communities, new 
subdivisions, or newly developed urban areas should be included as part 
of the development costs of the new construction in these areas. Under 
section 211 of the Act, such costs will not be allowed under the 
construction grant program; see Sec. 35.925-13.
    (m) The approval of a plan of study for step 1, a facilities plan, 
or award of grant assistance for step 1, step 2, or step 3, or any 
segment thereof, will not constitute a Federal commitment for grant 
assistance for any subequent project.
    (n) Where justified, a deviation from any substatutory requirement 
of this subpart may be granted under Sec. 30.1000 of this chapter.
    (o) The Act requires EPA and the States to provide for, encourage 
and assist public participation in the Construction Grants Program. This 
requirement for public participation applies to the development of the 
State water pollution control strategy, the State project priority 
system, and the State project priority list, under Sec. 35.915; to the 
development of user charge and industrial cost recovery systems, under 
Sec. Sec. 35.925.11, 35.928, and 35.929; and to the delegation of 
administrative responsibilities for the Construction Grants Program 
under subpart F of this chapter.

[[Page 423]]

    (p) Requirements regarding the award and administration of 
subagreements are set forth in Sec. Sec. 35.935 through 35.939.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 10302, Feb. 16, 1979]



Sec. 35.905  Definitions.

    As used in this subpart, the following words and terms mean:
    Act. The Clean Water Act (33 U.S.C. 1251 et seq., as amended).
    Ad valorem tax. A tax based upon the value of real property.
    Combined sewer. A sewer intended to serve as a sanitary sewer and a 
storm sewer, or as an industrial sewer and a storm sewer.
    Complete waste treatment system. A complete waste treatment system 
consists of all the treatment works necessary to meet the requirements 
of title III of the Act, involved in: (a) The transport of waste waters 
from individual homes or buildings to a plant or facility where 
treatment of the waste water is accomplished; (b) the treatment of the 
waste waters to remove pollutants; and (c) the ultimate disposal, 
including recycling or reuse, of the treated waste waters and residues 
which result from the treatment process. One complete waste treatment 
system would, normally, include one treatment plant or facility, but 
also includes two or more connected or integrated treatment plants or 
facilities.
    Construction. Any one or more of the following: Preliminary planning 
to determine the feasibility of treatment works, engineering, 
architectural, legal, fiscal, or economic investigations or studies, 
surveys, designs, plans, working drawings, specifications, procedures, 
or other necessary actions, erection, building, acquisition, alteration, 
remodeling, improvement, or extension of treatment works, or the 
inspection or supervision of any of the foregoing items. The phrase 
initiation of construction, as used in this subpart means with reference 
to a project for:
    (a) Step 1: The approval of a plan of study (see Sec. Sec. 35.920-
3(a)(1) and 35.925-18(a));
    (b) Step 2: The award of a step 2 grant;
    (c) Step 3: Issuance of a notice to proceed under a construction 
contract for any segment of step 3 project work or, if notice to proceed 
is not required, execution of the construction contract.
    Enforceable requirements of the Act. Those conditions or limitations 
of section 402 or 404 permits which, if violated, could result in the 
issuance of a compliance order or initiation of a civil or criminal 
action under section 309 of the Act. If a permit has not been issued, 
the term shall include any requirement which, in the Regional 
Administrator's judgment, would be included in the permit when issued. 
Where no permit applies, the term shall include any requirement which 
the Regional Administrator determines is necessary to meet applicable 
criteria for best practicable waste treatment technology (BPWTT).
    Excessive infiltration/inflow. The quantities of infiltration/inflow 
which can be economically eliminated from a sewerage system by 
rehabilitation, as determined in a cost-effectiveness analysis that 
compares the costs for correcting the infiltration/inflow conditions to 
the total costs for transportation and treatment of the infiltration/
inflow, subject to the provisions in Sec. 35.927.
    Industrial cost recovery. (a) The grantee's recovery from the 
industrial users of a treatment works of the grant amount allocable to 
the treatment of waste from such users under section 204(b) of the Act 
and this subpart.
    (b) The grantee's recovery from the commercial users of an 
individual system of the grant amount allocable to the treatment of 
waste from such users under section 201(h) of the Act and this subpart.
    Industrial cost recovery period. That period during which the grant 
amount allocable to the treatment of wastes from industrial users is 
recovered from the industrial users of such works.
    Industrial user. (a) Any nongovernmental, nonresidential user of a 
publicly owned treatment works which discharges more than the equivalent 
of 25,000 gallons per day (gpd) of sanitary wastes and which is 
identified in the Standard Industrial Classification Manual, 1972, 
Office of Management and Budget, as amended and supplemented under one 
of the following divisions:


[[Page 424]]


    Division A. Agriculture, Forestry, and Fishing.
    Division B. Mining.
    Division D. Manufacturing.
    Division E. Transportation, Communications, Electric, Gas, and 
Sanitary Services.
    Division I. Services.

    (1) In determining the amount of a user's discharge for purposes of 
industrial cost recovery, the grantee may exclude domestic wastes or 
discharges from sanitary conveniences.
    (2) After applying the sanitary waste exclusion in paragraph (b)(1) 
of this section (if the grantee chooses to do so), dischargers in the 
above divisions that have a volume exceeding 25,000 gpd or the weight of 
biochemical oxygen demand (BOD) or suspended solids (SS) equivalent to 
that weight found in 25,000 gpd of sanitary waste are considered 
industrial users. Sanitary wastes, for purposes of this calculation of 
equivalency, are the wastes discharged from residential users. The 
grantee, with the Regional Administrator's approval, shall define the 
strength of the residential discharges in terms of parameters including, 
as a minimum, BOD and SS per volume of flow.
    (b) Any nongovernmental user of a publicly owned treatment works 
which discharges waste water to the treatment works which contains toxic 
pollutants or poisonous solids, liquids, or gases in sufficient quantity 
either singly or by interaction with other wastes, to contaminate the 
sludge of any municipal systems, or to injure or to interfere with any 
sewage treatment process, or which constitutes a hazard to humans or 
animals, creates a public nuisance, or creates any hazard in or has an 
adverse effect on the waters receiving any discharge from the treatment 
works.
    (c) All commercial users of an individual system constructed with 
grant assistance under section 201(h) of the Act and this subpart. (See 
Sec. 35.918(a)(3).)
    Infiltration. Water other than waste water that enters a sewerage 
system (including sewer service connections) from the ground through 
such means as defective pipes, pipe joints, connections, or manholes. 
Infiltration does not include, and is distinguished from, inflow.
    Infiltration/inflow. The total quantity of water from both 
infiltration and inflow without distinguishing the source.
    Inflow. Water other than waste water that enters a sewerage system 
(including sewer service connections) from sources such as roof leaders, 
cellar drains, yard drains, area drains, foundation drains, drains from 
springs and swampy areas, manhole covers, cross connections between 
storm sewers and sanitary sewers, catch basins, cooling towers, storm 
waters, surface runoff, street wash waters, or drainage. Inflow does not 
include, and is distinguished from, infiltration.
    Interceptor sewer. A sewer whose primary purpose is to transport 
waste waters from collector sewers to a treatment facility.
    Interstate agency. An agency of two or more States established under 
an agreement or compact approved by the Congress, or any other agency of 
two or more States, having substantial powers or duties pertaining to 
the control of water pollution.
    Municipality. A city, town, borough, county, parish, district, 
association, or other public body (including an intermunicipal agency of 
two or more of the foregoing entities) created under State law, or an 
Indian tribe or an authorized Indian tribal organization, having 
jurisdiction over disposal of sewage, industrial wastes, or other waste, 
or a designated and approved management agency under section 208 of the 
Act.
    (a) This definition includes a special district created under State 
law such as a water district, sewer district, sanitary district, utility 
district, drainage district, or similar entity or an integrated waste 
management facility, as defined in section 201(e) of the Act, which has 
as one of its principal responsibilities the treatment, transport, or 
disposal of liquid wastes of the general public in a particular 
geographic area.
    (b) This definition excludes the following:
    (1) Any revenue producing entity which has as its principal 
responsibility an activity other than providing waste water treatment 
services to the general public, such as an airport, turnpike, port 
facility, or other municipal utility.

[[Page 425]]

    (2) Any special district (such as school district or a park 
district) which has the responsibility to provide waste water treatment 
services in support of its principal activity at specific facilities, 
unless the special district has the responsibility under State law to 
provide waste water treatment services to the community surrounding the 
special district's facility and no other municipality, with concurrent 
jurisdiction to serve the community, serves or intends to serve the 
special district's facility or the surrounding community.
    Operable treatment works. An operable treatment works is a treatment 
works that:
    (a) Upon completion of construction will treat waste water, 
transport waste water to or from treatment, or transport and dispose of 
waste water in a manner which will significantly improve an 
objectionable water quality situation or health hazard, and
    (b) Is a component part of a complete waste treatment system which, 
upon completion of construction for the complete waste treatment system 
(or completion of construction of other treatment works in the system in 
accordance with a schedule approved by the Regional Administrator) will 
comply with all applicable statutory and regulatory requirements.
    Project. The scope of work for which a grant or grant amendment is 
awarded under this subpart. The scope of work is defined as step 1, step 
2, or step 3 of treatment works construction or segments (see definition 
of treatment works segment and Sec. 35.930-4).
    Replacement. Expenditures for obtaining and installing equipment, 
accessories, or appurtenances which are necessary during the useful life 
of the treatment works to maintain the capacity and performance for 
which such works were designed and constructed. The term operation and 
maintenance includes replacement.
    Sanitary sewer. A sewer intended to carry only sanitary or sanitary 
and industrial waste waters from residences, commercial buildings, 
industrial plants, and institutions.
    Sewage collection system. For the purpose of Sec. 35.925-13, each, 
and all, of the common lateral sewers, within a publicly owned treatment 
system, which are primarily installed to receive waste waters directly 
from facilities which convey waste water from individual structures or 
from private property, and which include service connection ``Y'' 
fittings designed for connection with those facilities. The facilities 
which convey waste water from individual structures, from private 
property to the public lateral sewer, or its equivalent, are 
specifically excluded from the definition, with the exception of pumping 
units, and pressurized lines, for individual structures or groups of 
structures when such units are cost effective and are owned and 
maintained by the grantee.
    State. A State, the District of Columbia, the Commonwealth of Puerto 
Rico, the Virgin Islands, Guam, American Samoa, the Trust Territory of 
the Pacific Islands, and the Commonwealth of the Northern Marianas.
    State agency. The State water pollution control agency designated by 
the Governor having responsibility for enforcing State laws relating to 
the abatement of pollution.
    Storm sewer. A sewer intended to carry only storm waters, surface 
runoff, street wash waters, and drainage.
    Treatment works. Any devices and systems for the storage, treatment, 
recycling, and reclamation of municipal sewage, domestic sewage, or 
liquid industrial wastes used to implement section 201 of the Act, or 
necessary to recycle or reuse water at the most economical cost over the 
useful life of the works. These include intercepting sewers, outfall 
sewers, sewage collection systems, individual systems, pumping, power, 
and other equipment and their appurtenances; extensions, improvement, 
remodeling, additions, and alterations thereof; elements essential to 
provide a reliable recycled supply such as standby treatment units and 
clear well facilities; and any works, including site acquisition of the 
land that will be an integral part of the treatment process or is used 
for ultimate disposal of residues resulting from such treatment 
(including land for composting sludge, temporary storage of such 
compost, and land used for the storage of treated waste water in land 
treatment systems before land application); or any other method or 
system

[[Page 426]]

for preventing, abating, reducing, storing, treating, separating, or 
disposing of municipal waste or industrial waste, including waste in 
combined storm water and sanitary sewer systems.
    Treatment works segment. A treatment works segment may be any 
portion of an operable treatment works described in an approved 
facilities plan, under Sec. 35.917, which can be identified as a 
contract or discrete subitem or subcontract for step 1, 2, or 3 work. 
Completion of construction of a treatment works segment may, but need 
not, result in an operable treatment works.
    Useful life. Estimated period during which a treatment works will be 
operated.
    User charge. A charge levied on users of a treatment works, or that 
portion of the ad valorem taxes paid by a user, for the user's 
proportionate share of the cost of operation and maintenance (including 
replacement) of such works under sections 204(b)(1)(A) and 201(h)(2) of 
the Act and this subpart.
    Value engineering (VE). A specialized cost control technique which 
uses a systematic and creative approach to identify and to focus on 
unnecessarily high cost in a project in order to arrive at a cost saving 
without sacrificing the reliability or efficiency of the project.



Sec. 35.907  Municipal pretreatment program.

    (a) The Regional Administrator is authorized to provide grant 
assistance for the development of an approvable municipal pretreatment 
program as required by part 403 of this chapter in conjunction with a 
step 1, step 2, or step 3 project.
    (b) The grantee is required to develop a pretreatment program if the 
Regional Administrator determines that:
    (1) The municipal treatment works:
    (i) Serves industries subject to proposed or promulgated 
pretreatment standards under section 307(b) of the Act, or
    (ii) Expects to serve industries connecting into the works in 
accordance with section 301(i)(2), where these industries are subject to 
the section 307 (b) or (c) standards: and
    (2) A work plan under a section 208 planning grant has not provided 
for the development of a program approvable under part 403 of this 
chapter.
    (c) A pretreatment program may be required for municipal treatment 
works which receive other nondomestic wastes covered by guidance issued 
under section 304(g) of the Act.
    (d) Development of an approvable municipal pretreatment program 
under part 403 of this chapter shall include:
    (1) An industrial survey as required by Sec. 403.8 of this chapter 
including identification of system users, the character and volume of 
pollutants discharged, type of industry, location (see paragraph (f) of 
this section);
    (2) An evaluation of legal authority, including adequacy of enabling 
legislation, and selection of mechanisms to be used for control and 
enforcement (e.g., ordinance, joint powers agreement, contract);
    (3) An evaluation of financial programs and revenue sources to 
insure adequate funding to carry out the pretreatment program;
    (4) A determination of technical information necessary to support 
development of an industrial waste ordinance or other means of enforcing 
pretreatment standards;
    (5) Design of a monitoring enforcement program;
    (6) A determination of pollutant removals in existing treatment 
works;
    (7) A determination of the treatment works tolerance to pollutants 
which interfere with its operation, sludge use, or disposal;
    (8) A determination of required monitoring equipment for the 
municipal treatment works;
    (9) A determination of municipal facilities to be constructed for 
monitoring or analysis of industrial waste.
    (e) Items (d) (6) and (7) of this section are grant eligible if 
necessary for the proper design or operation of the municipal treatment 
works but are not grant eligible when performed solely for the purpose 
of seeking an allowance for removal of pollutants under Sec. 403.7 of 
this chapter.
    (f) Information concerning the character and volume of pollutants 
discharged by industry to a municipal treatment works is to be provided 
to the municipality by the industrial discharger under paragraph (d)(1) 
of this

[[Page 427]]

section. However, the costs of a limited amount of end-of-pipe sampling 
and associated analysis of industrial discharges to a municipal 
treatment works properly allocable to the municipality are allowable if 
the grantee obtains the prior written approval of the Regional 
Administrator; see Sec. 35.940-3(f).
    (g) The pretreatment program developed under paragraph (b) of this 
section is subject to the Regional Administrator's approval under 
Sec. 35.935-19 and must be implemented in accordance with part 403 of 
this chapter.



Sec. 35.908  Innovative and alternative technologies.

    (a) Policy. EPA's policy is to encourage and, where possible, to 
assist in the development of innovative and alternative technologies for 
the construction of waste water treatment works. Such technologies may 
be used in the construction of waste water treatment works under this 
subpart as Sec. 35.915-1, Sec. 35.930-5, appendix E, and this section 
provide. New technology or processes may also be developed or 
demonstrated with the assistance of EPA research or demonstration grants 
awarded under Title I of the Act (see part 40 of this subchapter).
    (b) Funding for innovative and alterative technologies. (1) Projects 
or portions of projects which the Regional Administrator determines meet 
criteria for innovative or alternative technologies in appendix E may 
receive 85-percent grants (see Sec. 35.930-5).
    (i) Only funds from the reserve in Sec. 35.915-1(b) shall be used to 
increase these grants from 75 to 85 percent.
    (ii) Funds for the grant increase shall be distributed according to 
the chronological approval of grants, unless the State and the Regional 
Administrator agree otherwise.
    (iii) The project must be on the fundable portion of the State 
project priority list.
    (iv) If the project is an alternative to conventional treatment 
works for a small community (a municipality with a population of 3,500 
or less or a highly dispersed section of a larger municipality, as 
defined by the Regional Administrator), funds from the reserve in 
Sec. 35.915(e) may be used for the 75 percent portion of the Federal 
grant.
    (v) Only if sewer related costs qualify as alternatives to 
conventional treatment works for small communities are they entitled to 
the grant increase from 75 to 85 percent, either as part of the entire 
treatment works or as components.
    (2) A project or portions of a project may be designated innovative 
or alternative on the basis of a facilities plan or on the basis of 
plans and specifications. A project that has been designated innovative 
on the basis of the facilities plan may lose that designation if plans 
and specifications indicate that it does not meet the appropriate 
criteria stated in section 6 of appendix E.
    (3) Projects or portions of projects that receive step 2, step 3, or 
step 2+3 grant awards after December 27, 1977, from funds allotted or 
reallotted in fiscal year 1978 may also receive the grant increase from 
funds allotted for fiscal year 1979 for eligible portions that meet the 
criteria for alternative technologies in appendix E, if funds are 
available for such purposes under Sec. 35.915-1(b).
    (c) Modification or replacement of innovative and alternative 
projects. The Regional Administrator may award grant assistance to fund 
100 percent of the eligible costs of the modification or replacement of 
any treatment works constructed with 85-percent grant assistance if:
    (1) He determines that:
    (i) The facilities have not met design performance specifications 
(unless such failure is due to any person's negligence);
    (ii) Correction of the failure requires significantly increased 
capital or operating and maintenance expenditures; and
    (iii) Such failure has occurred within the 2-year period following 
final inspection; and
    (2) The replacement or modification project is on the fundable 
portion of the State's priority list.
    (d) Sole source procurement. A determination by the Regional 
Administrator under this section that innovative criteria have been met 
will serve

[[Page 428]]

as the basis for sole source procurement (see Sec. 35.936-13(b)) for 
step 3, if appropriate, to achieve the objective of demonstrating 
innovative technology.



Sec. 35.909  Step 2+3 grants.

    (a) Authority. The Regional Administrator may award grant assistance 
for a step 2+3 project for the combination of design (step 2) and 
construction (step 3) of a waste water treatment works.
    (b) Limitations. The Regional Administrator may award step 2+3 grant 
assistance only if he determines that:
    (1) The population is 25,000 or less for the applicant municipality 
(according to most recent U.S. Census information or disaggregations 
thereof);
    (2) The treatment works has an estimated total step 3 construction 
cost of $2 million or less, as determined by the Regional Administrator. 
For any State that the Assistant Administrator for Water and Waste 
Management finds to have unusually high costs of construction, the 
Regional Administrator may make step 2+3 awards where the estimated 
total step 3 construction costs of such treatment works does not exceed 
$3 million. The project must consist of all associated step 2 and step 3 
work; segmenting is not permitted; and
    (3) The fundable range of the approved project priority list 
includes the step 2 and step 3 work.
    (c) Application requirements. Step 2+3 projects are subject to all 
requirements of this subpart that apply to separate step 2 and step 3 
projects except compliance with Sec. 35.920-3(c) is not required before 
grant award. An applicant should only submit a single application.
    (d) Cross references. See Sec. Sec. 35.920-3(d) (contents of 
application), 35.930-1(a)(4) (types of projects) and 35.935-4 (grant 
conditions).



Sec. 35.910  Allocation of funds.



Sec. 35.910-1  Allotments.

    Allotments are made on a formula or other basis which Congress 
specifies for each fiscal year. Except where Congress indicates the 
exact amount of funds which each State should receive, computation of a 
State's ratio will be carried out to the nearest ten-thousandth percent 
(0.0001 percent). Unless regulations for allotments for a specific 
fiscal year otherwise specify, alloted amounts will be rounded to the 
nearest thousand dollars.



Sec. 35.910-2  Period of availability; reallotment.

    (a) All sums allotted under Sec. 35.910-5 shall remain available for 
obligation within that State until September 30, 1978. Such funds which 
remain unobligated on October 1, 1978, will be immediately reallotted in 
the same manner as sums under paragraph (b) of this section.
    (b) All other sums allotted to a State under section 207 of the Act 
shall remain available for obligation until the end of 1 year after the 
close of the fiscal year for which the sums were authorized. Sums not 
obligated at the end of that period shall be immediately reallotted on 
the basis of the same ratio as applicable to sums allotted for the then-
current fiscal year, but none of the funds reallotted shall be made 
available to any State which failed to obligate any of the funds being 
reallotted. Any sum made available to a State by reallotment under this 
section shall be in addition to any funds otherwise allotted to such 
State for grants under this subpart during any fiscal year.
    (c) Sums which are deobligated after the reallotment date for those 
funds shall be treated in the same manner as the most recent allotment 
before the deobligation.
Sec. Sec. 35.910-3--35.910-4  [Reserved]



Sec. 35.910-5  Additional allotments of previously withheld sums.

    (a) A total sum of $9 billion is allotted from sums authorized, but 
initially unallotted, for fiscal years 1973, 1974, and 1975. This 
additional allotment shall be available for obligation through September 
30, 1977, before reallotment of unobligated sums under Sec. 35.910-2.
    (b) Two-thirds of the sum hereby allotted ($6 billion) represents 
the initially unallotted portion of the amounts authorized for fiscal 
years 1973 and 1974. Therefore, the portion of the additional allotments 
derived from this sum were computed by applying

[[Page 429]]

the percentages formerly set forth in Sec. 35.910-3(b) to the total sums 
authorized for fiscal years 1973 and 1974 ($11 billion) and subtracting 
the previously allotted sums, formerly set forth in Sec. 35.910-3(c).
    (c) One-third of the sum hereby allotted ($3 billion) represents the 
initially unallotted portion of the amounts authorized for fiscal year 
1975. Therefore, the portion of the additional allotments derived from 
this sum were computed in a three-step process: First, by applying the 
percentages set forth in Sec. 35.910-4(b) to the total sums authorized 
for fiscal year 1975 ($7 billion); then, by making adjustments necessary 
to assure that no State's allotment of such sums fell below its fiscal 
year 1972 allotment, under Pub. L. 93-243; and, finally, by subtracting 
the previously allotted sums set forth in Sec. 35.910-4(c).
    (d) Based upon the computations set forth in paragraphs (b) and (c) 
of this section, the total additional sums hereby allotted to the States 
are as follows:

------------------------------------------------------------------------
                         State                              Allotment   
------------------------------------------------------------------------
Alabama................................................      $43,975,950
Alaska.................................................       25,250,500
Arizona................................................       18,833,450
Arkansas...............................................       39,822,700
California.............................................      945,776,800
Colorado...............................................       43,113,300
Connecticut............................................      155,091,800
Delaware...............................................       56,394,900
District of Columbia...................................       72,492,000
Florida................................................      345,870,100
Georgia................................................      117,772,800
Hawaii.................................................       51,903,300
Idaho..................................................       19,219,100
Illinois...............................................      571,698,400
Indiana................................................      251,631,800
Iowa...................................................      100,044,900
Kansas.................................................       53,794,200
Kentucky...............................................       90,430,800
Louisiana..............................................       71,712,250
Maine..................................................       78,495,200
Maryland...............................................      297,705,300
Massachusetts..........................................      295,809,100
Michigan...............................................      625,991,900
Minnesota..............................................      172,024,500
Mississippi............................................       38,735,200
Missouri...............................................      157,471,200
Montana................................................       12,378,200
Nebraska...............................................       38,539,500
Nevada.................................................       31,839,800
New Hampshire..........................................       77,199,350
New Jersey.............................................      660,830,500
New Mexico.............................................       15,054,900
New York...............................................    1,046,103,500
North Carolina.........................................      110,345,000
North Dakota...........................................        2,802,000
Ohio...................................................      497,227,400
Oklahoma...............................................       64,298,700
Oregon.................................................       77,582,900
Pennsylvania...........................................      498,984,900
Rhode Island...........................................       45,599,600
South Carolina.........................................       82,341,900
South Dakota...........................................        5,688,000
Tennessee..............................................      107,351,400
Texas..................................................      174,969,850
Utah...................................................       21,376,500
Vermont................................................       22,506,600
Virginia...............................................      251,809,000
Washington.............................................      103,915,600
West Virginia..........................................       59,419,900
Wisconsin..............................................      145,327,400
Wyoming................................................        2,930,650
Guam...................................................        6,399,200
Puerto Rico............................................       84,910,500
Virgin Islands.........................................        7,794,800
American Samoa.........................................          738,200
Trust Territory of Pacific.............................        2,672,800
                                                        ----------------
      Total............................................    9,000,000,000
------------------------------------------------------------------------



Sec. 35.910-6  Fiscal year 1977 public works allotments.

    (a) The $480 million appropriated by Public Law 94-447, 90 Stat. 
1498, is available for obligation under the authority of title III of 
the Public Works Employment Act of 1976 (Pub. L. 94-369, 90 Stat. 999), 
as provided by section 301 of Public Law 94-369, to carry out title II 
of the Clean Water Act (other than sections 206, 208, and 209). 
Allotments of these funds shall remain available until expended. Amounts 
allotted are in addition to the State's last allotment under the Clean 
Water Act and are to be used for the same purpose.
    (b) The sum of $480 million has been allotted to States identified 
in column 1 of the Table IV of the House Public Works and Transportation 
Committee print numbered 94-25 based on percentages shown in column 5 of 
that table.
    (c) The percentages referred to in paragraph (b) of this section and 
used in computing the State allotments set forth in paragraph (d) of 
this section are as follows:

------------------------------------------------------------------------
                            State                               Percent 
------------------------------------------------------------------------
Alabama.....................................................        4.90
Alaska......................................................         .91
Arizona.....................................................        4.69
Arkansas....................................................        3.74
California..................................................           0
Colorado....................................................        3.04
Connecticut.................................................           0
Delaware....................................................           0
District of Columbia........................................           0
Florida.....................................................        2.97
Georgia.....................................................        5.70
Hawaii......................................................         .60
Idaho.......................................................        1.06
Illinois....................................................           0
Indiana.....................................................           0
Iowa........................................................         .37

[[Page 430]]

                                                                        
Kansas......................................................        2.90
Kentucky....................................................        2.70
Louisiana...................................................        3.51
Maine.......................................................           0
Maryland....................................................        1.51
Massachusetts...............................................           0
Michigan....................................................           0
Minnesota...................................................           0
Mississippi.................................................        2.65
Missouri....................................................        1.47
Montana.....................................................         .63
Nebraska....................................................         .77
Nevada......................................................         .13
New Hampshire...............................................           0
New Jersey..................................................           0
New Mexico..................................................        1.13
New York....................................................           0
North Carolina..............................................        6.65
North Dakota................................................        1.06
Ohio........................................................           0
Oklahoma....................................................        3.64
Oregon......................................................         .28
Pennsylvania................................................           0
Rhode Island................................................           0
South Carolina..............................................        2.92
South Dakota................................................         .89
Tennessee...................................................        3.01
Texas.......................................................       18.46
Utah........................................................        1.86
Vermont.....................................................           0
Virginia....................................................           0
Washington..................................................        2.49
West Virginia...............................................        7.14
Wisconsin...................................................        2.65
Wyoming.....................................................         .91
Guam........................................................         .30
Puerto Rico.................................................        1.22
Virgin Islands..............................................           0
American Samoa..............................................         .16
Trust Territory of Pacific..................................         .98
                                                             -----------
      Total.................................................      100.00
------------------------------------------------------------------------

    (d) Based on these percentages, the total additional sums hereby 
allotted to the States are as follows:

------------------------------------------------------------------------
                                                            Allotments  
                                                            from funds  
                          State                            appropriated 
                                                           under Public 
                                                            Law 94-447  
------------------------------------------------------------------------
Alabama.................................................     $23,520.000
Alaska..................................................       4,368,000
Arizona.................................................      22,512,000
Arkansas................................................      17,952,000
California..............................................               0
Colorado................................................      14,592,000
Connecticut.............................................               0
Delaware................................................               0
District of Columbia....................................               0
Florida.................................................      14,256,000
Georgia.................................................      27,360,000
Hawaii..................................................       2,880,000
Idaho...................................................       5,088,000
Illinois................................................               0
Indiana.................................................               0
Iowa....................................................       1,776,000
Kansas..................................................      13,920,000
Kentucky................................................      12,960,000
Louisiana...............................................      16,848,000
Maine...................................................               0
Maryland................................................       7,248,000
Massachusetts...........................................               0
Michigan................................................               0
Minnesota...............................................               0
Mississippi.............................................      12,720,000
Missouri................................................       7,056,000
Montana.................................................       3,024,000
Nebraska................................................       3,696,000
Nevada..................................................         624,000
New Hampshire...........................................               0
New Jersey..............................................               0
New Mexico..............................................       5,424,000
New York................................................               0
North Carolina..........................................      31,920,000
North Dakota............................................       5,088,000
Ohio....................................................               0
Oklahoma................................................      17,472,000
Oregon..................................................       1,344,000
Pennsylvania............................................               0
Rhode Island............................................               0
South Carolina..........................................      14,016,000
South Dakota............................................       4,272,000
Tennessee...............................................      14,448,000
Texas...................................................      88,608,000
Utah....................................................       8,928,000
Vermont.................................................               0
Virginia................................................               0
Washington..............................................      11,952,000
West Virginia...........................................      34,272,000
Wisconsin...............................................      12,720,000
Wyoming.................................................       4,368,000
Guam....................................................       1,440,000
Puerto Rico.............................................       5,856,000
Virgin Islands..........................................               0
American Samoa..........................................         768,000
Trust Territory of Pacific..............................       4,704,000
                                                         ---------------
      Total.............................................     480,000,000
------------------------------------------------------------------------



Sec. 35.910-7  Fiscal Year 1977 Supplemental Appropriations Act allotments.

    (a) Under title I, chapter V of Public Law 95-26, $1 billion is 
available for obligation. The allotments are to be used to carry out 
title II of the Act, excluding sections 206, 208, and 209. These 
allotments are available until expended but must be obligated by May 3, 
1980. After that date, unobligated balances will be subject to 
reallotment under section 205 (b) of the Act (see Sec. 35.910-2 (b)).
    (b) The allotments, computed by proportionally adjusting the table 
on page 16 of Senate Report No. 95-38, are based on the following four 
factors:
    (1) 25 percent on the States estimated 1975 census population;
    (2) 50 percent on each State's partial needs, i.e., on the cost of 
needed facilities in categories I, II, and IVB (secondary treatment, 
more stringent

[[Page 431]]

treatment required to meet water quality standards, and interceptor 
sewers and pumping stations), as shown in table IV of the May 6, 1975, 
EPA report, ``cost Estimates for Construction of Publicly Owned Waste 
Water Treatment Facilities--1974 Needs Survey'';
    (3) 25 percent on each State's full needs, i.e., on the cost of 
needed facilities in categories I, II, IIIA, IIIB, IVA, IVB, and V 
(secondary treatment, more stringent treatment required to meet water 
quality standards, infiltration and inflow correction, major sewer 
system rehabilitation, collector sewers, interceptor sewers, and pumping 
stations, and treatment of combined sewer overflows), as shown in table 
V of the EPA report noted in paragraph (b) (2) of this section; and
    (4) An allotment adjustment to insure that no State receives less 
than the one-third of 1 percent of the total amount allocated.
    (c) Based on paragraph (b) of this section, the total additional 
sums hereby allotted to the States are as follows:

------------------------------------------------------------------------
                          State                              Allotment  
------------------------------------------------------------------------
Alabama.................................................     $10,906,000
Alaska..................................................       4,759,000
Arizona.................................................       6,345,000
Arkansas................................................      10,807,000
California..............................................      82,391,000
Colorado................................................       8,031,000
Connecticut.............................................      12,195,000
Delaware................................................       3,966,000
District of Columbia....................................       3,966,000
Florida.................................................      35,792,000
Georgia.................................................      19,929,000
Hawaii..................................................       6,940,000
Idaho...................................................       4,065,000
Illinois................................................      52,151,000
Indiana.................................................      21,713,000
Iowa....................................................      11,005,000
Kansas..................................................      12,195,000
Kentucky................................................      14,971,000
Louisiana...............................................      12,493,000
Maine...................................................       5,453,000
Maryland................................................      37,874,000
Massachusetts...........................................      27,662,000
Michigan................................................      46,897,000
Minnesota...............................................      15,070,000
Mississippi.............................................       7,535,000
Missouri................................................      19,830,000
Montana.................................................       3,272,000
Nebraska................................................       6,147,000
Nevada..................................................       3,272,000
New Hampshire...........................................       6,742,000
New Jersey..............................................      47,591,000
New Mexico..............................................       3,272,000
New York................................................     105,294,000
North Carolina..........................................      20,722,000
North Dakota............................................       3,272,000
Ohio....................................................      55,522,000
Oklahoma................................................      13,484,000
Oregon..................................................       8,328,000
Pennsylvania............................................      46,698,000
Rhode Island............................................       3,966,000
South Carolina..........................................      13,088,000
South Dakota............................................       3,272,000
Tennessee...............................................      14,872,000
Texas...................................................      43,030,000
Utah....................................................       5,057,000
Vermont.................................................       3,272,000
Virginia................................................      22,011,000
Washington..............................................      15,368,000
West Virginia...........................................      21,614,000
Wisconsin...............................................      19,929,000
Wyoming.................................................       3,272,000
Guam....................................................         992,000
Puerto Rico.............................................       8,923,000
Virgin Islands..........................................         496,000
American Samoa..........................................         298,000
Trust Territory of Pacific..............................       1,983,000
                                                         ---------------
      Total.............................................   1,000,000,000
------------------------------------------------------------------------



Sec. 35.910-8  Allotments for fiscal years 1978-1981.

    (a) Unless later legislation requires otherwise, for each of the 
fiscal years 1978-1981, all funds appropriated under authorizations in 
section 207 of the Act will be distributed among the States based on the 
following percentages drawn from table 3 of Committee print numbered 95-
30 of the Committee on Public Works and Transportation of the House of 
Representatives:

------------------------------------------------------------------------
                            State                             Percentage
------------------------------------------------------------------------
Alabama.....................................................      1.2842
Alaska......................................................       .4235
Arizona.....................................................       .7757
Arkansas....................................................       .7513
California..................................................      7.9512
Colorado....................................................       .9187
Connecticut.................................................      1.1072
Delaware....................................................       .3996
District of Columbia........................................       .3193
Florida.....................................................      3.8366
Georgia.....................................................      1.9418
Hawaii......................................................       .7928
Idaho.......................................................       .4952
Illinois....................................................      5.1943
Indiana.....................................................      2.7678
Iowa........................................................      1.2953
Kansas......................................................       .8803
Kentucky....................................................      1.4618
Louisiana...................................................      1.2625
Maine.......................................................       .7495
Maryland....................................................      2.7777
Massachusetts...............................................      2.9542
Michigan....................................................      4.1306
Minnesota...................................................      1.8691
Mississippi.................................................       .9660
Missouri....................................................      2.4957
Montana.....................................................       .3472
Nebraska....................................................       .5505
Nevada......................................................       .4138
New Hampshire...............................................       .8810
New Jersey..................................................      3.5715
New Mexico..................................................       .3819
New York....................................................     10.6209
North Carolina..............................................      1.9808

[[Page 432]]

                                                                        
North Dakota................................................       .3107
Ohio........................................................      6.4655
Oklahoma....................................................       .9279
Oregon......................................................      1.2974
Pennsylvania................................................      4.3616
Rhode Island................................................       .5252
South Carolina..............................................      1.1766
South Dakota................................................       .3733
Tennessee...................................................      1.5486
Texas.......................................................      4.3634
Utah........................................................       .4457
Vermont.....................................................       .3845
Virginia....................................................      1.9602
Washington..................................................      1.7688
West Virginia...............................................      1.7903
Wisconsin...................................................      1.9503
Wyoming.....................................................       .3003
Guam........................................................       .0744
Puerto Rico.................................................      1.1734
Virgin Islands..............................................       .0378
American Samoa..............................................       .0616
Trust Territory of Pacific..................................       .1530
                                                             -----------
      Total.................................................      100.00
------------------------------------------------------------------------

    (b) Based on paragraph (a) of this section, and table 4 of the 
committee print, the following authorizations are allotted among the 
States subject to the limitations of paragraph (c) of this section:

------------------------------------------------------------------------
                                                            For each of 
                                            For fiscal      the fiscal  
                  State                      year 1978      years 1979, 
                                                            1980, 1981  
------------------------------------------------------------------------
Alabama.................................     $57,789,000     $64,210,000
Alaska..................................      19,057,500      21,175,000
Arizona.................................      34,906,500      38,785,000
Arkansas................................      33,808,500      37,565,000
California..............................     357,804,000     397,560,000
Colorado................................      41,341,500      45,935,000
Connecticut.............................      49,824,000      55,360,000
Delaware................................      17,982,000      19,980,000
District of Columbia....................      14,368,500      15,965,000
Florida.................................     172,647,000     191,830,000
Georgia.................................      87,381,000      97,090,000
Hawaii..................................      35,676,000      39,640,000
Idaho...................................      22,284,000      24,760,000
Illinois................................     233,743,500     259,715,000
Indiana.................................     124,551,000     138,390,000
Iowa....................................      58,288,500      64,765,000
Kansas..................................      39,613,500      44,015,000
Kentucky................................      65,781,000      73,090,000
Louisiana...............................      56,812,500      63,125,000
Maine...................................      33,727,500      37,475,000
Maryland................................     124,996,500     138,885,000
Massachusetts...........................     132,939,000     147,710,000
Michigan................................     185,877,000     206,530,000
Minnesota...............................      84,109,500      93,455,000
Mississippi.............................      43,470,000      48,300,000
Missouri................................     112,306,500     124,785,000
Montana.................................      15,624,000      17,360,000
Nebraska................................      24,772,500      27,525,000
Nevada..................................      18,621,000      20,690,000
New Hampshire...........................      39,645,000      44,050,000
New Jersey..............................     160,717,500     178,575,000
New Mexico..............................      17,185,500      19,095,000
New York................................     477,940,500     531,045,000
North Carolina..........................      89,136,000      99,040,000
North Dakota............................      13,981,500      15,535,000
Ohio....................................     290,947,500     323,275,000
Oklahoma................................      41,755,500      46,395,000
Oregon..................................      58,383,000      64,870,000
Pennsylvania............................     196,272,000     218,080,000
Rhode Island............................      23,634,000      26,260,000
South Carolina..........................      52,947,000      58,830,000
South Dakota............................      16,798,500      18,665,000
Tennessee...............................      69,687,000      77,430,000
Texas...................................     196,353,000     218,170,000
Utah....................................      20,056,500      22,285,000
Vermont.................................      17,302,500      19,225,000
Virginia................................      88,209,000      98,010,000
Washington..............................      79,596,000      88,440,000
West Virginia...........................      80,563,500      89,515,000
Wisconsin...............................      87,763,500      97,515,000
Wyoming.................................      13,513,500      15,015,000
Guam....................................       3,348,000       3,720,000
Puerto Rico.............................      52,803,000      58,670,000
Virgin Islands..........................       1,701,000       1,890,000
American Samoa..........................       2,772,000       3,080,000
Trust Territory of the Pacific Islands..       6,885,000       7,650,000
                                         -------------------------------
      Total.............................   4,500,000,000   5,000,000,000
------------------------------------------------------------------------

    (c) The authorizations in paragraph (b) of this section depend on 
appropriation. Therefore, the Regional Administrator may not obligate 
any portion of any authorization for a fiscal year until a law is 
enacted appropriating part or all of the sums authorized for that fiscal 
year. If sums appropriated are less than the sums authorized for a 
fiscal year, EPA will apply the percentages in paragraph (a) of this 
section to distribute all appropriated sums among the States, and 
promptly will notify each State of its share. The Regional Administrator 
may not obligate more than the State's share of appropriated sums.
    (d) If supplementary funds are appropriated in any fiscal year under 
section 205(e) of the Act to carry out the purposes of this paragraph, 
no State shall receive less than one-half of 1 percent of the total 
allotment among all States for that fiscal year, except that in the case 
of Guam, the Virgin Islands, American Samoa, and the Trust Territories 
not more than thirty-three one-hundredths of 1 percent of the total 
allotment shall be allotted to all four of those jurisdictions. If for 
any fiscal year the amount appropriated to carry out this paragraph is 
less than the full amount needed, the following States will share in any 
funds appropriated for the purposes of this paragraph in the following 
percentages, drawn from the

[[Page 433]]

note to table 3 of committee print numbered 95-30 of the Committee on 
Public Works and Transportation of the House of Representatives:

------------------------------------------------------------------------
                            State                             Percentage
------------------------------------------------------------------------
Alaska......................................................      5.4449
Delaware....................................................      7.1459
District of Columbia........................................     12.8612
Idaho.......................................................       .3416
Montana.....................................................     10.8755
Nevada......................................................      6.1352
New Mexico..................................................      8.4057
North Dakota................................................     13.4733
South Dakota................................................      9.0178
Utah........................................................      3.8648
Vermont.....................................................      8.2206
Wyoming.....................................................     14.2135
                                                             -----------
      Total.................................................    100.0000
------------------------------------------------------------------------



Sec. 35.910-9  Allotment of Fiscal Year 1978 appropriation.

    (a) Public Law 95-240 appropriated $4.5 billion. These allotments 
are available until expended but must be obligated by September 30, 
1979. After that date unobligated balances will be reallotted under 
section 205(b) of the Act (see Sec. 35.910-2(b)).
    (b) These sums were allotted to the States as shown in Sec. 35.910-
8(b).

[43 FR 56200, Nov. 30, 1978]



Sec. 35.910-10  Allotment of Fiscal Year 1979 appropriation.

    (a) Title II of Public Law 95-392 appropriated $4.2 billion. These 
allotments are available until expended but must be obligated by 
September 30, 1980. After that date, unobligated balances will be 
reallotted under section 205(b) of the Act (see Sec. 35.910-2(b)).
    (b) The allotments were computed by applying the percentages in 
Sec. 35.910-8(a) and (b) to the funds appropriated for FY 1979 and 
rounding to the nearest hundred dollars.
    (c) The $4.2 billion are allotted as follows:

------------------------------------------------------------------------
                                                            Allotments  
                                                            from funds  
                          State                            appropriated 
                                                           under Pub. L.
                                                              95-392    
------------------------------------------------------------------------
Alabama.................................................     $53,189,100
Alaska..................................................      20,709,000
Arizona.................................................      32,128,000
Arkansas................................................      31,117,400
California..............................................     329,323,400
Colorado................................................      38,050,800
Connecticut.............................................      45,858,100
Delaware................................................      20,709,000
District of Columbia....................................      20,709,000
Florida.................................................     158,904,600
Georgia.................................................      80,425,600
Hawaii..................................................      32,836,300
Idaho...................................................      20,709,000
Illinois................................................     215,137,900
Indiana.................................................     114,637,000
Iowa....................................................      53,648,800
Kansas..................................................      36,460,300
Kentucky................................................      60,545,000
Louisiana...............................................      52,290,300
Maine...................................................      31,042,900
Maryland................................................     115,047,000
Massachusetts...........................................     122,357,300
Michigan................................................     171,081,500
Minnesota...............................................      77,414,600
Mississippi.............................................      40,009,900
Missouri................................................     103,367,100
Montana.................................................      20,709,000
Nebraska................................................      22,800,700
Nevada..................................................      20,709,000
New Hampshire...........................................      36,489,300
New Jersey..............................................     147,924,700
New Mexico..............................................      20,709,000
New York................................................     439,897,200
North Carolina..........................................      82,040,900
North Dakota............................................      20,709,000
Ohio....................................................     267,788,600
Oklahoma................................................      38,431,900
Oregon..................................................      53,735,800
Pennsylvania............................................     180,649,100
Rhode Island............................................      21,752,800
South Carolina..........................................      48,732,500
South Dakota............................................      20,709,000
Tennessee...............................................      64,140,000
Texas...................................................     180,723,600
Utah....................................................      20,709,000
Vermont.................................................      20,709,000
Virginia................................................      81,187,700
Washington..............................................      73,260,300
West Virginia...........................................      74,150,800
Wisconsin...............................................      80,777,700
Wyoming.................................................      20,709,000
American Samoa..........................................       2,551,400
Guam....................................................       3,081,500
Northern Mariana Islands................................         570,300
Puerto Rico.............................................      48,600,000
Trust Territory of Pacific..............................       5,766,700
Virgin Islands..........................................       1,565,600
                                                         ---------------
      Total.............................................   4,200,000,000
------------------------------------------------------------------------

[43 FR 56201, Nov. 30, 1978, as amended at 44 FR 37595, June 27, 1979; 
44 FR 39339, July 5, 1979]



Sec. 35.910-11  Allotment of Fiscal Year 1980 appropriation.

    (a) Title II of Public Law 96-103 appropriated $3.4 billion. These 
allotments are available until expended but must be obligated by 
September 30, 1981. After that date, unobligated balances will be 
reallotted under section 205(b) of the Act (see Sec. 35.910-2(b)).

[[Page 434]]

    (b) The allotments were computed by applying the percentages in 
Sec. 35.910-8 (a) and (d) to the funds appropriated for FY 1980 and 
rounding to the nearest hundred dollars.
    (c) The $3.4 billion are alloted as follows:

------------------------------------------------------------------------
                                                            Allotments  
                                                            from funds  
                          State                            appropriated 
                                                           under Pub. L.
                                                              95-372    
------------------------------------------------------------------------
Alabama.................................................     $43,057,800
Alaska..................................................      16,764,500
Arizona.................................................      26,008,400
Arkansas................................................      25,190,300
California..............................................     266,595,100
Colorado................................................      30,803,000
Connecticut.............................................      37,123,200
Delaware................................................      16,764,500
District of Columbia....................................      16,764,500
Florida.................................................     128,637,000
Georgia.................................................      65,106,400
Hawaii..................................................      26,581,700
Idaho...................................................      16,764,500
Illinois................................................     174,159,300
Indiana.................................................      92,801,300
Iowa....................................................      43,430,000
Kansas..................................................      29,515,500
Kentucky................................................      49,012,600
Louisiana...............................................      42,330,300
Maine...................................................      25,129,900
Maryland................................................      93,133,300
Massachusetts...........................................      99,051,100
Michigan................................................     138,494,500
Minnesota...............................................      62,668,900
Mississippi.............................................      32,388,900
Missouri................................................      83,678,100
Montana.................................................      16,764,500
Nebraska................................................      18,457,700
Nevada..................................................      16,764,500
New Hampshire...........................................      29,539,000
New Jersey..............................................     119,748,500
New Mexico..............................................      16,764,500
New York................................................     356,107,300
North Carolina..........................................      66,414,100
North Dakota............................................      16,764,500
Ohio....................................................     216,781,200
Oklahoma................................................      31,111,500
Oregon..................................................      43,500,400
Pennsylvania............................................     146,239,700
Rhode Island............................................      17,609,400
South Carolina..........................................      39,450,100
South Dakota............................................      16,764,500
Tennessee...............................................      51,922,900
Texas...................................................     146,300,100
Utah....................................................      16,764,500
Vermont.................................................      16,764,500
Virginia................................................      65,723,400
Washington..............................................      59,305,900
West Virginia...........................................      60,026,800
Wisconsin...............................................      65,391,400
Wyoming.................................................      16,764,500
American Samoa..........................................       2,065,400
Guam....................................................       2,494,500
Puerto Rico.............................................      39,342,800
Trust Terr..............................................       4,667,200
Virgin Islands..........................................       1,267,400
Northern Marianas.......................................         462,700
                                                         ---------------
      Total.............................................   3,400,000,000
------------------------------------------------------------------------

[45 FR 16486, Mar. 14, 1980]



Sec. 35.910-12  Reallotment of deobligated funds of fiscal year 1978.

    (a) Of the 4.5 billion appropriated by Public Law 95-240 for fiscal 
year 1978, $23,902,130 remained unobligated as of September 30, 1979 and 
thereby became subject to reallotment.
    (b) The reallotment was computed by applying the percentages in 
Sec. 35.910-8(a), adjusted to account for the absence of Ohio and 
readjusted to comply with the requirements of Sec. 35.910(d) 
establishing a minimum allotment of .5 percent.
    (c) These funds are added to the fiscal year 1980 allotments and 
will remain available through September 30, 1981 (see Sec. Sec. 35.910-
2(b) and 35.910-8).
    (d) The $23,902,130 is allotted as follows:

------------------------------------------------------------------------
                           State                                Amount  
------------------------------------------------------------------------
Alabama....................................................     $324,543
Alaska.....................................................      118,190
Arizona....................................................      196,050
Arkansas...................................................      189,880
California.................................................    2,009,389
Colorado...................................................      232,191
Connecticut................................................      279,813
Delaware...................................................      118,190
District of Columbia.......................................      118,190
Florida....................................................      969,582
Georgia....................................................      490,736
Hawaii.....................................................      200,367
Idaho......................................................      125,148
Illinois...................................................    1,312,681
Indiana....................................................      699,465
Iowa.......................................................      327,345
Kansas.....................................................      222,494
Kentucky...................................................      369,430
Louisiana..................................................      319,073
Maine......................................................      189,428
Maryland...................................................      701,974
Massachusetts..............................................      746,591
Michigan...................................................    1,043,875
Minnesota..................................................      472,360
Mississippi................................................      244,147
Missouri...................................................      630,710
Montana....................................................      118,190
Nebraska...................................................      139,138
Nevada.....................................................      118,190
New Hampshire..............................................      222,653
New Jersey.................................................      902,590
New Mexico.................................................      118,190
New York...................................................    2,684,060
North Carolina.............................................      500,590
North Dakota...............................................      118,190
Oklahoma...................................................      234,496
Oregon.....................................................      327,888
Pennsylvania...............................................    1,102,234
Rhode Island...............................................      132,719
South Carolina.............................................      297,352
South Dakota...............................................      118,190
Tennessee..................................................      391,354
Texas......................................................    1,102,708
Utah.......................................................      118,190
Vermont....................................................      118,190
Virginia...................................................      495,392
Washington.................................................      447,046

[[Page 435]]

                                                                        
West Virginia..............................................      452,493
Wisconsin..................................................      492,883
Wyoming....................................................      118,190
Guam.......................................................       18,805
Puerto Rico................................................      296,561
Virgin Islands.............................................        9,561
American Samoa.............................................       15,573
Tr. Terr. of Pac. Islds....................................       35,192
N. Mariana Islds...........................................        3,480
                                                            ------------
      Total................................................   23,902,130
------------------------------------------------------------------------


[45 FR 83497, Dec. 19, 1980. Correctly designated at 46 FR 9947, Jan. 
30, 1981]



Sec. 35.912  Delegation to State agencies.

    EPA's policy is to maximize the use of staff capabilities of State 
agencies. Therefore, in the implementation of the construction grant 
program, optimum use will be made of available State and Federal 
resources. This will eliminate unnecessary duplicative reviews of 
documents required in the processing of construction grant awards. 
Accordingly, the Regional Administrator may enter into a written 
agreement, where appropriate, with a State agency to authorize the State 
agency's certification of the technical or administrative adequacy of 
specifically required documents. The agreement may provide for the 
review and certification of elements of: (a) Facilities plans (step 1), 
(b) plans and specifications (step 2), (c) operation and maintenance 
manuals, and (d) such other elements as the Regional Administrator 
determines may be appropriately delegated as the program permits and 
State competence allows. The agreement will define requirements which 
the State will be expected to fulfill as part of its general 
responsibilities for the conduct of an effective preaward applicant 
assistance program; compensation for this program is the responsibility 
of the State. The agreement will also define specific duties regarding 
the review of identified documents prerequisite to the receipt of grant 
awards. A certification agreement must provide that an applicant or 
grantee may request review by the Regional Administrator of an adverse 
recommendation by a State agency. Delegation activities are compensable 
by EPA only under section 106 of the Act or subpart F of this part.



Sec. 35.915  State priority system and project priorty list.

    Construction grants will be awarded from allotments according to the 
State priority list, based on the approved State priority system. The 
State priority system and list must be designed to achieve optimum water 
quality management consistent with the goals and requirements of the 
Act.
    (a) State priority system. The State priority system describes the 
methodology used to rate and rank projects that are considered eligible 
for assistance. It also sets forth the administrative, management, and 
public participation procedures required to develop and revise the State 
project priority list. In developing its annual priority list, the State 
must consider the construction grant needs and priorities set forth in 
certified and approved State and areawide water quality management (WQM) 
plans. The State shall hold a public hearing before submission of the 
priority system (or revision thereto). Before the hearing, a fact sheet 
describing the proposed system (including rating and ranking criteria) 
shall be distributed to the public. A summary of State responses to 
public comment and to any public hearing testimony shall be prepared and 
included in the priority system submission. The Regional Administrator 
shall review and approve the State priority system for procedural 
completeness, insuring that it is designed to obtain compliance with the 
enforceable requirements of the Act as defined in Sec. 35.905. The 
Regional Administrator may exempt grants for training facilities under 
section 109(b)(1) of the Act and Sec. 35.930-1(b) from these 
requirements.
    (1) Project rating criteria. (i) The State priority system shall be 
based on the following criteria:
    (A) The severity of the pollution problem;
    (B) The existing population affected;
    (C) The need for preservation of high quality waters; and
    (D) At the State's option, the specific category of need that is 
addressed.
    (ii) The State will have sole authority to determine the priority 
for each category of need. These categories

[[Page 436]]

comprise mutually exclusive classes of facilities and include:
    (A) Category I--Secondary treatment;
    (B) Category II--More stringent treatment;
    (C) Category IIIA--Infiltration/inflow correction;
    (D) Category IIIB--Sewer system replacement or major rehabilitation;
    (E) Category IVA--New collectors and appurtenances;
    (F) Category IVB--New interceptors and appurtenances; and
    (G) Category V--Correction of combined sewer overflows.
    (iii) Step 2, step 3 and step 2+3 projects utilizing processes and 
techniques meeting the innovative and alternative guidelines in Appendix 
E of this part may receive higher priority. Also 100 percent grants for 
projects that modify or replace malfunctioning treatment works 
constructed with an 85 percent grant may receive a higher priority.
    (iv) Other criteria, consistent with these, may be considered 
(including the special needs of small and rural communities). The State 
shall not consider: The project area's development needs not related to 
pollution abatement; the geographical region within the State; or future 
population growth projections.
    (2) Criteria assessment. The State shall have authority to determine 
the relative influence of the rating criteria used for assigning project 
priority. The criteria must be clearly delineated in the approved State 
priority system and applied consistently to all projects. A project on 
the priority list shall generally retain its priority rating until an 
award is made.
    (b) State needs inventory. The State shall maintain a listing, 
including costs by category, of all needed treatment works. The most 
recent needs inventory, prepared in accordance with section 516(b)(1)(B) 
of the Act, should be used for this purpose. This State listing should 
be the same as the needs inventory and fulfills similar requirements in 
the State WQM planning process. The State project priority list shall be 
consistent with the needs inventory.
    (c) State project priority list. The State shall prepare and submit 
annually a ranked priority listing of projects for which Federal 
assistance is expected during the 5-year planning period starting at the 
beginning of the next fiscal year. The list's fundable portion shall 
include those projects planned for award during the first year of the 5-
year period (hereinafter called the funding year). The fundable portion 
shall not exceed the total funds expected to be available during the 
year less all applicable reserves provided in Sec. 35.915-1 (a) through 
(d). The list's planning portion shall include all projects outside the 
fundable portion that may, under anticipated allotment levels, receive 
funding during the 5-year period. The Administrator shall provide annual 
guidance to the States outlining the funding assumptions and other 
criteria useful in developing the 5-year priority list.
    (1) Project priority list development. The development of the 
project priority list shall be consistent with the rating criteria 
established in the approved priority system, in accordance with the 
criteria in paragraph (a)(1) of this section. In ranking projects, 
States must also consider the treatment works and step sequence; the 
allotment deadline; total funds available; and other management criteria 
in the approved State priority system. In developing its annual priority 
list, the State must consider the construction grant needs and 
priorities set forth in certified and approved State and areawide WQM 
plans. The Regional Administrator may request that a State provide 
justification for the rating or ranking established for specific 
project(s).
    (2) Project priority list information. The project priority list 
shall include the information for each project that is set out below for 
projects on the fundable portion of the list. The Administrator shall 
issue specific guidance on these information requirements for the 
planning portion of the list, including phase-in procedures for the 
fiscal year 1979 priority planning process.
    (i) State assigned EPA project number;
    (ii) Legal name and address of applicant;

[[Page 437]]

    (iii) Short project name or description;
    (iv) Priority rating and rank of each project, based on the approved 
priority system;
    (v) Project step number (step 1, 2, 3, or 2+3);
    (vi) Relevant needs authority/facility number(s);
    (vii) NPDES number (as appropriate);
    (viii) Parent project number (i.e., EPA project number for 
predecessor project);
    (ix) For step 2, 3, or 2+3 projects, indication of alternative 
system for small community;
    (x) For step 2, 3, or 2+3 projects, that portion (if any) of 
eligible cost to apply to alternative techniques;
    (xi) For step 2, 3, or 2+3 projects, that portion (if any) of 
eligible cost to apply to innovative processes;
    (xii) For step 3 or 2+3 projects, the eligible costs in categories 
IIIB, IV, and V (see Sec. 35.915(a)(1)(ii));
    (xiii) Total eligible cost;
    (xiv) Date project is expected to be certified by State to EPA for 
funding;
    (xv) Estimated EPA assistance (not including potential grant 
increase from the reserve in Sec. 35.915-1(b)); and
    (xvi) Indication that the project does or does not satisfy the 
enforceable requirements provision, including (as appropriate) funding 
estimates for those portions which do not meet the enforceable 
requirements of the Act.
    (d) Public participation. Before the State submits its annual 
project priority list to the Regional Administrator, the State shall 
insure that adequate public participation (including a public hearing) 
has taken place as required by Subpart G of this part. Before the public 
hearing, the State shall circulate information about the priority list 
including a description of each proposed project and a statement 
concerning whether or not it is necessary to meet the enforceable 
requirements of the Act. The information on the proposed priority list 
under paragraph (c)(2) of this section may be used to fulfill these 
requirements. This public hearing may be conducted jointly with any 
regular public meeting of the State agency. The public must receive 
adequate and timely statewide notice of the meeting (including 
publication of the proposed priority list) and attendees at the meeting 
must receive adequate opportunity to express their views concerning the 
list. Any revision of the State priority list (including project bypass 
and the deletion or addition of projects) requires circulation for 
public comment and a public hearing unless the State agency and the 
Regional Administrator determine that the revision is not significant. 
The approved State priority system shall describe the public 
participation policy and procedures applicable to any proposed revision 
to the priority list.
    (e) Submission and review of project priority list. The State shall 
submit the priority list as part of the annual State program plan under 
Subpart G of this part. A summary of State agency response to public 
comment and hearing testimony shall be prepared and submitted with the 
priority list. The Regional Administrator will not consider a priority 
list to be final until the public participation requirements are met and 
all information required for each project has been received. The 
Regional Administrator will review the final priority list within 30 
days to insure compliance with the approved State priority system. No 
project may be funded until this review is complete.
    (f) Revision of the project priority list. The State may modify the 
project priority list at any time during the program planning cycle in 
accordance with the public participation requirements and the procedures 
established in the approved State priority system. Any modification 
(other than clerical) to the priority list must be clearly documented 
and promptly reported to the Regional Administrator. As a minimum, each 
State's priority list management procedure must provide for the 
following conditions:
    (1) Project bypass. A State may bypass a project on the fundable 
portion of the list after it gives written notice to the municipality 
and the NPDES authority that the State has determined that the project 
to be bypassed will not be ready to proceed during the funding year. 
Bypassed projects shall retain their relative priority rating for 
consideration in the future year allotments. The

[[Page 438]]

highest ranked projects on the planning portion of the list will replace 
bypassed projects. Projects considered for funding in accordance with 
this provision must comply with paragraph (g) of this section.
    (2) Additional allotments. If a State receives any additional 
allotment(s), it may fund projects on the planning portion of the 
priority list without further public participation if:
    (i) The projects on the planning portion have met all administrative 
and public participation requirements outlined in the approved State 
priority system; and
    (ii) The projects included within the fundable range are the highest 
priority projects on the planning portion.

If sufficient projects that meet these conditions are not available on 
the planning portion of the list, the State shall follow the procedures 
outlined in paragraph (e) of this section to add projects to the 
fundable portion of the priority list.
    (3) Project removal. A State may remove a project from the priority 
list only if:
    (i) The project has been fully funded;
    (ii) The project is no longer entitled to funding under the approved 
priority system;
    (iii) The Regional Administrator has determined that the project is 
not needed to comply with the enforceable requirements of the Act; or
    (iv) The project is otherwise ineligible.
    (g) Regional Administrator review for compliance with the 
enforceable requirements of the Act. (1) Unless otherwise provided in 
paragraph (g)(2) of this section, the Regional Administrator may propose 
the removal of a specific project or portion thereof from the State 
project priority list during or after the initial review where there is 
reason to believe that it will not result in compliance with the 
enforceable requirements of the Act. Before making a final 
determination, the Regional Administrator will initiate a public hearing 
on this issue. Questioned projects shall not be funded during this 
administrative process. Consideration of grant award will continue for 
those projects not at issue in accordance with all other requirements of 
this section.
    (i) The Regional Administrator shall establish the procedures for 
the public notice and conduct of any such hearing, or, as appropriate, 
the procedures may be adapted from existing agency procedures such as 
Sec. 6.400 or Sec. Sec. 123.32 and 123.34 of this chapter. The 
procedures used must conform to minimum Agency guidelines for public 
hearings under part 25 of this chapter.
    (ii) Within 30 days after the date of the hearing, the Regional 
Administrator shall transmit to the appropriate State agency a written 
determination about the questioned projects. If the Regional 
Administrator determines that the project will not result in compliance 
with the enforceable requirements of the Act, the State shall remove the 
project from the priority list and modify the priority list to reflect 
this action. The Regional Administrator's determination will constitute 
the final agency action, unless the State or municipality files a notice 
of appeal under part 30, subpart J of this subchapter.
    (2) The State may use 25 percent of its funds during each fiscal 
year for projects or portions of projects in categories IIIB, IVA, IVB, 
and V (see Sec. 35.915(a)(1)(ii)). These projects must be eligible for 
Federal funding to be included on the priority list. EPA will generally 
not review these projects under paragraph (g)(1) of this section to 
determine if they will result in compliance with the enforceable 
requirements of the Act. The Regional Administrator will, however, 
review all projects or portions thereof which would use funds beyond the 
25-percent level according to the criteria in paragraph (g)(1) of this 
section.
    (h) Regional Administrator review for eligibility. If the Regional 
Administrator determines that a project on the priority list is not 
eligible for assistance under this subpart, the State and municipality 
will be promptly advised and the State will be required to modify its 
priority list accordingly. Elimination of any project from the priority 
list shall be final and conclusive unless the State or municipality 
files a notice

[[Page 439]]

of appeal under part 30, subpart J of this subchapter.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 37595, June 27, 1979; 
44 FR 39339, July 5, 1979]



Sec. 35.915-1  Reserves related to the project priority list.

    In developing the fundable portion of the priority list, the State 
shall provide for the establishment of the several reserves required or 
allowed under this section. The State shall submit a statement 
specifying the amount to be set aside for each reserve with the final 
project priority list.
    (a) Reserve for State management assistance grants. The State may 
(but need not) propose that the Regional Administrator set aside from 
each allotment a reserve not to exceed 2 percent or $400,000, whichever 
is greater, for State management assistance grants under subpart F of 
this part. Grants may be made from these funds to cover the reasonable 
costs of administering activities delegated to a State. Funds reserved 
for this purpose that are not obligated by the end of the allotment 
period will be added to the amounts last allotted to a State. These 
funds shall be immediately available for obligation to projects in the 
same manner and to the same extent as the last allotment.
    (b) Reserve for innovative and alternative technology project grant 
increase. Each State shall set aside from its annual allotment a 
specific percentage to increase the Federal share of grant awards from 
75 percent to 85 percent of the eligible cost of construction (under 
Sec. 35.908(b)(1)) for construction projects which use innovative or 
alternative waste water treatment processes and techniques. The set-
aside amount shall be 2 percent of the State's allotment for each of 
fiscal years 1979 and 1980, and 3 percent for fiscal year 1981. Of this 
amount not less than one-half of 1 percent of the State's allotment 
shall be set aside to increase the Federal grant share for projects 
utilizing innovative processes and techniques. Funds reserved under this 
section may be expended on projects for which facilities plans were 
initiated before fiscal year 1979. These funds shall be reallotted if 
not used for this purpose during the allotment period.
    (c) Reserve for grant increases. The State shall set aside not less 
than 5 percent of the total funds available during the priority list 
year for grant increases (including any funds necessary for development 
of municipal pretreatment programs) for projects awarded assistance 
under Sec. 35.935-11. The funds reserved for this purpose shall be 
reallotted if not obligated. Therefore, if they are not needed for grant 
increases they should be released for funding additional projects before 
the reallotment deadline.
    (d) Reserve for step 1 and step 2 projects. The State may (but need 
not) set aside up to 10 percent of the total funds available in order to 
provide grant assistance to step 1 and step 2 projects that may be 
selected for funding after the final submission of the project priority 
list. The funds reserved for this purpose shall be reallotted if not 
obligated. Therefore, they should be released for funding additional 
projects before the reallotment deadline.
    (e) Reserve for alternative systems for small communities. Each 
State with a rural population of 25 percent or more (as determined by 
population estimates of the Bureau of Census) shall set aside an amount 
equal to 4 percent of the State's annual allotment, beginning with the 
fiscal year 1979 allotment. The set-aside amount shall be used for 
funding alternatives to conventional treatment works for small 
communities. The Regional Administrator may authorize, at the request of 
the Governor of any non-rural State, a reserve of up to 4 percent of 
that State's allotment for alternatives to conventional treatment works 
for small communities. For the purposes of this paragraph, the 
definition of a small community is any municipality with a population of 
3,500 or less, or highly dispersed sections of larger municipalities, as 
determined by the Regional Administrator. In States where the reserve is 
mandatory, these funds shall be reallotted if not obligated during the 
allotment period. In States where the reserve is optional, these funds 
should be released for funding projects before the reallotment deadline.


[[Page 440]]





Sec. 35.917  Facilities planning (step 1).

    (a) Sections 35.917 through 35.917-9 establish the requirements for 
facilities plans.
    (b) Facilities planning consists of those necessary plans and 
studies which directly relate to the construction of treatment works 
necessary to comply with sections 301 and 302 of the Act. Facilities 
planning will demonstrate the need for the proposed facilities. Through 
a systematic evaluation of feasible alternatives, it will also 
demonstrate that the selected alternative is cost-effective, i.e., is 
the most economical means of meeting established effluent and water 
quality goals while recognizing environmental and social considerations. 
(See appendix A to this subpart.)
    (c) EPA requires full compliance with the facilities planning 
provisions of this subpart before award of step 2 or step 3 grant 
assistance. (Facilities planning initiated before May 1, 1974, may be 
accepted under regulations published on February 11, 1974, if the step 2 
or step 3 grant assistance is awarded before April 1, 1980.)
    (d) Grant assistance for step 2 or step 3 may be awarded before 
approval of a facilities plan for the entire geographic area to be 
served by the complete waste treatment system of which the proposed 
treatment works will be an integral part if:
    (1) The Regional Administrator determines that applicable statutory 
requirements have been met (see Sec. Sec. 35.925-7 and 35.925-8); that 
the facilities planning related to the proposed step 2 or step 3 project 
has been substantially completed; and that the step 2 or step 3 project 
for which grant assistance is made will not be significantly affected by 
the completion of the facilities plan and will be a component part of 
the complete system; and
    (2) The applicant agrees to complete the facilities plan on a 
schedule the State accepts (subject to the Regional Administrator's 
approval); the schedule shall be inserted as a special condition in the 
grant agreement.
    (e) Facilities planning may not be initiated before award of a step 
1 grant or written approval of a plan of study (see Sec. 35.920-3(a)(1)) 
accompanied by reservation of funds for a step 1 grant (see 
Sec. Sec. 35.925-18 and 35.905). Facility planning must be based on load 
allocations, delineation of facility planning areas and population 
projection totals and disaggregations in approved water quality 
management (WQM) plans. (See paragraph 8a(3) of appendix A.) After 
October 1, 1979, the Regional Administrator shall not approve grant 
assistance for any project under this subpart if such facility-related 
information is not available in an approved WQM plan, unless the 
Regional Administrator determines, in writing, based on information 
submitted by the State or the grantee, that the facility-related 
information was not within the scope of the WQM work program, or that 
award of the grant is necessary to achieve water quality goals of the 
Act.
    (f) If the information required as part of a facilities plan has 
been developed separately, the facilities plan should incorporate it by 
reference. Planning which has been previously or collaterally 
accomplished under local, State, or Federal programs will be utilized 
(not duplicated).



Sec. 35.917-1  Content of facilities plan.

    Facilities planning must address each of the following to the extent 
considered appropriate by the Regional Administrator:
    (a) A description of the treatment works for which construction 
drawings and specifications are to be prepared. This description shall 
include preliminary engineering data, cost estimates for design and 
construction of the treatment works, and a schedule for completion of 
design and construction. The preliminary engineering data may include, 
to the extent appropriate, information such as a schematic flow diagram, 
unit processes, design data regarding detention times, flow rates, 
sizing of units, etc.
    (b) A description of the selected complete waste treatment system(s) 
of which the proposed treatment works is a part. The description shall 
cover all elements of the system, from the service area and collection 
sewers, through treatment, to the ultimate discharge of treated waste 
waters and management and disposal of sludge. Planning area maps must 
include major components of existing and proposed treatment

[[Page 441]]

works. For individual systems, planning area maps must include those 
individual systems which are proposed for funding under Sec. 35.918.
    (c) Infiltration/inflow documentation in accordance with Sec. 35.927 
et seq.
    (d) A cost-effectiveness analysis of alternatives for the treatment 
works and for the complete waste treatment system(s) of which the 
treatment works is a part. The selection of the system(s) and the choice 
of the treatment works for which construction drawings and 
specifications are to be prepared shall be based on the results of the 
cost-effectiveness analysis. (See Appendix A to this subpart.) This 
analysis shall include:
    (1) The relationship of the size and capacity of alternative works 
to the needs to be served, including reserve capacity;
    (2) An evaluation of alternative flow and waste reduction measures, 
including nonstructural methods;
    (3) An evaluation of improved effluent quality attainable by 
upgrading the operation and maintenance and efficiency of existing 
facilities as an alternative or supplement to construction of new 
facilities;
    (4) An evaluation of the capability of each alternative to meet 
applicable effluent limitations. (All step 2, step 3, or step 2+3 
projects shall be based on application of best practicable waste 
treatment technology (BPWTT), as a minimum. Where application of BPWTT 
would not meet water quality standards, the facilities plan shall 
provide for attaining such standards. Such provision shall consider the 
alternative of treating combined sewer overflows.);
    (5) An identification of, and provision for, applying BPWTT as 
defined by the Administrator, based on an evaluation of technologies 
included under each of the following waste treatment management 
techniques:
    (i) Biological or physical-chemical treatment and discharge to 
receiving waters;
    (ii) Systems employing the reuse of waste water and recycling of 
pollutants;
    (iii) Land application techniques;
    (iv) Systems including revenue generating applications; and
    (v) Onsite and nonconventional systems;
    (6) An evaluation of the alternative methods for the ultimate 
disposal of treated waste water and sludge materials resulting from the 
treatment process, and a justification for the method(s) chosen;
    (7) An adequate assessment of the expected environmental impact of 
alternatives (including sites) under part 6 of this chapter. This 
assessment shall be revised as necessary to include information 
developed during subsequent project steps;
    (8) For facilities planning begun after September 30, 1978, whether 
or not prepared under a step 1 grant, an analysis of innovative and 
alternative treatment processes and techniques that reclaim and reuse 
water, productively recycle waste water constituents, eliminate the 
discharge of pollutants, recover energy or otherwise achieve the 
benefits described in appendix E. The provisions of this paragraph are 
encouraged in all cases. They are required in facilities planning for 
new treatment works and for treatment works which are being acquired, 
altered, modified, improved, or extended either to handle a significant 
increase in the volume of treated waste or to reduce significantly the 
pollutant discharges from the system. Where certain categories of 
alternative technologies may not be generally applicable because of 
prevailing climatic or geological conditions, a detailed analysis of 
these categories of alternative technologies is not required. However, 
the reason for such a rejection must be fully substantiated in the 
facilities plan;
    (9) For facilities planning begun after September 30, 1978, whether 
or not prepared under a step 1 grant, an analysis of the primary energy 
requirements (operational energy inputs) for each system considered. The 
alternative selected shall propose adoption of measures to reduce energy 
consumption or to increase recovery as long as such measures are cost-
effective. Where processes or techniques are claimed to be innovative 
technology on the basis of energy reduction criterion contained in 
paragraph 6e(2) of appendix E to this subpart, a detailed energy 
analysis

[[Page 442]]

shall be included to substantiate the claim to the satisfaction of the 
Regional Administrator.
    (e) An identification of effluent discharge limitations or, where a 
permit has been issued, the NPDES permit number, and a brief description 
of how the proposed project(s) will result in compliance with the 
enforceable requirements of the Act.
    (f) Required comments or approvals of relevant State, interstate, 
regional, and local agencies (see Sec. 30.305-8).
    (g) A final responsiveness summary, consistent with 40 CFR 25.8 and 
Sec. 35.917-5.
    (h) A brief statement demonstrating that the authorities who will be 
implementing the plan have the necessary legal, financial, 
institutional, and managerial resources available to insure the 
construction, operation, and maintenance of the proposed treatment 
works.
    (i) A statement specifying that the requirements of the Civil Rights 
Act of 1964 and of part 7 of this chapter have been met.
    (j) For facilities planning begun after September 30, 1978, whether 
or not prepared under a step 1 grant, a description of potential 
opportunities for recreation, open space, and access to bodies of water 
analyzed in planning the proposed treatment works and the recommended 
actions. The facilities plan shall also describe measures taken to 
coordinate with Federal, State, and local recreational programs and with 
recreational elements of applicable approved areawide WQM plans.
    (k) A municipal pretreatment program in accordance with Sec. 35.907,
    (l) An estimate of total project costs and charges to customers, in 
accordance with guidance issued by the Administrator.
    (m) A statement concerning the availability and estimated cost of 
proposed sites.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 10302, Feb. 16, 1979]



Sec. 35.917-2  State responsibilities.

    (a) Facilities planning areas. Facilities planning should focus upon 
the geographic area to be served by the waste treatment system(s) of 
which the proposed treatment works will be an integral part. The 
facilities plan should include the area necessary to prepare an 
environmental assessment and to assure that the most cost-effective 
means of achieving the established water quality goals can be 
implemented. To assure that facilities planning will include the 
appropriate geographic areas, the State shall:
    (1) Delineate, as a preliminary basis for planning, the boundaries 
of the planning areas. In the determination of each area, appropriate 
attention should be given to including the entire area where cost 
savings, other management advantages, or environmental gains may result 
from interconnection of individual waste treatment systems or collective 
management of such systems;
    (2) Include maps, which shall be updated annually, showing the 
identified areas and boundary determinations, as part of the State 
submission under section 106 of the act;
    (3) Consult with local officials in making the area and boundary 
determinations; and
    (4) Where individual systems are likely to be cost-effective, 
delineate a planning area large enough to take advantage of economies of 
scale and efficiencies in planning and management.
    (b) Facilities planning priorities. The State shall establish 
funding priorities for facilities planning in accordance with 
Sec. Sec. 35.915 and 35.915-1.



Sec. 35.917-3  Federal assistance.

    (a) Eligibility. Only an applicant which is eligible to receive 
grant assistance for subsequent phases of construction (steps 2 and 3) 
and which has the legal authority to subsequently construct and manage 
the facility may apply for grant assistance for step 1. If the area to 
be covered by the facilities plan includes more than one political 
jurisdiction, a grant may be awarded for a step 1 project, as 
appropriate, to:
    (1) The joint authority representing such jurisdictions, if 
eligible; (2) one qualified (lead agency) applicant; or (3) two or more 
eligible jurisdictions. After a waste treatment management agency for an 
area has been designated in accordance with section 208(c) of the Act 
(see subpart G of this part) the Regional Administrator shall not make

[[Page 443]]

any grant for construction of treatment works within the area except to 
the designated agency.
    (b) Reports. Where a grant has been awarded for facilities planning 
which is expected to require more than 1 year to complete, the grantee 
must submit a brief progress report to the Regional Administrator at 3-
month intervals. The progress report shall contain a minimum of 
narrative description, and shall describe progress in completing the 
approved schedule of specific tasks for the project.



Sec. 35.917-4  Planning scope and detail.

    (a) Initially, the geographic scope of step 1 grant assistance shall 
be based on the area delineated by the State under Sec. 35.917-2, 
subject to the Regional Administrator's review. The Regional 
Administrator may make the preliminary delineation of the boundaries of 
the planning area, if the State has not done so, or may revise 
boundaries selected by the locality or State agency, after appropriate 
consultation with State and local officials.
    (b) Facilities planning shall be conducted only to the extent that 
the Regional Administrator finds necessary in order to insure that 
facilities for which grants are awarded will be cost-effective and 
environmentally sound and to permit reasonable evaluation of grant 
applications and subsequent preparation of designs, construction 
drawings, and specifications.



Sec. 35.917-5  Public participation.

    (a) General. Consistent with section 101(e) of the Clean Water Act 
and 40 CFR part 25, EPA, the States, and grantees shall provide for, 
encourage, and assist public participation in the facilities planning 
process and shall provide citizens with information about and 
opportunities to become involved in the following:
    (1) The assessment of local water quality problems and needs;
    (2) The identification and evaluation of locations for waste water 
treatment facilities and of alternative treatment technologies and 
systems including those which recycle and reuse waste water (including 
sludge), use land treatment, reduce waste water volume, and encourage 
multiple use of facilities;
    (3) The evaluation of social, economic, fiscal, and environmental 
impacts; and
    (4) The resolution of other significant facilities planning issues 
and decisions.
    (b) Basic Public Participation Program. Since waste water treatment 
facilities vary in complexity and impact upon the community, these 
public participation requirements institute a two-tier public 
participation program for facilities planning consisting of a Basic 
Public Participation Program, suitable for less complex projects with 
only moderate community impacts, and a Full-Scale Public Participation 
Program, for more complex projects with potentially significant 
community impacts. All facilities planning projects, except those that 
qualify for the Full-Scale Public Participation Program under paragraph 
(c) of this section and those exempt under paragraph (d) of this 
section, require the Basic Public Participation Program. In conducting 
the Basic Public Participation Program, the grantee shall at a minimum:
    (1) Institute, and maintain throughout the facilities planning 
process, a public information program (including the development and use 
of a mailing list of interested and affected members of the public), in 
accordance with 40 CFR 25.4 and Sec. 35.917-5(a).
    (2) Notify and consult with the public, during the preparation of 
the plan of study, about the nature and scope of the proposed facilities 
planning project. EPA encourages the grantee to consult with the public 
in the selection of the professional consulting engineer.
    (3) Include in the plan of study, submitted with the Step 1 grant 
application, a brief outline of the public participation program, noting 
the projected staff and budget resources which will be devoted to public 
participation, a proposed schedule for public participation activities, 
the types of consultation and informational mechanisms that will be 
used, and the segments of the public that the grantee has targeted for 
involvement.
    (4) Submit to EPA, within 45 days after the date of acceptance of 
the Step 1 grant award, a brief Public Participation Work Plan. In 
addition to meeting

[[Page 444]]

the requirements of 40 CFR 25.11, the Work Plan shall describe the 
method of coordination between the appropriate Water Quality Management 
public participation program under subpart G of this part and the 
grantee's public participation program as required by 40 CFR 35.917-
5(e). The grantee shall distribute the Work Plan, accompanied by a fact 
sheet on the project, to groups and individuals who may be interested in 
or affected by the project. The fact sheet shall describe the nature, 
scope and location of the project; identify the consulting engineer and 
grantee staff contact; and include a preliminary estimate of the total 
costs of the project, including debt service and operation and 
maintenance, and of the resulting charges to each affected household.
    (5) Consult with the public, in accordance with 40 CFR 25.4, early 
in the facilities planning process when assessing the existing and 
future situations and identifying and screening alternatives, but before 
selecting alternatives for evaluation according to the Cost-
Effectiveness Analysis Guidelines (see Appendix A, Cost-Effectiveness 
Analysis Guidelines, paragraph 5). After consultating with the public, 
the grantee shall prepare and distribute a responsiveness summary, in 
accordance with 40 CFR 25.8.
    (6) Hold a meeting to consult with the public, in accordance with 40 
CFR 25.6, when alternatives are largely developed but before an 
alternative or plan has been selected and then prepare and distribute a 
responsiveness summary, in accordance with 40 CFR 25.8.
    (7) Hold a public hearing before final adoption of the facilities 
plan, in accordance with 40 CFR 25.5.
    (8) Include in the final facilities plan a final responsiveness 
summary, in accordance with 40 CFR 25.8.
    (c) Full-Scale Public Participation Program. (1) The Regional 
Administrator shall require a Full-Scale Public Participation Program 
for all Step 1 facilities planning projects that fulfill one or more of 
the following three conditions:
    (i) Where EPA prepares or requires the preparation of an 
Environmental Impact Statement during facilities planning under 40 CFR 
part 6; or
    (ii) Where advanced wastewater treatment (AWT) levels, as defined in 
EPA guidance, may be required; or
    (iii) Where the Regional Administrator determines that more active 
public participation in decision-making is needed because of the 
possibility of particularly significant effects on matters of citizen 
concern, as indicated by one or more of the following:
    (A) Significant change in land use or impact on environmentally 
sensitive areas;
    (B) Significant increase in the capacity of treatment facilities or 
interceptors, significant increase in sewered area, or construction of 
wholly new treatment and conveyance systems;
    (C) Substantial total cost to the community or substantial increased 
cost to users (i.e., cost not reimbursed under the grant);
    (D) Significant public controversy;
    (E) Significant impact on local population growth or economic 
growth;
    (F) Substantial opportunity for implementation of innovative or 
alternative wastewater treatment technologies or systems.
    (2) The grantee shall initiate a Full-Scale Public Participation 
Program as soon as the determination in paragraph (c)(1) of this section 
is made. Generally, the determination should be made before or at the 
time of award of the Step 1 grant. However, if the Regional 
Administrator's determination under paragraph (c)(1) of this section to 
require a Full-Scale Public Participation Program occurs after 
initiation of facilities planning because of newly discovered 
circumstances, the grantee shall initiate and expanded public 
participation program at that point. The Regional Administrator shall 
assure that the expanded program is at least as inclusive as a normal 
Full-Scale Public Participation Program, except for constraints imposed 
by facilities planning activities that have already been completed. If 
the project is segmented, the Regional Administrator shall look at the 
project as a whole when considering whether to require a Full-Scale 
Public Participation Program.
    (3) In conducting the Full-Scale Public Participation Program, the 
grantee shall at a minimum:

[[Page 445]]

    (i) Institute and maintain, throughout the facilities planning 
process, a public information program, in accordance with 40 CFR 25.4 
and Sec. 35.917-5(a);
    (ii) Notify and consult with the public, during the development of 
the plan of study, about the nature and scope of the proposed facilities 
planning project. EPA encourages the grantee to consult with the public 
in the selection of the professional consulting engineer;
    (iii) Include, in the plan of study submitted with the Step 1 grant 
application, brief outline of the public participation program, noting 
the projected staff and budget resources which will be devoted to public 
participation, a proposed schedule for public participation activities, 
types of information and consultation mechanisms that will be used, and 
the segments of the public that the grantee has targeted for 
involvement;
    (iv) Designate or hire a public participation coordinator and 
establish an advisory group, in accordance with 40 CFR 25.7, immediately 
upon acceptance of the Step 1 grant award.
    (v) Submit to EPA, within 45 days after the date of acceptance of 
the step 1 grant award and after consultation with the advisory group, a 
brief Public Participation Work Plan. In addition to meeting the 
requirements of 40 CFR 25.11, the Work Plan shall describe the method 
for coordination between the appropriate Water Quality Management agency 
public participation program under subpart G of this part, and the 
grantee's public participation program as required by 40 CFR 35.917-
5(e). The grantee shall distribute the Work Plan, accompanied by a fact 
sheet on the project, to groups and individuals who may be interested in 
or affected by the project. The fact sheet shall describe the nature, 
scope and location of the project; identify the consulting engineer and 
grantee staff contact; and include a preliminary estimate of the total 
costs of the project, including debt service and operation and 
maintenance, and of the resulting costs to each affected household;
    (vi) Hold a public meeting to consult with the public, in accordance 
with 40 CFR 25.6, early in the facilities planning process when 
assessing the existing and future situations, and identifying and 
screening alternatives, but before selection of alternatives for 
evaluation according to the Cost-Effectiveness Analysis Guidelines (see 
Appendix A, Cost-Effectiveness Analysis Guidelines, paragraph 5). 
Following the public meeting, the grantee shall prepare and distribute a 
responsiveness summary, in accordance with 40 CFR 25.8;
    (vii) Hold a public meeting to consult with the public, in 
accordance with 40 CFR 25.6, when alternatives are largely developed but 
before an alternative or plan has been selected, and then prepare and 
circulate a responsiveness summary, in accordance with 40 CFR 25.8;
    (viii) Hold a public hearing prior to final adoption of the 
facilities plan, in accordance with 40 CFR 25.5. This public hearing may 
be held in conjunction with the public hearing on the draft 
Environmental Impact Statement under 40 CFR part 6.
    (ix) Include, in the final facilities plan, a final responsiveness 
summary, in accordance with 40 CFR 25.8.
    (d) Exemptions from public participation requirements. (1) Upon 
written request of the grantee, the Regional Administrator may exempt 
projects in which only minor upgrading of treatment works or minor sewer 
rehabilitation is anticipated according to the State Project Priority 
List from the requirements of the Basic and Full-Scale Public 
Participation Programs under paragraphs (b) and (c) of this section, 
except for the public hearing and public disclosure of costs. Before 
granting any exemption, the Regional Administrator shall issue a public 
notice of intent to waive the above requirements containing the facts of 
the situation and shall allow 30 days for response. If responses 
indicate that serious local issues exist, then the Regional 
Administrator shall deny the exemption request.
    (2) During the facilities planning process, if the Regional 
Administrator determines that the project no longer meets the exemption 
criteria stated above, the grantee, in consultation with the Regional 
Administrator, shall undertake public participation activities 
commensurate with the appropriate public participation program but

[[Page 446]]

adjusted for constraints imposed by facilities planning activities that 
have already been completed.
    (3) If a project is segmented, the Regional Administrator shall look 
at the project as a whole when considering any petition for exemption.
    (e) Relationship between facilities planning and other environmental 
protection programs. Where possible, the grantee shall further the 
integration of facilities planning and related environmental protection 
programs by coordinating the facilities planning public participation 
program with public participation activities carried out under other 
programs. At a minimum, the grantee shall provide for a formal liaison 
between the facilities planning advisory group (or the grantee, where 
there is no advisory group) and any areawide advisory group established 
under subpart G of this part. The Regional Administrator may request 
review of the facilities plan by any appropriate State or areawide 
advisory group in association with the facilities plan review required 
by 40 CFR 35.1522.
    (f) Mid-project evaluation. In accordance with 40 CFR 25.12(a)(2), 
EPA shall, in conjunction with other regular oversight responsibilities, 
conduct a mid-project review of compliance with public participation 
requirements.

[44 FR 10302, Feb. 16, 1979]



Sec. 35.917-6  Acceptance by implementing governmental units.

    A facilities plan submitted for approval shall include adopted 
resolutions or, where applicable, executed agreements of the 
implementing governmental units, including Federal facilities, or 
management agencies which provide for acceptance of the plan, or 
assurances that it will be carried out, and statements of legal 
authority necessary for plan implementation. The Regional Administrator 
may approve any departures from these requirements before the plan is 
submitted.



Sec. 35.917-7  State review and certification of facilities plan.

    Each facilities plan must be submitted to the State agency for 
review. The State must certify that:
    (a) The plan conforms with requirements set forth in this subpart;
    (b) The plan conforms with any existing final basin plans approved 
under section 303(e) of the Act;
    (c) Any concerned 208 planning agency has been given the opportunity 
to comment on the plan; and
    (d) The plan conforms with any waste treatment management plan 
approved under section 208(b) of the Act.



Sec. 35.917-8  Submission and approval of facilities plan.

    The State agency must submit the completed facilities plan for the 
Regional Administrator's approval. Where deficiencies in a facilities 
plan are discovered, the Regional Administrator shall promptly notify 
the State and the grantee or applicant in writing of the nature of such 
deficiencies and of the recommended course of action to correct such 
deficiencies. Approval of a plan of study or a facilities plan will not 
constitute an obligation of the United States for any step 2, step 3, or 
step 2+3 project.



Sec. 35.917-9  Revision or amendment of facilities plan.

    A facilities plan may provide the basis for several subsequent step 
2, step 3, or step 2+3 projects. A facilities plan which has served as 
the basis for the award of a grant for a step 2, step 3, or step 2+3 
project shall be reviewed before the award of any grant for a subsequent 
project involving step 2 or step 3 to determine if substantial changes 
have occurred. If the Regional Administrator decides substantial changes 
have occurred which warrant revision or amendment, the plan shall be 
revised or amended and submitted for review in the same manner specified 
in this subpart.



Sec. 35.918  Individual systems.

    (a) For references to individual systems, the following definitions 
apply:
    (1) Individual systems. Privately owned alternative wastewater 
treatment works (including dual waterless/gray water systems) serving 
one or more principal residences or small commercial establishments 
which are neither connected into nor a part of any conventional 
treatment works. Normally, these are on-site systems with localized 
treatment and disposal

[[Page 447]]

of wastewater with minimal or no conveyance of untreated waste water. 
Limited conveyance of treated or partially treated effluents to further 
treatment or disposal sites can be a function of individual systems 
where cost-effective.
    (2) Principal residence. Normally the voting residence, the 
habitation of the family or household which occupies the space for at 
least 51 percent of the time annually. Second homes, vacation, or 
recreation residences are not included in this definition. A commercial 
establishment with waste water flow equal to or smaller than one user 
equivalent (generally 300 gallons per day dry weather flows) is 
included.
    (3) Small commercial establishments. Private establishments normally 
found in small communities such as restaurants, hotels, stores, filling 
stations, or recreational facilities with dry weather wastewater flows 
less than 25,000 gallons per day. Private, nonprofit entities such as 
churches, schools, hospitals, or charitable organizations are considered 
small commercial establishments. A commercial establishment with waste 
water flow equal to or smaller than one user equivalent (generally 300 
gallons per day dry weather flow) shall be treated as a residence.
    (4) Conventional system. A collection and treatment system 
consisting of minimum size (6 or 8 inch) gravity collector sewers 
normally with manholes, force mains, pumping and lift stations, and 
interceptors leading to a central treatment plant.
    (5) Alternative waste water treatment works. A waste water 
conveyance and/or treatment system other than a conventional system. 
This includes small diameter pressure and vacuum sewers and small 
diameter gravity sewers carrying partially or fully treated waste water.
    (b) A public body otherwise eligible for a grant under Sec. 35.920-1 
is eligible for a grant to construct privately owned treatment works 
serving one or more principal residences or small commercial 
establishments if the requirements of Sec. Sec. 35.918-1, 35.918-2, and 
35.918-3 are met.
    (c) All individual systems qualify as alternative systems under 
Sec. 35.908 and are eligible for the 4-percent set-aside (Sec. 35.915-
1(e)) where cost-effective.



Sec. 35.918-1  Additional limitations on awards for individual systems.

    In addition to those limitations set forth in Sec. 35.925, the grant 
applicant shall:
    (a) Certify that the principal residence or small commercial 
establishment was constructed before December 27, 1977, and inhabited or 
in use on or before that date;
    (b) Demonstrate in the facility plan that the solution chosen is 
cost-effective and selected in accordance with the cost-effectiveness 
guidelines for the construction grants program (see appendix A to this 
subpart);
    (c) Apply on behalf of a number of individual units located in the 
facility planning area;
    (d) Certify that public ownership of such works is not feasible and 
list the reasons in support of such certification;
    (e) Certify that such treatment works will be properly installed, 
operated, and maintained and that the public body will be responsible 
for such actions;
    (f) Certify before the step 2 grant award that the project will be 
constructed and an operation and maintenance program established to meet 
local, State, and Federal requirements including those protecting 
present or potential underground potable water sources;
    (g) Establish a system of user charges and industrial cost recovery 
in accordance with Sec. Sec. 35.928 et seq., 35.929 et seq., 35.935-13, 
and 35.935-15;
    (h) Obtain assurance (such as an easement or covenant running with 
the land), before the step 2 grant award, of unlimited access to each 
individual system at all reasonable times for such purposes as 
inspection, monitoring, construction, maintenance, operation, 
rehabilitation, and replacement. An option will satisfy this requirement 
if it can be exercised no later than the initiation of construction;
    (i) Establish a comprehensive program for regulation and inspection 
of individual systems before EPA approval of the plans and 
specifications.

[[Page 448]]

Planning for this comprehensive program shall be completed as part of 
the facility plan. The program shall include as a minimum, periodic 
testing of water from existing potable water wells in the area. Where a 
substantial number of onsite systems exist, appropriate additional 
monitoring of the aquifer(s) shall be provided;
    (j) Comply with all other applicable limitations and conditions 
which treatment works projects funded under this subpart must meet.



Sec. 35.918-2  Eligible and ineligible costs.

    (a) Only the treatment and treatment residue disposal portions of 
toilets with composting tanks, oil-flush mechanisms or similar in-house 
systems are grant eligible.
    (b) Acquisition of land in which the individual system treatment 
works are located is not grant eligible.
    (c) Commodes, sinks, tubs, drains, and other wastewater generating 
fixtures and associated plumbing are not grant eligible. Modifications 
to homes or commercial establishments are also excluded from grant 
eligibility.
    (d) Only reasonable costs of construction site restoration to 
preconstruction conditions are eligible. Costs of improvement or 
decoration associated with the installation of individual systems are 
not eligible.
    (e) Conveyance pipes from wastewater generating fixtures to the 
treatment unit connection flange or joint are not eligible where the 
conveyance pipes are located on private property.



Sec. 35.918-3  Requirements for discharge of effluents.

    Best practicable waste treatment criteria published by EPA under 
section 304(d)(2) of the Act shall be met for disposal of effluent on or 
into the soil from individual systems. Discharges to surface waters 
shall meet effluent discharge limitations for publicly owned treatment 
works.



Sec. 35.920  Grant application.

    Grant applications will be submitted and evaluated in accordance 
with part 30, subpart B of this chapter.



Sec. 35.920-1  Eligibility.

    Municipalities (see Sec. 35.905), intermunicipal agencies, States, 
or interstate agencies are eligible for grant assistance.



Sec. 35.920-2  Procedure.

    (a) Preapplication assistance, including, where appropriate, a 
preapplication conference, should be requested from the State agency or 
the appropriate EPA Regional Office for each project for which State 
priority has been determined. The State agency must receive an 
application for each proposed treatment works. The basic application 
shall meet the project requirements in Sec. 35.920-3. Submissions 
required for subsequent related projects shall be in the form of 
amendments to the basic application. The grantee shall submit each 
application through the State agency. It must be complete (see 
Sec. 35.920-3), and must relate to a project for which priority has been 
determined under Sec. 35.915. If any information required by 
Sec. 35.920-3 has been furnished with an earlier application, the 
applicant need only incorporate it by reference and, if necessary, 
revise such information using the previously approved application.
    (b) Grant applications (and, for subsequent related projects, 
amendments to them) are considered received by EPA only when complete 
and upon official receipt of the State priority certification document 
(EPA form 5700-28) in the appropriate EPA Regional Office. In a State 
which has been delegated Federal application processing functions under 
Sec. 35.912 or under Subpart F of this part, applications are considered 
received by EPA on the date of State certification. Preliminary or 
partial submittals may be made; EPA may conduct preliminary processing 
of these submittals.



Sec. 35.920-3  Contents of application.

    (a) Step 1: Facilities plan and related step 1 elements. An 
application for a grant for step 1 shall include:
    (1) A plan of study presenting--
    (i) The proposed planning area;
    (ii) An identification of the entity or entities that will be 
conducting the planning;

[[Page 449]]

    (iii) The nature and scope of the proposed step 1 project and public 
participation program, including a schedule for the completion of 
specific tasks;
    (iv) An itemized description of the estimated costs for the project; 
and
    (v) Any significant public comments received.
    (2) Proposed subagreements, or an explanation of the intended method 
of awarding subagreements for performance of any substantial portion of 
the project work;
    (3) Required comments or approvals of relevant State, local and 
Federal agencies, including clearinghouse requirements of Office of 
Management and Budget Circular A-95, as revised (see Sec. 30.305 of this 
subchapter).
    (b) Step 2: Preparation of construction drawings and specifications. 
Before the award of a grant or grant amendment for a step 2 project, the 
applicant must furnish the following:
    (1) A facilities plan (including the environmental assessment 
portion in accordance with part 6 of this chapter) in accordance with 
Sec. Sec. 35.917 through 35.917-9;
    (2) Adequate information regarding availability of proposed site(s), 
if relevant;
    (3) Proposed subagreements or an explanation of the intended method 
of awarding subagreements for performance of any substantial portion of 
the project work;
    (4) Required comments or approvals of relevant State, local, and 
Federal agencies, including clearinghouse requirements of Office and 
Management and Budget Circular A-95, as revised (see Sec. 30.305 of this 
subchapter);
    (5) A value engineering (VE) commitment in compliance with 
Sec. 35.926(a) for all step 2 grant applications for projects with a 
projected total step 3 grant eligible construction cost of $10 million 
or more excluding the cost for interceptor and collector sewers. For 
those projects requiring VE, the grantee may propose, subject to the 
Regional Administrator's approval, to exclude interceptor and collector 
sewers from the scope of the VE analysis;
    (6) Proposed or executed (as determined appropriate by the Regional 
Administrator) intermunicipal agreements necessary for the construction 
and operation of the proposed treatment works, for any treatment works 
serving two or more municipalities;
    (7) A schedule for initiation and completion of the project work 
(see Sec. 35.935-9), including milestones; and
    (8) Satisfactory evidence of compliance with:
    (i) Sections 35.925-11, 35.929 et seq. and 35.935-13 regarding user 
charges;
    (ii) Sections 35.925-11, 35.928 et seq. and 35.935-15, regarding 
industrial cost recovery, if applicable;
    (iii) Section 35.925-16, regarding costs allocable to Federal 
facilities, if applicable;
    (iv) Section 35.927-4 regarding a sewer use ordinance;
    (v) Section 30.405-2 and part 4 of this chapter, regarding 
compliance with the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, if applicable; and,
    (vi) Other applicable Federal statutory and regulatory requirements 
(see subpart C of part 30 of this chapter).
    (9) After June 30, 1980, for grantees subject to pretreatment 
requirements under Sec. 35.907(b), the items required by 
Sec. 35.907(d)(1), (2), and (4).
    (10) A public participation work plan, in accordance with 
Sec. 35.917-5(g), if the grantee, after consultation with the public and 
its advisory group (if one exists), determines that additional public 
participation activities are necessary.
    (c) Step 3. Building and erection of a treatment works. Prior to the 
award of a grant or grant amendment for a step 3 project, the applicant 
must furnish the following:
    (1) Each of the items specified in paragraph (b) of this section (in 
compliance with paragraph (b)(6) of this section, the final 
intermunicipal agreements must be furnished);
    (2) Construction drawings and specifications suitable for bidding 
purposes (in the case of an application for step 3 assistance solely for 
acquisition of eligible land, the grantee must submit a plat which shows 
the legal description of the property to be acquired, a preliminary 
layout of the distribution and drainage systems, and an explanation of 
the intended method of acquiring the property);
    (3) A schedule for or evidence of compliance with Sec. Sec. 35.925-
10 and 35.935-12

[[Page 450]]

concerning an operation and maintenance program, including a preliminary 
plan of operation; and
    (4) After December 31, 1980, the items required by Sec. 35.907(d)(1) 
through (d)(9), as applicable, for grantees subject to pretreatment 
requirements under Sec. 35.907(b).
    (5) A public participation work plan, in accordance with 
Sec. 35.917-5(g), if the grantee determines, after consultation with the 
public, that additional public participation activities are necessary.
    (d) Step 2+3. Combination design and construction of a treatment 
works. Before the award of a grant or grant amendment for a step 2+3 
project, the grantee must furnish:
    (1) Each of the items specified in paragraph (b) of this section, 
and (2) a schedule for timely submission of plans and specifications, 
operation and maintenance manual, user charge and industrial cost 
recovery systems, sewer use ordinance, and a preliminary plan of 
operation.
    (e) Training facility project. An application for grant assistance 
for construction and support of a training facility, facilities or 
training programs under section 109(b) of the Act shall include:
    (1) A statement concerning the suitability of the treatment works 
facility, facilities or training programs for training operations and 
maintenance personnel for treatment works throughout one or more States;
    (2) A written commitment from the State agency or agencies to carry 
out at such facility a program of training approved by the Regional 
Administrator;
    (3) An engineering report (required only if a facility is to be 
constructed) including facility design data and cost estimates for 
design and construction;
    (4) A detailed outline of the training programs, including (for 1-, 
3-, and 5-year projections):
    (i) An assessment of need for training,
    (ii) How the need was determined,
    (iii) Who would be trained,
    (iv) What curriculum and materials would be used,
    (v) What type of delivery system will be used to conduct training, 
(i.e., State vocational education system, State environmental agency, 
universities or private organizations),
    (vi) What resources are available for the program,
    (vii) A budget breakdown on the cost of the program, and
    (viii) The relationship of the facility or programs to other 
training programs.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 10304, Feb. 16, 1979; 
44 FR 37595, June 27, 1979; 44 FR 39339, July 5, 1979]



Sec. 35.925  Limitations on award.

    Before awarding initial grant assistance for any project for a 
treatment works through a grant or grant amendment, the Regional 
Administrator shall determine that all of the applicable requirements of 
Sec. 35.920-3 have been met. He shall also determine the following:



Sec. 35.925-1  Facilities planning.

    That, if the award is for step 2, step 3, or step 2+3 grant 
assistance, the facilities planning requirements in Sec. 35.917 et seq. 
have been met.



Sec. 35.925-2  Water quality management plans and agencies.

    That the project is consistent with any applicable water quality 
management (WQM) plan approved under section 208 or section 303(e) of 
the Act; and that the applicant is the wastewater management agency 
designated in any WQM plan certified by the Governor and approved by the 
Regional Administrator.



Sec. 35.925-3  Priority determination.

    That such works are entitled to priority in accordance with 
Sec. 35.915, and that the award of grant assistance for the proposed 
project will not jeopardize the funding of any treatment works of higher 
priority.



Sec. 35.925-4  State allocation.

    That the award of grant assistance for a particular project will not 
cause the total of all grant assistance which applicants within a State 
received, including grant increases, to exceed the total of all 
allotments and reallotments available to the State under Sec. 35.910.

[[Page 451]]



Sec. 35.925-5  Funding and other capabilities.

    That the applicant has:
    (a) Agreed to pay the non-Federal project costs, and
    (b) The legal, institutional, managerial, and financial capability 
to insure adequate construction, operation, and maintenance of the 
treatment works throughout the applicant's jurisdiction. (Also see 
Sec. 30.340-3 of this subchapter.)



Sec. 35.925-6  Permits.

    That the applicant has, or has applied for, the permit or permits as 
required by the national pollutant discharge elimination system (NPDES) 
with respect to existing discharges affected by the proposed project.



Sec. 35.925-7  Design.

    That the treatment works design will be (in the case of projects 
involving step 2) or has been (in the case of projects for step 3) based 
upon:
    (a) Appendix A to this subpart, so that the design, size, and 
capacity of such works are cost-effective and relate directly to the 
needs they serve, including adequate reserve capacity;
    (b) Subject to the limitations set forth in Sec. 35.930-4, 
achievement of applicable effluent limitations established under the 
Act, or BPWTT (see Sec. 35.917-1(d)(5)), including consideration, as 
appropriate, for the application of technology which will provide for 
the reclaiming or recycling of water or otherwise eliminate the 
discharge of pollutants;
    (c) The sewer system evaluation and rehabilitation requirements of 
Sec. 35.927; and
    (d) The value engineering requirements of Sec. 35.926 (b) and (c).



Sec. 35.925-8  Environmental review.

    (a) That, if the award is for step 2, step 3, or step 2+3, the 
requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.) applicable to the project step have been met. The grantee 
or grant applicant must prepare an adequate assessment of expected 
environmental impacts, consistent with the requirements of part 6 of 
this chapter, as part of facilities planning, in accordance with 
Sec. 35.917-1(d)(7). The Regional Administrator must insure that an 
environmental impact statement or a negative declaration is prepared in 
accordance with part 6 of this chapter (particularly Sec. Sec. 6.108, 
6.200, 6.212, and 6.504) in conjunction with EPA review of a facility 
plan and issued before any award of step 2 or step 3 grant assistance.
    (b) The Regional Administrator may not award step 2 or step 3 grant 
assistance if the grantee has not made, or agreed to make, pertinent 
changes in the project, in accordance with determinations made in a 
negative declaration or environmental impact statement. He may condition 
a grant to ensure that the grantee will comply, or seek to obtain 
compliance, with such environmental review determinations. The 
conditions may address secondary impacts to the extent deemed 
appropriate by the Regional Administrator.



Sec. 35.925-9  Civil rights.

    That if the award of grant assistance is for a project involving 
step 2 or step 3, the applicable requirements of the Civil Rights Act of 
1964 and part 7 of this chapter have been met.



Sec. 35.925-10  Operation and maintenance program.

    If the award of grant assistance is for a step 3 project, that the 
applicant has made satisfactory provision to assure proper and efficient 
operation and maintenance of the treatment works (including the sewer 
system), in accordance with Sec. 35.935-12, and that the State will have 
an effective operation and maintenance monitoring program to assure that 
treatment works assisted under this subpart comply with applicable 
permit and grant conditions.



Sec. 35.925-11  User charges and industrial cost recovery.

    That, in the case of grant assistance for a project involving step 2 
or step 3, the grantee has complied or will comply with the requirements 
for user charge and industrial cost recovery systems. (See 
Sec. Sec. 35.928 et seq., 35.929 et seq., 35.935-13, and 35.935-15.)
    (a) Grants awarded before July 1, 1979. Grantees must submit a 
schedule of implementation to show that their

[[Page 452]]

user charge and industrial cost recovery systems will be approved in 
accordance with the requirements of Sec. Sec. 35.935-13 and 35.935-15.
    (b) Grants awarded after June 30, 1979. The grantee's user charge 
and industrial cost recovery systems must be approved before the award 
of step 3 grant assistance.
    (c) Letters of intent. In the case of any grant assistance for a 
project involving step 2 or step 3, the applicant must have received 
signed letters of intent from each significant industrial user stating 
that it will pay that portion of the grant amount allocable to the 
treatment of its wastes. Each such letter shall also include a statement 
of the industrial user's intended period of use of the treatment works. 
A significant industrial user is one that will contribute greater than 
10 percent of the design flow or design pollutant loading of the 
treatment works. In addition, the applicant must agree to require all 
industrial users to pay that portion of the grant amount allocable to 
the treatment of wastes from such users.



Sec. 35.925-12  Property.

    That the applicant has demonstrated to the satisfaction of the 
Regional Administrator that it has met or will met the property 
requirements of Sec. 35.935-3.



Sec. 35.925-13  Sewage collection system.

    That, if the project involves sewage collection system work, such 
work (a) is for the replacement or major rehabilitation of an existing 
sewer system under Sec. 35.927-3(a) and is necessary to the total 
integrity and performance of the waste treatment works serving the 
community, or (b) is for a new sewer system in a community in existence 
on October 18, 1972, which has sufficient existing or planned capacity 
to adequately treat such collected sewage. Replacement or major 
rehabilitation of an existing sewer system may be approved only if cost-
effective; the result must be a sewer system design capacity equivalent 
to that of the existing system plus a reasonable amount for future 
growth. For purposes of this section, a community would include any area 
with substantial human habitation on October 18, 1972, as determined by 
an evaluation of each tract (city blocks or parcels of 5 acres or less 
where city blocks do not exist). No award may be made for a new sewer 
system in a community in existence on October 18, 1972, unless the 
Regional Administrator further determines that:
    (a) The bulk (generally two-thirds) of the expected flow (flow from 
existing plus projected future habitations) from the collection system 
will be for waste waters originating from the community (habitations) in 
existence on October 18, 1972;
    (b) The collection system is cost-effective;
    (c) The population density of the area to be served has been 
considered in determining the cost-effectiveness of the proposed 
project:
    (d) The collection system conforms with any approved WQM plan, other 
environmental laws in accordance with Sec. 35.925-14, Executive Orders 
on Wetlands and Floodplains and Agency policy on wetlands and 
agricultural lands; and
    (e) The system would not provide capacity for new habitations or 
other establishments to be located on environmentally sensitive land 
such as wetlands, floodplains or prime agricultural lands. Appropriate 
and effective grant conditions, (e.g., restricting sewer hook-up) should 
be used where necessary to protect these resources from new development.



Sec. 35.925-14  Compliance with environmental laws.

    That the treatment works will comply with all pertinent requirements 
of applicable Federal, State and local environmental laws and 
regulations. (See Sec. 30.101 and subpart C of part 30 of this chapter 
and the Clean Air Act.)



Sec. 35.925-15  Treatment of industrial wastes.

    That the allowable project costs do not include (a) costs of 
interceptor or collector lines constructed exclusively, or almost 
exclusively, to serve industrial sources or (b) costs allocable to the 
treatment for control or removal of pollutants in wastewater introduced 
into the treatment works by industrial

[[Page 453]]

sources, unless the applicant is required to remove such pollutants 
introduced from nonindustrial sources. The project must be included in a 
complete waste treatment system, a principal purpose of which project 
(as defined by the Regional Administrator; see Sec. Sec. 35.903 (d) and 
35.905) and system is the treatment of domestic wastes of the entire 
community, area, region or the district concerned. See the pretreatment 
regulations in part 403 of this chapter and Sec. 35.907.

[44 FR 39340, July 5, 1979]



Sec. 35.925-16  Federal activities.

    That the allowable step 2 or step 3 project costs do not include the 
proportional costs allocable to the treatment of wastes from major 
activities of the Federal Government. A ``major activity'' includes any 
Federal facility which contributes either (a) 250,000 gallons or more 
per day or (b) 5 percent or more of the total design flow of waste 
treatment works, whichever is less.



Sec. 35.925-17  Retained amounts for reconstruction and expansion.

    That the allowable project costs have been reduced by an amount 
equal to the unexpended balance of the amounts the applicant retains for 
future reconstruction and expansion under Sec. 35.928-2(a)(2)(ii), 
together with interest earned.



Sec. 35.925-18  Limitation upon project costs incurred prior to award.

    That project construction has not been initiated before the approved 
date of initiation of construction (as defined in Sec. 35.905), unless 
otherwise provided in this section.
    (a) Step 1 or Step 2: No grant assistance is authorized for step 1 
or step 2 project work performed before award of a step 1 or step 2 
grant. However, payment is authorized, in conjunction with the first 
award of grant assistance, for all preaward allowable project costs in 
the following cases:
    (1) Step 1 work begun after the date of approval by the Regional 
Administrator of a plan of study, if the State requests and the Regional 
Administrator has reserved funds for the step 1 grant. However, the step 
1 grant must be applied for and awarded within the allotment period of 
the reserved funds.
    (2) Step 1 or step 2 work begun after October 31, 1974, but before 
June 30, 1975, in accordance with an approved plan of study or an 
approved facilities plan, as appropriate, but only if a grant is awarded 
before April 1, 1981.
    (3) Step 1 or step 2 work begun before November 1, 1974, but only if 
a grant is awarded before April 1, 1980.
    (b) Step 3: Except as otherwise provided in this paragraph, no grant 
assistance for a step 3 project may be awarded unless the award precedes 
initiation of the step 3 construction. Preliminary step 3 work, such as 
advance acquisition of major equipment items requiring long lead times, 
acquisition of eligible land or of an option for the purchase of 
eligible land, or advance construction of minor portions of treatment 
works, including associated engineering costs, in emergencies or 
instances where delay could result in significant cost increases, may be 
approved by the Regional Administrator after completion of environmental 
review, but only if (1) the applicant submits a written and adequately 
substantiated request for approval and (2) written approval by the 
Regional Administrator is obtained before initiation of the advance 
acquisition or advance construction. (In the case of authorization for 
acquisition of eligible land, the applicant must submit a plat which 
shows the legal description of the property to be acquired, a 
preliminary layout of the distribution and drainage systems, and an 
explanation of the intended method of acquiring the property.)
    (c) The approval of a plan of study, a facilities plan, or advance 
acquisition of equipment or advance construction will not constitute a 
commitment for approval of grant assistance for a subsequent treatment 
works project, but will allow payment for the previously approved costs 
as allowable project costs upon subsequent award of grant assistance, if 
requested before grant award (see Sec. 35.945(a)). In instances where 
such approval is obtained, the applicant proceeds at its own risk, since 
payment for such costs cannot be

[[Page 454]]

made unless grant assistance for the project is awarded.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 39340, July 5, 1979]
Sec. 35.925-19  [Reserved]



Sec. 35.925-20  Procurement.

    That the applicant has complied or will comply with the applicable 
provisions of Sec. Sec. 35.935 through 35.939 with respect to 
procurement actions taken before the award of step 1, 2, or 3 grant 
assistance, such as submission of the information required under 
Sec. 35.937-6.



Sec. 35.925-21  Storm sewers.

    That, under section 211(c) of the Act, the allowable project costs 
do not include costs of treatment works for control of pollutant 
discharges from a separate storm sewer system (as defined in 
Sec. 35.905).



Sec. 35.926  Value engineering (VE).

    (a) Value engineering proposal. All step 2 grant applications for 
projects having a projected total step 3 grant eligible cost of $10 
million or more, excluding the cost for interceptor and collector 
sewers, will contain a VE commitment. The VE proposal submitted during 
step 2 must contain enough information to determine the adequacy of the 
VE effort and the justification of the proposed VE fee. Essential 
information shall include:
    (1) Scope of VE analysis;
    (2) VE team and VE coordinator (names and background);
    (3) Level of VE effort;
    (4) VE cost estimate;
    (5) VE schedule in relation to project schedule (including 
completion of VE analysis and submittal of VE summary reports).
    (b) Value engineering analysis. For projects subject to the VE 
requirements of paragraph (a) of this section, a VE analysis of the 
project design shall be performed. When the VE analysis is completed, a 
preliminary report summarizing the VE findings and a final report 
describing implementation of the VE recommendations must be submitted to 
the project officer on a schedule approved by him.
    (c) Implementation. For those projects for which a VE analysis has 
been performed in accordance with paragraph (b) of this section, VE 
recommendations shall be implemented to the maximum extent feasible, as 
determined by the grantee, subject to the approval of the EPA project 
officer. Rejection of any recommendation shall be on the basis of cost-
effectiveness, reliability, extent of project delays, and other factors 
that may be critical to the treatment processes and the environmental 
impact of the project.



Sec. 35.927  Sewer system evaluation and rehabilitation.

    (a) All applicants for step 2 or step 3 grant assistance must 
demonstrate to the Regional Administrator's satisfaction that each sewer 
system discharging into the treatment works project for which grant 
application is made is not or will not be subject to excessive 
infiltration/inflow. A determination of whether excessive infiltration/
inflow exists may take into account, in addition to flow and related 
data, other significant factors such as cost-effectiveness (including 
the cost of substantial treatment works construction delay, see appendix 
A to this subpart), public health emergencies, the effects of plant 
bypassing or overloading, or relevant economic or environmental factors.
    (b) A sewer system evaluation will generally be used to determine 
whether or not excessive infiltration/inflow exists. It will consist of:
    (1) Certification by the State agency, as appropriate; and, when 
necessary,
    (2) An infiltration/inflow analysis; and, if appropriate,
    (3) A sewer system evaluation survey and, if appropriate, a program, 
including an estimate of costs, for rehabilitation of the sewer system 
to eliminate excessive infiltration/inflow identified in the sewer 
system evaluation. Information submitted to the Regional Administrator 
for such determination should be the minimum necessary to enable him to 
make a judgment.
    (c) Guidelines on sewer system evaluation published by the 
Administrator provide further advisory information (see Sec. 35.900(c)). 
Also see Sec. Sec. 35.925-7(c) and 35.935-16.

[[Page 455]]



Sec. 35.927-1  Infiltration/inflow analysis.

    (a) The infiltration/inflow analysis shall demonstrate the 
nonexistence or possible existence of excessive infiltration/inflow in 
the sewer system. The analysis should identify the presence, flow rate, 
and type of infiltration/inflow conditions which exist in the sewer 
system.
    (b) For determination of the possible existence of excessive 
infiltration/inflow, the analysis shall include an estimate of the cost 
of eliminating the infiltration/inflow conditions. These costs shall be 
compared with estimated total costs for transportation and treatment of 
the infiltration/inflow. Cost-effectiveness analysis guidelines 
(Appendix A to this subpart) should be consulted with respect to this 
determination.
    (c) If the infiltration/inflow analysis demonstrates the existence 
or possible existence of excessive infiltration/inflow a detailed plan 
for a sewer system evaluation survey shall be included in the analysis. 
The plan shall outline the tasks to be performed in the survey and their 
estimated costs.



Sec. 35.927-2  Sewer system evaluation survey.

    (a) The sewer system evaluation survey shall identify the location, 
estimated flow rate, method of rehabilitation and cost of rehabilitation 
versus cost of transportation and treatment for each defined source of 
infiltration/inflow.
    (b) A report shall summarize the results of the sewer system 
evaluation survey. In addition, the report shall include:
    (1) A justification for each sewer section cleaned and internally 
inspected.
    (2) A proposed rehabilitation program for the sewer system to 
eliminate all defined excessive infiltration/inflow.



Sec. 35.927-3  Rehabilitation.

    (a) Subject to State concurrence, the Regional Administrator may 
authorize the grantee to perform minor rehabilitation concurrently with 
the sewer system evaluation survey in any step under a grant if 
sufficient funding can be made available and there is no adverse 
environmental impact. However, minor rehabilitation work in excess of 
$10,000 which is not accomplished with force account labor (see 
Sec. 35.936-14(a)(2)), must be procured through formal advertising in 
compliance with the applicable requirements of Sec. Sec. 35.938 et seq. 
and 35.939, the statutory requirements referenced in Sec. Sec. 30.415 
through 30.415-4 of this subchapter, and other applicable provisions of 
part 30.
    (b) Grant assistance for a step 3 project segment consisting of 
major rehabilitation work may be awarded concurrently with step 2 work 
for the design of the new treatment works.
    (c) The scope of each treatment works project defined within the 
facilities plan as being required for implementation of the plan, and 
for which Federal assistance will be requested, shall define (1) any 
necessary new treatment works construction and (2) any rehabilitation 
work (including replacement) determined by the sewer system evaluation 
to be necessary for the elimination of excessive infiltration/inflow. 
However, rehabilitation which should be a part of the applicant's normal 
operation and maintenance responsibilities shall not be included within 
the scope of a step 3 treatment works project.
    (d) Only rehabilitation of the grantee's sewage collection system is 
eligible for grant assistance. However, the grantee's costs of 
rehabilitation beyond ``Y'' fittings (see definition of ``sewage 
collection system'' in Sec. 35.905) may be treated on an incremental 
cost basis.



Sec. 35.927-4  Sewer use ordinance.

    Each applicant for grant assistance for a step 2 or step 3 project 
shall demonstrate to the satisfaction of the Regional Administrator that 
a sewer use ordinance or other legally binding requirement will be 
enacted and enforced in each jurisdiction served by the treatment works 
project before the completion of construction. The ordinance shall 
prohibit any new connections from inflow sources into the sanitary sewer 
portions of the sewer system and shall insure that new sewers and 
connections to the sewer system are properly designed and constructed.

[[Page 456]]



Sec. 35.927-5  Project procedures.

    (a) State certification. The State agency may (but need not) certify 
that excessive infiltration/inflow does or does not exist. The Regional 
Administrator will determine that excessive infiltration/inflow does not 
exist on the basis of State certification, if he finds that the State 
had adequately established the basis for its certification through 
submission of only the minimum information necessary to enable a 
judgment to be made. Such information could include a preliminary review 
by the applicant or State, for example, of such parameters as per capita 
design flow, ratio of flow to design flow, flow records or flow 
estimates, bypasses or overflows, or summary analysis of hydrological, 
geographical, and geological conditions, but this review would not 
usually be equivalent to a complete infiltration/inflow analysis. State 
certification must be on a project-by-project basis. If, on the basis of 
State certification, the Regional Administrator determines that the 
treatment works is or may be subject to excessive infiltration/inflow, 
no step 2 or step 3 grant assistance may be awarded except as paragraph 
(c) of this section provides.
    (b) Pre-award sewer system evaluation. Generally, except as 
otherwise provided in paragraph (c) of this section, an adequate sewer 
system evaluation, consisting of a sewer system analysis and, if 
required, an evaluation survey, is an essential element of step 1 
facilities planning. It is a prerequisite to the award of step 2 or 3 
grant assistance. If the Regional Administrator determines through State 
Certification or an infiltration/inflow analysis that excessive 
infiltration/inflow does not exist, step 2 or 3 grant assistance may be 
awarded. If on the basis of State certification or the infiltration/
inflow analysis, the Regional Administrator determines that possible 
excessive infiltration/inflow exists, an adequate sewer system 
evaluation survey and, if required, a rehabilitation program must be 
furnished, except as set forth in paragraph (c) of this section before 
grant assistance for step 2 or 3 can be awarded. A step 1 grant may be 
awarded for the completion of this segment of step 1 work, and, upon 
completion of step 1, grant assistance for a step 2 or 3 project (for 
which priority has been determined under Sec. 35.915) may be awarded.
    (c) Exception. If the Regional Administrator determines that the 
treatment works would be regarded (in the absence of an acceptable 
program of correction) as being subject to excessive infiltration/
inflow, grant assistance may be awarded if the applicant establishes to 
the Regional Administrator's satisfaction that the treatment works 
project for which grant application is made will not be significantly 
changed by any subsequent rehabilitation program or will be a component 
part of any rehabilitated system. The applicant must agree to complete 
the sewer system evaluation and any resulting rehabilitation on an 
implementation schedule the State accepts (subject to approval by the 
Regional Administrator), which shall be inserted as a special condition 
in the grant agreement.
    (d) Regional Administrator review. Municipalities may submit through 
the State agency the infiltration/inflow analysis and, when appropriate, 
the sewer system evaluation survey to the Regional Administrator for his 
review at any time before application for a treatment works grant. Based 
on such a review, the Regional Administrator shall provide the 
municipality with a written response indicating either his concurrence 
or nonconcurrence. In order for the survey to be an allowable cost, the 
Regional Administrator must concur with the sewer system evaluation 
survey plan before the work is performed.



Sec. 35.928  Requirements for an industrial cost recovery system.

    (a) The Regional Administrator shall approve the grantee's 
industrial cost recovery system and the grantee shall implement and 
maintain it in accordance with Sec. 35.935-15 and the requirements in 
Sec. Sec. 35.928-1 through 35.928-4. The grantee shall be subject to the 
noncompliance provisions of Sec. 35.965 for failure to comply.
    (b) Grantees awarded step 3 grants under regulations promulgated on 
February 11, 1974, or grantees who obtained approval of their industrial 
cost recovery systems before April 25, 1978, may

[[Page 457]]

amend their systems to correspond to the definition of industrial users 
in Sec. 35.905 or to provide for systemwide industrial cost recovery 
under Sec. 35.928-1(g).



Sec. 35.928-1  Approval of the industrial cost recovery system.

    The Regional Administrator may approve an industrial cost recovery 
system if it meets the following requirements:
    (a) General. Each industrial user of the treatment works shall pay 
an annual amount equal to its share of the total amount of the step 1, 
2, and 3 grants and any grant amendments awarded under this subpart, 
divided by the number of years in the recovery period. An industrial 
user's share shall be based on factors which significantly influence the 
cost of the treatment works. Volume of flow shall be a factor in 
determining an industrial user's share in all industrial cost recovery 
systems; other factors shall include strength, volume, and delivery flow 
rate characteristics, if necessary, to insure that all industrial users 
of the treatment works pay a proportionate distribution of the grant 
assistance allocable to industrial use.
    (b) Industrial cost recovery period. The industrial cost recovery 
period shall be equal to 30 years or to the useful life of the treatment 
works, whichever is less.
    (c) Frequency of payment. Except as provided in Sec. 35.928-3, each 
industrial user shall pay not less often than annually. The first 
payment by an industrial user shall be made not later than 1 year after 
the user begins use of the treatment works.
    (d) Reserve capacity. If an industrial user enters into an agreement 
with the grantee to reserve a certain capacity in the treatment works, 
the user's industrial cost recovery payments shall be based on the total 
reserved capacity in relation to the design capacity of the treatment 
works. If the discharge of an industrial user exceeds the reserved 
capacity in volume, strength or delivery flow rate characteristics, the 
user's industrial cost recovery payment shall be increased to reflect 
the actual use. If there is no reserve capacity agreement between the 
industrial user and the grantee, and a substantial change in the 
strength, volume, or delivery flow rate characteristics of an industrial 
user's discharge share occurs, the user's share shall be adjusted 
proportionately.
    (e) Upgrading and expansion. (1) If the treatment works are 
upgraded, each existing industrial user's share shall be adjusted 
proportionately.
    (2) If the treatment works are expanded, each industrial user's 
share shall be adjusted proportionately, except that a user with 
reserved capacity under paragraph (d) of this section shall incur no 
additional industrial cost recovery charges unless the user's actual use 
exceeded its reserved capacity.
    (f) [Reserved]
    (g) Collection of industrial cost recovery payments. Industrial cost 
recovery payments may be collected on a systemwide or on a project-by-
project basis. The total amount collected from all industrial users on a 
systemwide basis shall equal the sum of the amounts which would be 
collected on a project-by-project basis.
    (h) Adoption of system. One or more municipal legislative enactments 
or other appropriate authority must incorporate the industrial cost 
recovery system. If the project is a regional treatment works accepting 
waste-waters from other municipalities, the subscribers receiving waste 
treatment services from the grantee shall adopt industrial cost recovery 
systems in accordance with section 204(b)(1)(B) of the Act with 
Sec. Sec. 35.928 through 35.928-4. These industrial cost recovery 
systems shall also be incorporated in appropriate municipal legislative 
enactments or other appropriate authority of all municipalities 
contributing wastes to the treatment works. The public shall be 
consulted prior to adoption of the industrial cost recovery system, in 
accordance with 40 CFR part 25.
    (i) Inconsistent agreements. The grantee may have pre-existing 
agreements which address (1) the reservation of capacity in the 
grantee's treatment works or (2) the charges to be collected by the 
grantee in providing waste water treatment services or reserving 
capacity. The industrial cost recovery system shall take precedence over 
any terms or conditions of agreements or

[[Page 458]]

contracts between the grantee and industrial users which are 
inconsistent with the requirements of section 204(b)(1)(B) of the Act 
and these industrial cost recovery regulations.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 10304, Feb. 16, 1979; 
44 FR 39340, July 5, 1979]



Sec. 35.928-2  Use of industrial cost recovery payments.

    (a) The grantee shall use industrial cost recovery payments received 
from industrial users as follows:
    (1) The grantee shall return 50 percent of the amounts received from 
industrial users, together with any interest earned, to the U.S. 
Treasury annually.
    (2) The grantee shall retain 50 percent of the amount recovered from 
industrial users.
    (i) A portion of the amounts which the grantee retains may be used 
to pay the incremental costs of administration of the industrial cost 
recovery system. The incremental costs of administration are those costs 
remaining after deducting all costs reasonably attributable to the 
administration of the user charge system. The incremental costs shall be 
segregated from all other administrative costs of the grantee.
    (ii) A minimum of 80 percent of the amounts the grantee retains 
after paying the incremental costs of administration, together with any 
interest earned, shall be used for the allowable costs (see Sec. 35.940) 
of any expansion, upgrading or reconstruction of treatment works 
necessary to meet the requirements of the Act. The grantee shall obtain 
the written approval of the Regional Administrator before the commitment 
of the amounts retained for expansion, upgrading, or reconstruction.
    (iii) The remainder of the amounts retained by the grantee may be 
used as the grantee sees fit, except that they may not be used for 
construction of industrial pretreatment facilities or rebates to 
industrial users for costs incurred in complying with user charge or 
industrial cost recovery requirements.
    (b) Pending the use of industrial cost recovery payments, as 
described in paragraph (a) of this section, the grantee shall:
    (1) Invest the amounts received in obligations of the U.S. 
Government or in obligations guaranteed as to principal and interest by 
the U.S. Government or any agency thereof; or
    (2) Deposit the amounts received in accounts fully collateralized by 
obligations of the U.S. Government or any agency thereof.



Sec. 35.928-3  Implementation of the industrial cost recovery system.

    (a) When a grantee's industrial cost recovery system is approved, 
implementation of the approved system shall become a condition of the 
grant.
    (b) The grantee shall maintain all records that are necessary to 
document compliance with these regulations.



Sec. 35.928-4  Moratorium on industrial cost recovery payments.

    (a) EPA does not require that industrial users defined in paragraphs 
(a) and (b) of the definition in Sec. 35.905 pay industrial cost 
recovery for charges incurred during the period after December 31, 1977, 
and before July 1, 1979. Any industrial cost recovery charges incurred 
for accounting periods or portions of periods ending before January 1, 
1978, shall be paid by industrial users. These funds are to be used as 
described in Sec. 35.928-2.
    (b) Grantees may either defer industrial cost recovery payments, or 
require industrial users as defined in paragraphs (a) and (b) of the 
definition in Sec. 35.905 to pay industrial cost recovery payments for 
the period after December 31, 1977, and before July 1, 1979. If grantees 
require payment, the amount held by the municipality for eventual return 
to the U.S. Treasury under Sec. 35.928-2(a)(1) shall be invested as 
required under Sec. 35.928-2(b) until EPA advises how such sums shall be 
distributed. Grantees shall implement or continue operating approved 
industrial cost recovery systems and maintain their activities of 
monitoring flows, calculating payments due, and submitting bills to 
industrial users informing them of their current or deferred obligation.
    (c) Industrial users as defined in paragraphs (a) and (b) of the 
definition

[[Page 459]]

in Sec. 35.905 who are served by grantees who defer payment during the 
18-month period ending June 30, 1979, shall make industrial cost 
recovery payments for that period in a lump sum by June 30, 1980, or in 
equal annual installments prorated from July 1, 1979, over the remaining 
industrial cost recovery period.



Sec. 35.929  Requirements for user charge system.

    The Regional Administrator shall approve the grantee's user charge 
system and the grantee shall implement and maintain it in accordance 
with Sec. 35.935-13 and the requirements in Sec. Sec. 35.929-1 through 
35.929-3. The grantee shall be subject to the noncompliance provisions 
of Sec. 35.965 for failure to comply.



Sec. 35.929-1  Approval of the user charge system.

    The Regional Administrator may approve a user charge system based on 
either actual use under paragraph (a) of this section or ad valorem 
taxes under paragraph (b) of this section. The general requirements in 
Sec. Sec. 35.929-2 and 35.929-3 must also be satisfied.
    (a) User charge system based on actual use. A grantee's user charge 
system based on actual use (or estimated use) of waste water treatment 
services may be approved if each user (or user class) pays its 
proportionate share of operation and maintenance (including replacement) 
costs of treatment works within the grantee's service area, based on the 
user's proportionate contribution to the total waste water loading from 
all users (or user classes). To insure a proportional distribution of 
operation and maintenance costs to each user (or user class), the user's 
contribution shall be based on factors such as strength, volume, and 
delivery flow rate characteristics.
    (b) User charges based on ad valorem taxes. A grantee's user charge 
system (or the user charge system of a subscriber, i.e., a constituent 
community receiving waste treatment services from the grantee) which is 
based on ad valorem taxes may be approved if it meets the requirements 
of paragraphs (b)(1) through (b)(7) of this section. If the Regional 
Administrator determines that the grantee did not have a dedicated ad 
valorem tax system on December 27, 1977, meeting the requirements of 
paragraphs (b)(1) through (b)(3) of this section, the grantee shall 
develop a user charge system based on actual use under Sec. 35.929-1(a).
    (1) The grantee (or subscriber) had in existence on December 27, 
1977, a system of ad valorem taxes which collected revenues to pay the 
cost of operation and maintenance of waste water treatment works within 
the grantee's service area and has continued to use that system.
    (2) The grantee (or subscriber) has not previously obtained approval 
of a user charge system on actual use.
    (3) The system of ad valorem taxes in existence on December 27, 
1977, was dedicated ad valorem tax system.
    (i) A grantee's system will be considered to be dedicated if the 
Regional Administrator determines that the system meets all of the 
following criteria:
    (A) The ad valorem tax system provided for a separate tax rate or 
for the allocation of a portion of the taxes collected for payment of 
the grantee's costs of waste water treatment services;
    (B) The grantee's budgeting and accounting procedures assured that a 
specified portion of the tax funds would be used for the payment of the 
costs of operation and maintenance;
    (C) The ad valorem tax system collected tax funds for the costs of 
waste water treatment services which could not be or historically were 
not used for other purposes; and
    (D) The authority responsible for the operation and maintenance of 
the treatment works established the budget for the costs of operation 
and maintenance and used those specified amounts solely to pay the costs 
of operation and maintenance.
    (ii) A subscriber's system based on ad valorem taxes will be 
considered to be dedicated if a contractual agreement or a charter 
established under State law existed on December 27, 1977, which required 
the subscriber to pay its share of the cost of waste water treatment 
services.
    (4) A user charge system funded by dedicated ad valorem taxes shall 
establish, as a minimum, the classes of users listed below:

[[Page 460]]

    (i) Residential users, including single-family and multifamily 
dwellings, and small nonresidential users, including nonresidential 
commercial and industrial users which introduce no more than the 
equivalent of 25,000 gallons per day of domestic sanitary wastes to the 
treatment works:
    (ii) Industrial and commercial users;
    (A) Any nongovernmental user of publicly owned treatment works which 
discharges more than 25,000 gallons per day (gpd) of sanitary waste; or 
a volume of process waste, or combined process and sanitary waste, 
equivalent to 25,000 gpd of sanitary waste. The grantee, with the 
Regional Administrator's approval, shall define the strength of the 
residential discharges in terms of parameters including, as a minimum, 
biochemical oxygen demand (BOD) and suspended solids (SS) per volume of 
flow. Dischargers with a volume exceeding 25,000 gpd or the weight of 
BOD or SS equivalent to that weight found in 25,000 gpd of sanitary 
waste are considered industrial users.
    (B) Any nongovernmental user of a publicly owned treatment works 
which discharges wastewater to the treatment works which contains toxic 
pollutants or poisonous solids, liquids, or gases in sufficient quantity 
either singly or by interaction with other wastes, to contaminate the 
sludge of any municipal systems, or to injure or to interfere with any 
sewage treatment process, or which constitutes a hazard to humans or 
animals, creates a public nuisance, or creates any hazard in or has an 
adverse effect on the waters receiving any discharge from the treatment 
works.
    (iii) Users which pay no ad valorem taxes or receive substantial 
credits in paying such taxes, such as tax exempt institutions or 
governmental users, but excluding publicly owned facilities performing 
local governmental functions (e.g., city office building, police 
station, school) which discharge solely domestic wastes.
    (5) The grantee must be prepared to demonstrate for the Regional 
Administrator's approval that its system of evaluating the volume, 
strength, and characteristics of the discharges from users or categories 
of users classified within the subclass of small nonresidential users is 
sufficient to assure that such users or the average users in such 
categories do not discharge either toxic pollutants or more than the 
equivalent of 25,000 gallons per day of domestic wastewater.
    (6) The ad valorem user charge system shall distribute the operation 
and maintenance costs for all treatment works in the grantee's 
jurisdiction to the residential and small nonresidential user class, in 
proportion to the use of the treatment works by this class. The 
proportional allocation of costs for this user class shall take into 
account the total waste water loading of the treatment works, the 
constituent elements of the wastes from this user class and other 
appropriate factors. The grantee may assess one ad valorem tax rate to 
this entire class of users or, if permitted under State law, the grantee 
may assess different ad valorem tax rates for the subclass of 
residential users and the subclass of small nonresidential users 
provided the operation and maintenance costs are distributed 
proportionately between these subclasses.
    (7) Each member of the industrial and commercial user class 
described under paragraph (b)(4)(ii) of this section and of the user 
class which pays no ad valorem taxes or receives substantial credits in 
paying such taxes described under paragraph (b)(4)(iii) of this section 
shall pay its share of the costs of operation and maintenance of the 
treatment works based upon charges for actual use (in accordance with 
Sec. 35.929-1(a)). The grantee may use its ad valorem tax system to 
collect, in whole or in part, those charges from members of the 
industrial and large commercial class where the following conditions are 
met:
    (i) A portion or all of the ad valorem tax rate assessed to members 
of this class has been specifically designated to pay the costs of 
operation and maintenance of the treatment works, and that designated 
rate is uniformly applied to all members of this class:
    (ii) A system of surcharges and rebates is employed to adjust the 
revenues from the ad valorem taxes collected from each user of this 
class in accordance with the rate designated

[[Page 461]]

under paragraph (b)(7)(i) of this section, such that each member of the 
class pays a total charge for its share of the costs of operation and 
maintenance based upon actual use.



Sec. 35.929-2  General requirements for all user charge systems.

    User charge systems based on actual use under Sec. 35.929-1(a) or ad 
valorem taxes under Sec. 35.929-1(b) shall also meet the following 
requirements:
    (a) Initial basis for operation and maintenance charges. For the 
first year of operation, operation and maintenance charges shall be 
based upon past experience for existing treatment works or some other 
method that can be demonstrated to be appropriate to the level and type 
of services provided.
    (b) Biennial review of operation and maintenance charges. The 
grantee shall review not less often than every 2 years the waste water 
contribution of users and user classes, the total costs of operation and 
maintenance of the treatment works, and its approved user charge system. 
The grantee shall revise the charges for users or user classes to 
accomplish the following:
    (1) Maintain the proportionate distribution of operation and 
maintenance costs among users and user classes as required herein;
    (2) Generate sufficient revenue to pay the total operation and 
maintenance costs necessary to the proper operation and maintenance 
(including replacement) of the treatment works; and
    (3) Apply excess revenues collected from a class of users to the 
costs of operation and maintenance attributable to that class for the 
next year and adjust the rate accordingly.
    (c) Toxic pollutants. The user charge system shall provide that each 
user which discharges any toxic pollutants which cause an increase in 
the cost of managing the effluent or the sludge of the grantee's 
treatment works shall pay for such increased costs.
    (d) Charges for operation and maintenance for extraneous flows. The 
user charge system shall provide that the costs of operation and 
maintenance for all flow not directly attributable to users (i.e., 
infiltration/inflow) be distributed among all users of the grantee's 
treatment works system based upon either of the following:
    (1) In the same manner that it distributes the costs of operation 
and maintenance among users (or user classes) for their actual use, or
    (2) Under a system which uses one of any combination of the 
following factors on a reasonable basis:
    (i) Flow volume of the users;
    (ii) Land area of the users;
    (iii) Number of hookups or discharges to the users;
    (iv) Property valuation of the users, if the grantee has a user 
charge system based on ad valorem taxes approved under Sec. 35.929-1(b).
    (e) Adoption of system. One or more municipal legislative enactments 
or other appropriate authority must incorporate the user charge system. 
If the project is a regional treatment system accepting wastewaters from 
other municipalities, the subscribers receiving waste treatment services 
from the grantee shall adopt user charge systems in accordance with 
section 204(b)(1)(A) of the Act and Sec. Sec. 35.929 through 35.929-3. 
These user charge systems shall also be incorporated in appropriate 
municipal legislative enactments or other appropriate authority of all 
municipalities contributing wastes to the treatment works. The public 
shall be informed of the financial impact of the user charge system on 
them and shall be consulted prior to adoption of the system, in 
accordance with 40 CFR part 25.
    (f) Notification. Each user charge system must provide that each 
user be notified, at least annually, in conjunction with a regular bill, 
of the rate and that portion of the user charges or ad valorem taxes 
which are attributable to waste water treatment services.
    (g) Inconsistent agreements. The grantee may have preexisting 
agreements which address: (1) The reservation of capacity in the 
grantee's treatment works, or (2) the charges to be collected by the 
grantee in providing wastewater treatment services or reserving 
capacity. The user charge system shall take precedence over any terms or 
conditions of agreements or contracts between the grantee and users 
(including industrial users, special districts, other municipalities, or

[[Page 462]]

Federal agencies or installations) which are inconsistent with the 
requirements of section 204(b)(1)(A) of the Act and these regulations.
    (h) Costs of pretreatment program. A user charge system submitted by 
a municipality with an approved pretreatment program shall provide that 
the costs necessary to carry out the program and to comply with any 
applicable requirements of section 405 of the Act and related 
regulations are included within the costs of operation and maintenance 
of the system and paid through user charges, or are paid in whole or in 
part by other identified sources of funds.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 10304, Feb. 16, 1979]



Sec. 35.929-3  Implementation of the user charge system.

    (a) When a grantee's user charge system is approved, implementation 
of the approved system shall become a condition of the grant.
    (b) The grantee shall maintain such records as are necessary to 
document compliance with these regulations.
    (c) Appendix B to this subpart contains guidelines with illustrative 
examples of acceptable user charge systems.
    (d) The Regional Administrator may review, no more often than 
annually, a grantee's user charge system to assure that it continues to 
meet the requirements of Sec. Sec. 35.929-1 through 35.929-3.



Sec. 35.930  Award of grant assistance.

    The Regional Administrator's approval of an application or 
amendments to it through execution of a grant agreement (including a 
grant amendment), in accordance with Sec. 30.345 of this subchapter, 
shall constitute a contractual obligation of the United States for the 
payment of the Federal share of the allowable project costs, as 
determined by the Regional Administrator. Information about the approved 
project furnished in accordance with Sec. 35.920-3 shall be considered 
incorporated in the grant agreement.



Sec. 35.930-1  Types of projects.

    (a) The Regional Administrator is authorized to award grant 
assistance for the following types of projects:
    (1) Step 1. A facilities plan and related step 1 elements (see 
Sec. 35.920-3(b)), if he determines that the applicant has submitted the 
items required under Sec. 35.920-3(a); (In the case of grant assistance 
awarded solely for the acquisition of eligible land, the following 
provisions are deferred until the award of the ensuing step 3 assistance 
for the construction of facilities: Sections 35.925-10, 35.925-11(b), 
35.935-12 (c) and (d), 35.935-13(c), 35.935-15(c), 35.935-16 (b) and 
(c));
    (2) Step 2. Construction drawings and specifications, if he 
determines that the applicant has submitted the items required under 
Sec. 35.920-3(b);
    (3) Step 3. Building and erection of a treatment works, if he 
determines that the applicant has submitted the items required under 
Sec. 35.920-3(c); or
    (4) Steps 2 and 3. A combination of design (step 2) and construction 
(step 3) for a treatment works (see Sec. 35.909) if he determines that 
the applicant has submitted the items required under Sec. 35.920-3(d).
    (b) The Regional Administrator may award Federal assistance by a 
grant or grant amendment from any allotment or reallotment available to 
a State under Sec. 35.910 et seq. for payment of 100 percent of the cost 
of construction of treatment works required to train and upgrade waste 
treatment works operations and maintenance personnel and for the costs 
of other operator training programs. Costs of other operator training 
programs are limited to mobile training units, classroom rental, 
specialized instructors, and instructional material, under section 
109(b) of the Act.
    (1) Where a grant is made to serve two or more States, the 
Administrator is authorized to make an additional grant for a 
supplemental facility in each State. The Federal funds awarded under 
section 109(b) to any State for all training facilities or programs 
shall not exceed $500,000.
    (2) Any grantee who received a grant under section 109(b) before 
December 27, 1977, is eligible to have the grant increased by funds made 
available under the Act, not to exceed 100 percent of eligible costs.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 39340, July 5, 1979]

[[Page 463]]



Sec. 35.930-2  Grant amount.

    The grant agreement shall set forth the amount of grant assistance. 
The grant amount may not exceed the amount of funds available from the 
State allotments and reallotments under Sec. 35.910 et seq. Grant 
payments will be limited to the Federal share of allowable project costs 
incurred within the grant amount or any increases effected through grant 
amendments (see Sec. 35.955).



Sec. 35.930-3  Grant term.

    The grant agreement shall establish the period within which the 
project must be completed, in accordance with Sec. 30.345-1 of this 
chapter. This time period is subject to extension for excusable delay, 
at the discretion of the Regional Administrator.



Sec. 35.930-4  Project scope.

    The grant agreement must define the scope of the project for which 
Federal assistance is awarded under the grant. The project scope must 
include a step or an identified segment. Grant assistance may be awarded 
for a segment of step 3 treatment works construction, when that segment 
in and of itself does not provide for achievement of applicable effluent 
discharge limitations, if:
    (a) The segment is to be a component of an operable treatment works 
which will achieve the applicable effluent discharge limitations; and
    (b) A commitment for completion of the entire treatment works is 
submitted to the Regional Administrator and that commitment is reflected 
in a special condition in the grant agreement.



Sec. 35.930-5  Federal share.

    (a) General. The grant shall be 75 percent of the estimated total 
cost of construction that the Regional Administrator approves in the 
grant agreement, except as otherwise provided in paragraphs (b) and (c) 
of this section and in Sec. Sec. 35.925-15, 35.925-16, 35.925-17, 
35.930-1(b), and paragraph 10 of appendix A.
    (b) Innovative and alternative technology. In accordance with 
Sec. 35.908(b), the amount of any step 2, step 3, or step 2+3 grant 
assistance awarded from funds allotted for fiscal years 1979, 1980, and 
1981 shall be 85 percent of the estimated cost of construction for those 
eligible treatment works or significant portions of them that the 
Regional Administrator determines meet the criteria for innovative or 
alternative technology in appendix E. These grants depend on the 
availability of funds from the reserve under Sec. 35.915-1(b). The 
proportional State contribution to the non-Federal share of construction 
costs for 85-percent grants must be the same as or greater than the 
proportional State contribution (if any) to the non-Federal share of 
eligible construction costs for all treatment works which receive 75-
percent grants in the State.
    (c) Modification and replacement of innovative and alternative 
projects. In accordance with Sec. 35.908(c) and procedures published by 
EPA, the Regional Administrator may award grant assistance to fund 100 
percent of the eligible costs of the modification or replacement of any 
treatment works constructed with grant assistance based upon a Federal 
share of 85 percent under paragraph (b) of this section.



Sec. 35.930-6  Limitation on Federal share.

    The grantee must exert its best efforts to perform the project work 
as specified in the grant agreement within the approved cost ceiling. If 
at any time the grantee believes that the costs which it expects to 
incur in the performance of the project will exceed or be substantially 
less than the previously approved estimated total project costs, the 
grantee must notify the Regional Administrator and the State agency 
promptly in writing. As soon as practicable, the grantee must give the 
revised estimate of total cost for the performance of the project (see 
Sec. 30.900 of this subchapter). Delay in submission of the notice and 
excess cost information may prejudice approval of an increase in the 
grant amount. The United States shall not be obligated to pay for costs 
incurred in excess of the approved grant amount or any amendment to it 
until the State has approved an increase in the grant amount from 
available allotments under Sec. 35.915 and the Regional Administrator 
has issued a written grant amendment under Sec. 35.955.

[[Page 464]]



Sec. 35.935  Grant conditions.

    In addition to the EPA general grant conditions (subpart C and 
appendix A to part 30 of this subchapter), each treatment works grant 
shall be subject to the following conditions:



Sec. 35.935-1  Grantee responsibilities.

    (a) Review or approval of project plans and specifications by or for 
EPA is for administrative purposes only and does not relieve the grantee 
of its responsibility to design, construct, operate, and maintain the 
treatment works described in the grant application and agreement.
    (b) By its acceptance of the grant, the grantee agrees to complete 
the treatment works in accordance with the facilities plan, plans and 
specifications, and related grant documents approved by the Regional 
Administrator, and to maintain and operate the treatment works to meet 
the enforceable requirements of the Act for the design life of the 
treatment works. The Regional Administrator is authorized to seek 
specific enforcement or recovery of funds from the grantee, or to take 
other appropriate action (see Sec. 35.965), if he determines that the 
grantee has failed to make good faith efforts to meet its obligations 
under the grant.
    (c) The grantee agrees to pay, pursuant to section 204(a)(4) of the 
Act, the non-Federal costs of treatment works construction associated 
with the project and commits itself to complete the construction of the 
operable treatment works and complete waste treatment system (see 
definitions in Sec. 35.905) of which the project is a part.
    (d) The Regional Administrator may include special conditions in the 
grant or administer this subpart in the manner which he determines most 
appropriate to coordinate with, restate, or enforce NPDES permit terms 
and schedules.



Sec. 35.935-2  Procurement.

    The grantee and party to any subagreement must comply with the 
applicable provisions of Sec. Sec. 35.935 through 35.939 with respect to 
procurement for step 1, 2, or 3 work. The Regional Administrator will 
cause appropriate review of grantee procurement to be made.



Sec. 35.935-3  Property.

    (a) The grantee must comply with the property provisions of 
Sec. 30.810 et seq. of this subchapter with respect to all property 
(real and personal) acquired with project funds.
    (b) With respect to real property (including easements) acquired in 
connection with the project, whether such property is acquired with or 
in anticipation of EPA grant assistance or solely with funds furnished 
by the grantee or others:
    (1) The acquisition must be conducted in accordance with part 4 of 
this chapter;
    (2) Any displacement of a person by or as a result of any 
acquisition of the real property shall be conducted under the applicable 
provisions of part 4 of this chapter; and
    (3) The grantee must obtain (before initiation of step 3 
construction), and must thereafter retain, a fee simple or such estate 
or interest in the site of a step 3 project, and rights of access, as 
the Regional Administrator finds sufficient to assure undisturbed use 
and possession for the purpose of construction and operation for the 
estimated life of the project. If a step 3 project serves more than one 
municipality, the grantee must insure that the participating 
municipalities have, or will have before the initiation of step 3 
construction, such interests or rights in land as the Regional 
Administrator finds sufficient to assure their undisturbed utilization 
of the project site for the estimated life of the project.
    (c) With respect to real property acquired with EPA grant 
assistance, the grantee must defer acquisition of such property until 
approval of the Regional Administrator is obtained under Sec. 35.940-3.



Sec. 35.935-4  Step 2+3 projects.

    A grantee which has received step 2+3 grant assistance must make 
submittals required by Sec. 35.920-3(c), together with approvable user 
charge and industrial cost recovery systems and a preliminary plan of 
operation. The Regional Administrator shall give written approval of 
these submittals before advertising for bids on the step 3 construction 
portion of the step 2+3

[[Page 465]]

project. The cost of step 3 work initiated before such approval is not 
allowable. Failure to make the above submittals as required is cause for 
invoking sanctions under Sec. 35.965.



Sec. 35.935-5  Davis-Bacon and related statutes.

    Before soliciting bids or proposals for step 3-type work, the 
grantee must consult with the Regional Administrator concerning 
compliance with Davis-Bacon and other statutes referenced in Sec. 30.415 
et seq. of this subchapter.



Sec. 35.935-6  Equal employment opportunity.

    Contracts involving step 3-type work of $10,000 or more are subject 
to equal employment opportunity requirements under Executive Order 11246 
(see part 8 of this chapter). The grantee must consult with the Regional 
Administrator about equal employment opportunity requirements before 
issuance of an invitation for bids where the cost of construction work 
is estimated to be more than $1 million or where required by the grant 
agreement.



Sec. 35.935-7  Access.

    The grantee must insure that EPA and State representatives will have 
access to the project work whenever it is in preparation or progress. 
The grantee must provide proper facilities for access and inspection. 
The grantee must allow the Regional Administrator, the Comptroller 
General of the United States, the State agency, or any authorized 
representative, to have access to any books, documents, plans, reports, 
papers, and other records of the contractor which are pertinent to the 
project for the purpose of making audit, examination, excerpts, copies 
and transcriptions. The grantee must insure that a party to a 
subagreement will provide access to the project work, sites, documents, 
and records. See Sec. Sec. 30.605 and 30.805 of this subchapter, clause 
9 of appendix C-1 to this subpart, and clause 10 of appendix C-2 to this 
subpart.



Sec. 35.935-8  Supervision.

    In the case of any project involving Step 3, the grantee will 
provide and maintain competent and adequate engineering supervision and 
inspection of the project to ensure that the construction conforms with 
the approved plans and specifications.



Sec. 35.935-9  Project initiation and completion.

    (a) The grantee agrees to expeditiously initiate and complete the 
step 1, 2, or 3 project, or cause it to be constructed and completed, in 
accordance with the grant agreement and application, including the 
project progress schedule, approved by the Regional Administrator. 
Failure of the grantee to promptly initiate and complete step 1, 2, or 3 
project construction may result in annulment or termination of the 
grant.
    (b) No date reflected in the grant agreement, or in the project 
completion schedule, or extension of any such date, shall modify any 
compliance date established in an NPDES permit. It is the grantee's 
obligation to request any required modification of applicable permit 
terms or other enforceable requirements.
    (c) The invitation for bids for step 3 project work is expected to 
be issued promptly after grant award. Generally this action should occur 
within 90 to 120 days after award unless compliance with State or local 
laws requires a longer period of time. The Regional Administrator shall 
annul or terminate the grant if initiation of all significant elements 
of step 3 construction has not occurred within 12 months of the award 
for the step 3 project (or approval of plans and specifications, in the 
case of a step 2+3 project). (See definition of ``initiation of 
construction'' under ``construction'' in Sec. 35.905.) However, the 
Regional Administrator may defer (in writing) the annulment or 
termination for not more than 6 additional months if:
    (1) The grantee has applied for and justified the extension in 
writing to the Regional Administrator;
    (2) The grantee has given written notice of the request for 
extension to the NPDES permit authority;
    (3) The Regional Administrator determines that there is good cause 
for the delay in initiation of project construction; and

[[Page 466]]

    (4) The State agency concurs in the extension.



Sec. 35.935-10  Copies of contract documents.

    In addition to the notification of project changes under Sec. 30.900 
of this chapter, a grantee must promptly submit to the Regional 
Administrator a copy of any prime contract or modification of it and of 
revisions to plans and specifications.



Sec. 35.935-11  Project changes.

    (a) In addition to the notification of project changes required 
under Sec. 30.900-1 of this chapter, the Regional Administrator's and 
(where necessary) the State agency's prior written approval is required 
for:
    (1) Project changes which may--
    (i) Substantially alter the design and scope of the project;
    (ii) Alter the type of treatment to be provided;
    (iii) Substantially alter the location, size, capacity, or quality 
of any major item of equipment; or
    (iv) Increase the amount of Federal funds needed to complete the 
project.

However, prior EPA approval is not required for changes to correct minor 
errors, minor changes, or emergency changes; and
    (2) Subagreement amendments amounting to more than $100,000 for 
which EPA review is required under Sec. Sec. 35.937-6(b) and 35.938-5 
(d) and (g).
    (b) No approval of a project change under Sec. 30.900 of this 
chapter shall obligate the United States to any increase in the amount 
of the grant or grant payments unless a grant increase is also approved 
under Sec. 35.955. This does not preclude submission or consideration of 
a request for a grant amendment under Sec. 30.900-1 of this chapter.



Sec. 35.935-12  Operation and maintenance.

    (a) The grantee must make provision satisfactory to the Regional 
Administrator for assuring economic and effective operation and 
maintenance of the treatment works in accordance with a plan of 
operation approved by the State water pollution control agency or, as 
appropriate, the interstate agency.
    (b) As a minimum, the plan shall include provision for:
    (1) An operation and maintenance manual for each facility;
    (2) An emergency operating and response program;
    (3) Properly trained management, operation and maintenance 
personnel;
    (4) Adequate budget for operation and maintenance;
    (5) Operational reports;
    (6) Provisions for laboratory testing and monitoring adequate to 
determine influent and effluent characteristics and removal efficiencies 
as specified in the terms and conditions of the NPDES permit;
    (7) An operation and maintenance program for the sewer system.
    (c) Except as provided in paragraphs (d) and (e) of this section, 
the Regional Administrator shall not pay--
    (1) More than 50 percent of the Federal share of any step 3 project 
unless the grantee has furnished a draft of the operation and 
maintenance manual for review, or adequate evidence of timely 
development of such a draft; or
    (2) More than 90 percent of the Federal share unless the grantee has 
furnished a satisfactory final operation and maintenance manual.
    (d) In projects where segmenting of an operable treatment works has 
occurred, the Regional Administrator shall not pay--
    (1) More than 50 percent of the Federal share of the total of all 
interdependent step 3 segments unless the grantee has furnished a draft 
of the operation and maintenance manual for review, or adequate evidence 
of timely development of such a draft, or
    (2) More than 90 percent of the Federal share of the total of all 
interdependent step 3 segments unless the grantee has furnished a 
satisfactory final operation and maintenance manual.
    (e) In multiple facility projects where an element or elements of 
the treatment works are operable components and have been completely 
constructed and placed in operation by the grantee, the Regional 
Administrator shall not make any additional step 3 payment unless the 
operation and maintenance manual (or those portions associated with the 
operating elements of the

[[Page 467]]

treatment works) submitted by the grantee has been approved by the 
Regional Administrator.



Sec. 35.935-13  Submission and approval of user charge systems.

    The grantee shall obtain the approval of the Regional Administrator 
of its system of user charges. (See also Sec. 35.929 et seq.)
    (a) Step 3 grant assistance awarded under regulations promulgated on 
February 11, 1974, (1) Except as paragraph (a)(2) of this section 
provides, the grantee must obtain the Regional Administrator's approval 
of its system of user charges based on actual use which complies with 
Sec. 35.929-1(a). The Regional Administrator shall not pay more than 50 
percent of the Federal share of any step 3 project unless the grantee 
has submitted adequate evidence of timely development of its system of 
user charges nor shall the Regional Administrator pay more than 80 
percent of the Federal share unless he has approved the system.
    (2) A grantee which desires approval of a user charge system based 
on ad valorem taxes in accordance with Sec. 35.929-1(b) shall submit to 
the Regional Administrator by July 24, 1978, evidence of compliance of 
its system with the criteria in Sec. 35.929-1 (b)(1) through (b)(3). As 
soon as possible, the Regional Administrator shall advise the grantee if 
the system complies with Sec. 35.929-1 (b)(1). The Regional 
Administrator's determination may be appealed in accordance with subpart 
J, ``Disputes,'' of part 30 of this subchapter.
    (i) Grantees whose ad valorem tax systems meet the criteria of 
Sec. 35.929-1 (b)(1) through (b)(3). Any step 3 payments held by the 
Regional Administrator at 50 percent or 80 percent for failure to comply 
with the requirement for development of a user charge system shall be 
released. However, the grantee shall obtain approval of its user charge 
system by June 30, 1979 or no further payments will be made until the 
sytem is approved and the grants may be terminated or annulled.
    (ii) Grantees whose ad valorem tax systems do not meet the criteria 
of Sec. 35.929-1 (b)(1) through (b)(3). Step 3 grants will continue to 
be administered in accordance with paragraph (a)(1) of this section.
    (b) Step 3 grant assistance awarded after April 24, 1978, but before 
July 1, 1979. The grantee must obtain approval of its user charge system 
based on actual use or ad valorem taxes before July 1, 1979. The 
Regional Administrator may not make any payments on these grants, may 
terminate or annul these grants, and may not award any new step 3 grants 
to the same grantee after June 30, 1979, if the user charge system has 
not been approved. The Regional Administrator shall approve the 
grantee's user charge or ad valorem tax rates and the ordinance required 
under Sec. 35.929-2(e) and the grantee shall enact them before the 
treatment works constructed with the grant are placed in operation.
    (c) Step 3 grant assistance awarded after June 30, 1979. The 
Regional Administrator may not award step 3 grant assistance unless he 
has approved the user charge system based on actual use or ad valorem 
taxes. The Regional Administrator shall approve the grantee's user 
charge or ad valorem tax rates and the ordinance required under 
Sec. 35.929-2(e) and the grantee shall enact them before the treatment 
works constructed with the grant are placed in operation.



Sec. 35.935-14  Final inspection.

    The grantee shall notify the Regional Administrator through the 
State agency of the completion of step 3 project construction. The 
Regional Administrator shall cause final inspection to be made within 60 
days of the receipt of the notice. When final inspection is completed 
and the Regional Administrator determines that the treatment works have 
been satisfactorily constructed in accordance with the grant agreement, 
the grantee may make a request for final payment under Sec. 35.945(e).



Sec. 35.935-15  Submission and approval of industrial cost recovery system.

    The grantee shall obtain the approval of the Regional Administrator 
of its system of industrial cost recovery. (See also Sec. 35.928 et 
seq.)

[[Page 468]]

    (a) Step 3 grant assistance awarded under regulations promulgated on 
February 11, 1974. (1) The grantee must obtain the approval of the 
Regional Administrator for the system of industrial cost recovery (see 
Sec. 35.928 et seq.). The Regional Administrator shall not pay more than 
50 percent of the Federal share of any step 3 project unless the grantee 
has submitted adequate evidence of timely development of its system of 
industrial cost recovery nor shall the Regional Administrator pay more 
than 80 percent of the Federal share unless he has approved the system.
    (2) Payments of grantees held under paragraph (a)(1) of this section 
shall be released after April 25, 1978. However, the grantee shall 
obtain approval of its industrial cost recovery system by June 30, 1979, 
or no further payments will be made until the system is approved.
    (b) Step 3 grant assistance awarded after April 24, 1978, but before 
July 1, 1979. The grantee must obtain approval of its industrial cost 
recovery system under these regulations, except for the ordinance and 
rates, before July 1, 1979. The Regional Administrator shall not make 
any payments on these grants and shall not award any new step 3 grants 
to the same grantee after June 30, 1979, if the industrial cost recovery 
system, except for the ordinance and rates, has not been approved. The 
grantee shall enact the ordinance required under Sec. 35.928-1(h) and 
submit the ordinance and industrial cost recovery system rates to the 
Regional Administrator who must approve the ordinance before the 
treatment works are placed in operation.
    (c) Step 3 grant assistance awarded after June 30, 1979. The grantee 
must obtain the Regional Administrator's approval of the industrial cost 
recovery system under these regulations, except for the ordinance and 
rates, before grant award. The grantee shall enact the ordinance 
required under Sec. 35.928-1(h) and submit the ordinance and industrial 
cost recovery system rates to the Regional Administrator who must 
approve the ordinance before the treatment works are placed in 
operation.



Sec. 35.935-16  Sewer use ordinance and evaluation/rehabilitation program.

    (a) The grantee must obtain the approval of the Regional 
Administrator of its sewer use ordinance under Sec. 35.927-4.
    (b) Except as provided in paragraphs (c) and (d) of this section, 
the Regional Administrator shall not pay more than 80 percent of the 
Federal share of any step 3 project unless he has approved the grantee's 
sewer use ordinance, and the grantee is complying with the sewer system 
evaluation and rehabilitation schedule incorporated in the grant 
agreement under Sec. 35.927-5.
    (c) In projects where segmenting of an operable treatment works has 
occurred, the Regional Administrator shall not pay more than 80 percent 
of the Federal share of the total of all interdependent step 3 segments 
unless he has approved the grantee's sewer use ordinance and the grantee 
is complying with the sewer system evaluation and rehabilitation 
schedule incorporated in the grant agreement under Sec. 35.927-5.
    (d) In mulitple facility projects where an element or elements of 
the treatment works are operable components and have been completely 
constructed and placed in operation by the grantee, the Regional 
Administrator shall not make any additional step 3 payment unless he has 
approved the grantee's sewer use ordinance and the grantee is complying 
with the sewer system evaluation and rehabilitation schedule 
incorporated in the grant agreement under Sec. 35.927-5.



Sec. 35.935-17  Training facility.

    If assistance has been provided for the construction of a treatment 
works required to train and upgrade waste treatment personnel under 
Sec. Sec. 35.930-1(b) and 35.920-3(e), the grantee must operate the 
treatment works as a training facility for a period of at least 10 years 
after construction is completed.



Sec. 35.935-18  Value engineering.

    A grantee must comply with the applicable value engineering 
requirements of Sec. 35.926.

[[Page 469]]



Sec. 35.935-19  Municipal pretreatment program.

    The grantee must obtain approval by the Regional Administrator of 
the municipal pretreatment program in accordance with part 403 of this 
chapter. Prior to granting such approval, the Regional Administrator 
shall not pay more than 90 percent of the Federal share of any step 3 
project or cost of step 3 work under a step 2+3 project awarded after 
October 1, 1978, except that for any such grant assistance awarded 
before December 31, 1980, the Regional Administrator may continue grant 
payments if he determines that significant progress has been made (and 
is likely to continue) toward the development of an approvable 
pretreatment program and that withholding of grant payments would not be 
in the best interest of protecting the environment.



Sec. 35.935-20  Innovative processes and techniques.

    If the grantee receives 85-percent grant assistance for innovative 
processes and techniques, the following conditions apply during the 5-
year period following completion of construction:
    (a) The grantee shall permit EPA personnel and EPA designated 
contractors to visit and inspect the treatment works at any reasonable 
time in order to review the operation of the innovative processes or 
techniques.
    (b) If the Regional Administrator requests, the grantee will provide 
EPA with a brief written report on the construction, operation, and 
costs of operation of the innovative processes or techniques.



Sec. 35.936  Procurement.

    (a) Sections 35.936 through 35.939 set forth policies and minimum 
standards for procurement of architectural or engineering services as 
defined in Sec. 35.937 and construction contracts as described in 
Sec. 35.938 by grantees under all steps of grants for construction of 
treatment works. Acquisition of real property shall be conducted in 
accordance with part 4, subpart F of this chapter. Other procurements of 
goods and services shall be conducted in accordance with the provisions 
of part 33 of this subchapter.
    (b) This subpart does not apply to work beyond the scope of the 
project for which grant assistance is awarded (i.e., ineligible work).



Sec. 35.936-1  Definitions.

    As used in Sec. Sec. 35.936 through 35.939, the following words and 
terms shall have the meaning set forth below. All terms not defined 
herein shall have the meaning given to them in Sec. 30.135 of this 
subchapter, and in Sec. 35.905.
    (a) Grant agreement. The written agreement and amendments thereto 
between EPA and a grantee in which the terms and conditions governing 
the grant are stated and agreed to by both parties under Sec. 30.345 of 
this subchapter.
    (b) Subagreement. A written agreement between an EPA grantee and 
another party (other than another public agency) and any tier of 
agreement thereunder for the furnishing of services, supplies, or 
equipment necessary to complete the project for which a grant was 
awarded, including contracts and subcontracts for personal and 
professional services, agreements with consultants and purchase orders, 
but excluding employment agreements subject to State or local personnel 
systems. (See Sec. Sec. 35.937-12 and 35.938-9 regarding subcontracts of 
any tier under prime contracts for architectural or engineering services 
or construction awarded by the grantee--generally applicable only to 
subcontracts in excess of $10,000.)
    (c) Contractor. A party to whom a subagreement is awarded.
    (d) Grantee. Any municipality which has been awarded a grant for 
construction of a treatment works under this subpart. In addition, where 
appropriate in Sec. Sec. 35.936 through 35.939, grantee may also refer 
to an applicant for a grant.



Sec. 35.936-2  Grantee procurement systems; State or local law.

    (a) Grantee procurement systems. Grantees may use their own 
procurement systems and procedures which meet applicable requirements of 
State, territorial, or local laws and ordinances to the extent that 
these systems and procedures do not conflict

[[Page 470]]

with the minimum requirements of this subchapter.
    (b) State or local law. The Regional Administrator will generally 
rely on a grantee's determination regarding the application of State or 
local law to issues which are primarily determined by such law. The 
Regional Administrator may request the grantee to furnish a written 
legal opinion adequately addressing any such legal issues. The Regional 
Administrator will accept the grantee's determination unless he finds 
that it does not have a rational basis.
    (c) Preference. State or local laws, ordinances, regulations or 
procedures which effectively give local or in-State bidders or proposers 
preference over other bidders or proposers shall not be employed in 
evaluating bids or proposals for subagreements under a grant.



Sec. 35.936-3  Competition.

    EPA's policy is to encourage free and open competition appropriate 
to the type of project work to be performed.



Sec. 35.936-4  Profits.

    Only fair and reasonable profits may be earned by contractors in 
subagreements under EPA grants. See Sec. 35.937-7 for discussion of 
profits under negotiated subagreements for architectural or engineering 
services, and Sec. 35.938-5(f) for discussion of profits under 
negotiated change orders to construction contracts. Profit included in a 
formally advertised, competitively bid, fixed price construction 
contract awarded under Sec. 35.938 is presumed reasonable.



Sec. 35.936-5  Grantee responsibility.

    (a) The grantee is responsible for the administration and successful 
accomplishment of the project for which EPA grant assistance is awarded. 
The grantee is responsible for the settlement and satisfaction of all 
contractual and administrative issues arising out of subagreements 
entered into under the grant (except as Sec. 35.936-6 provides) in 
accordance with sound business judgment and good administrative 
practice. This includes issuance of invitations for bids or requests for 
proposals, selection of contractors, award of contracts, protests of 
award, claims, disputes, and other related procurement matters.
    (b) With the prior written approval of the Regional Administrator, 
the grantee may retain an individual or firm to perform these functions. 
Such an agent acts for the grantee and is subject to the provisions of 
this subpart which apply to the grantee.
    (c) In accordance with Sec. 35.970, a grantee may request technical 
and legal assistance from the Regional Administrator for the 
administration and enforcement of any contract related to treatment 
works that are assisted by an EPA grant. The Regional Administrator's 
assistance does not release the grantee from those responsibilities 
identified in paragraph (a) of this section.



Sec. 35.936-6  EPA responsibility.

    Generally, EPA will only review grantee compliance with Federal 
requirements applicable to a grantee's procurement. However, where 
specifically provided in this chapter (e.g., Sec. Sec. 8.8(j) and 
35.939), EPA is responsible for determining compliance with Federal 
requirements.



Sec. 35.936-7  Small and minority business.

    Grantees shall make positive efforts to use small business and 
minority-owned business sources of supplies and services. Such efforts 
should allow these sources the maximum feasible opportunity to compete 
for subagreements to be performed using Federal grant funds.



Sec. 35.936-8  Privity of contract.

    Neither EPA nor the United States shall be a party to any 
subagreement (including contracts or subcontracts), nor to any 
solicitation or request for proposals. (See Sec. Sec. 35.937-9(a), 
35.938-4(c)(5), and appendices C-1 and C-2 to this subpart for the 
required solicitation statement and contract provisions.) However, in 
accordance with Sec. 35.970 the Regional Administrator, if a grantee 
requests, may provide technical and legal assistance in the 
administration and enforcement of any contract related to treatment 
works for which an EPA grant was made.

[[Page 471]]



Sec. 35.936-9  Disputes.

    Only an EPA grantee may initiate and prosecute an appeal to the 
Administrator under the disputes provision of a grant with respect to 
its subagreements (see subpart J of part 30 of this subchapter). Neither 
a contractor nor a subcontractor may prosecute an appeal under the 
disputes provisions of a grant in its own name or interest.



Sec. 35.936-10  Federal procurement regulations.

    Regulations applicable to direct Federal procurement shall not be 
applicable to subagreements under grants except as stated in this 
subchapter.



Sec. 35.936-11  General requirements for subagreements.

    Subagreements must:
    (a) Be necessary for and directly related to the accomplishment of 
the project work;
    (b) Be in the form of a bilaterally executed written agreement 
(except for small purchases of $10,000 or less);
    (c) Be for monetary or in-kind consideration; and
    (d) Not be in the nature of a grant or gift.



Sec. 35.936-12  Documentation.

    (a) Procurement records and files for purchases in excess of $10,000 
shall include the following:
    (1) Basis for contractor selection;
    (2) Justification for lack of competition if competition appropriate 
to the type of project work to be performed is required but is not 
obtained; and
    (3) Basis for award cost or price.
    (b) The grantee or contractors of the grantee must retain 
procurement documentation required by Sec. 30.805 of this subchapter and 
by this subpart, including a copy of each subagreement, for the period 
of time specified in Sec. 30.805. The documentation is subject to all 
the requirements of Sec. 30.805. A copy of each subagreement must be 
furnished to the project officer upon request.



Sec. 35.936-13  Specifications.

    (a) Nonrestrictive specifications. (1) No specification for bids or 
statement of work in connection with such works shall be written in such 
a manner as to contain proprietary, exclusionary, or discriminatory 
requirements other than those based upon performance, unless such 
requirements are necessary to test or demonstrate a specific thing or to 
provide for necessary interchangeability of parts and equipment, or at 
least two brand names or trade names of comparable quality or utility 
are listed and are followed by the words ``or equal.'' If brand or trade 
names are specified, the grantee must be prepared to identify to the 
Regional Administrator or in any protest action the salient requirements 
(relating to the minimum needs of the project) which must be met by any 
offeror. The single base bid method of solicitation for equipment and 
parts for determination of a low, responsive bidder may not be utilized. 
With regard to materials, if a single material is specified, the grantee 
must be prepared to substantiate the basis for the selection of the 
material.
    (2) Project specifications shall, to the extent practicable, provide 
for maximum use of structures, machines, products, materials, 
construction methods, and equipment which are readily available through 
competitive procurement, or through standard or proven production 
techniques, methods, and processes, except to the extent that innovative 
technologies may be used under Sec. 35.908 of this subpart.
    (b) Sole source restriction. A specification shall not require the 
use of structures, materials, equipment, or processes which are known to 
be available only from a sole source, unless the Regional Administrator 
determines that the grantee's engineer has adequately justified in 
writing that the proposed use meets the particular project's minimum 
needs or the Regional Administrator determines that use of a single 
source is necessary to promote innovation (see Sec. 35.908). Sole source 
procurement must be negotiated under Sec. 33.500 et seq., including full 
cost review.
    (c) Experience clause restriction. The general use of experience 
clauses requiring equipment manufacturers to have a record of 
satisfactory operation for a specified period of time or of bonds or 
deposits to guarantee replacement in the event of failure is restricted 
to special cases where the grantee's engineer adequately justifies

[[Page 472]]

any such requirement in writing. Where such justification has been made, 
submission of a bond or deposit shall be permitted instead of a 
specified experience period. The period of time for which the bond or 
deposit is required should not exceed the experience period specified. 
No experience restriction will be permitted which unnecessarily reduces 
competition or innovation.
    (d) Buy American--(1) Definitions. As used in this subpart, the 
following definitions apply:
    (i) Construction material means any article, material, or supply 
brought to the construction site for incorporation in the building or 
work.
    (ii) Component means any article, material, or supply directly 
incorporated in construction material.
    (iii) Domestic construction material means an unmanufactured 
construction material which has been mined or produced in the United 
States, or a manufactured construction material which has been 
manufactured in the United States if the cost of its components which 
are mined, produced, or manufactured in the United States exceeds 50 
percent of the cost of all its components.
    (iv) Nondomestic construction material means a construction material 
other than a domestic construction material.
    (2) Domestic preference. Domestic construction material may be used 
in preference to nondomestic materials if it is priced no more than 6 
percent higher than the bid or offered price of the nondomestic 
materials including all costs of delivery to the construction site, any 
applicable duty, whether or not assessed. Computations will normally be 
based on costs on the date of opening of bids or proposals.
    (3) Waiver. The Regional Administrator may waive the Buy American 
provision based upon those factors that he considers relevant, 
including:
    (i) Such use is not in the public interest;
    (ii) The cost is unreasonable;
    (iii) The Agency's available resources are not sufficient to 
implement the provision, subject to the Deputy Administrator's 
concurrence;
    (iv) The articles, materials, or supplies of the class or kind to be 
used or the articles, materials, or supplies from which they are 
manufactured are not mined, produced, or manufactured in the United 
States in sufficient and reasonably available commercial quantities or 
satisfactory quality for the particular project; or
    (v) Application of this provision is contrary to multilateral 
government procurement agreements, subject to the Deputy Administrator's 
concurrence.
    (4) Contract provision. Notwithstanding any other provision of this 
subpart, bidding documents and construction contracts for any step 3 
project for which the Regional Administrator receives an application 
after February 1, 1978, shall contain the ``Buy American'' provision 
which requires use of domestic construction materials in preference to 
nondomestic construction materials.
    (5) Substitution. If a nondomestic construction material or 
component is proposed for use, a bidder or contractor may substitute an 
approved domestic material or component (at no change in price), if 
necessary to comply with this subsection.
    (6) Procedures. The Regional Administrator may use the appropriate 
procedures of Sec. 35.939 in making the determinations with respect to 
this subsection. He shall generally observe the Buy American procedures, 
regulations, precedents, and requirements of other Federal departments 
and agencies.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 37596, June 27, 1979; 
44 FR 39340, July 5, 1979]



Sec. 35.936-14  Force account work.

    (a) A grantee must secure the project officer's prior written 
approval for use of the force account method for (1) any step 1 or step 
2 work in excess of $10,000; (2) any sewer rehabilitation work in excess 
of $25,000 performed during step 1 (see Sec. 35.927-3(a)); or (3) any 
step 3 work in excess of $25,000; unless the grant agreement stipulates 
the force account method.
    (b) The project officer's approval shall be based on the grantee's 
demonstration that he possesses the necessary competence required to 
accomplish such work and that (1) the work

[[Page 473]]

can be accomplished more economically by the use of the force account 
method, or (2) emergency circumstances dictate its use.
    (c) Use of the force account method for step 3 construction shall 
generally be limited to minor portions of a project.



Sec. 35.936-15  Limitations on subagree-ment award.

    No subagreement shall be awarded:
    (a) To any person or organization which does not meet the 
responsibility standards in Sec. 30.340-2 (a) through (d) and (g) of 
this subchapter;
    (b) If any portion of the contract work not exempted by Sec. 30.420-
3(b) of this subchapter will be performed at a facility listed by the 
Director, EPA Office of Federal Activities, in violation of the 
antipollution requirements of the Clean Air Act and the Clean Water Act, 
as set forth in Sec. 30.420-3 of this subchapter and 40 CFR part 15 
(Administration of the Clean Air Act and the Federal Water Pollution 
Control Act with respect to Federal contracts, grants, or loans); or
    (c) To any person or organization which is ineligible under the 
conflict of interest requirements of Sec. 30.420-4 of this subchapter.



Sec. 35.936-16  Code or standards of conduct.

    (a) The grantee must maintain a code or standards of conduct which 
shall govern the performance of its officers, employees, or agents in 
the conduct of project work, including procurement and expenditure of 
project funds. The grantee's officers, employees, or agents shall 
neither solicit nor accept gratuities, favors, or anything of monetary 
value from contractors or potential contractors. The grantee must avoid 
personal or organizational conflicts of interest or noncompetitive 
procurement practices which restrict or eliminate competition or 
otherwise restrain trade.
    (b) To the extent permissible by State or local law or formal 
institutional requirements and procedures, the standards shall provide 
for penalties, sanctions, or other adequate disciplinary actions to be 
instituted for project-related violations of law or of the code or 
standards of conduct by either the grantee officers, employees, or 
agents, or by contractors or their agents.
    (c) The grantee must inform the project officer in writing of each 
serious allegation of a project-related violation and of each known or 
proven project-related violation of law or code or standards of conduct, 
by its officers, employees, contractors, or by their agents. The grantee 
must also inform the project officer of the prosecutive or disciplinary 
action the grantee takes, and must cooperate with Federal officials in 
any Federal prosecutive or disciplinary action. Under Sec. 30.245 of 
this subchapter, the project officer must notify the Director, EPA 
Security and Inspection Division, of all notifications from the grantee.
    (d) EPA shall cooperate with the grantee in its disciplinary or 
prosecutive actions taken for any apparent project-related violations of 
law or of the grantee's code or standards of conduct.



Sec. 35.936-17  Fraud and other unlawful or corrupt practices.

    All procurements under grants are covered by the provisions of 
Sec. 30.245 of this subchapter relating to fraud and other unlawful or 
corrupt practices.



Sec. 35.936-18  Negotiation of subagree-ments.

    (a) Formal advertising, with adequate purchase descriptions, sealed 
bids, and public openings shall be the required method of procurement 
unless negotiation under paragraph (b) of this section is necessary to 
accomplish sound procurement.
    (b) All negotiated procurement shall be conducted in a manner to 
provide to the maximum practicable extent open and free competition 
appropriate to the type of project work to be performed. The grantee is 
authorized to negotiate subagreements in accordance with the applicable 
procedures of this subchapter (see Sec. Sec. 35.937 et seq. and 35.500 
et seq.) if any of the following conditions exist:
    (1) Public exigency will not permit the delay incident to formally 
advertised procurement (e.g., an emergency procurement).

[[Page 474]]

    (2) The aggregate amount involved does not exceed $10,000 (see 
Sec. 35.936-19 for small purchases).
    (3) The material or service to be procured is available from only 
one person or entity. If the procurement is expected to aggregate more 
than $10,000, the grantee must document its file with a justification of 
the need for noncompetitive procurement, and provide such documentation 
to the project officer on request.
    (4) The procurement is for personal or professional services 
(including architectural or engineering services) or for any service 
that a university or other educational institution may render.
    (5) No responsive, responsible bids at acceptable price levels have 
been received after formal advertising, and, with respect to procurement 
under Sec. 35.938-4, the Regional Administrator's prior written approval 
has been obtained.
    (6) The procurement is for materials or services where the prices 
are established by law.
    (7) The procurement is for technical items or equipment requiring 
standardization and interchangeability of parts with existing equipment.
    (8) The procurement is for experimental, developmental or research 
services.



Sec. 35.936-19  Small purchases.

    (a) A small purchase is the procurement of materials, supplies, and 
services when the aggregate amount involved in any one transaction does 
not exceed $10,000. The small purchase limitation of $10,000 applies to 
the aggregate total of an order, including all estimated handling and 
freight charges, overhead, and profit to be paid under the order. In 
arriving at the aggregate amount involved in any one transaction, all 
items which should properly be grouped together must be included. 
Reasonable competition shall be obtained.
    (b) Subagreements for small purchases need not be in the form of a 
bilaterally executed written agreement. Where appropriate, unilateral 
purchase orders, sales slips, memoranda of oral price quotations, and 
the like may be used to minimize paperwork. Retention in the purchase 
files of these documents and of written quotations received, or 
references to catalogs or printed price lists used, will suffice as the 
record supporting the price paid.



Sec. 35.936-20  Allowable costs.

    (a) Incurring costs under subagreements which are not awarded or 
administered in compliance with this part or part 33 of this subchapter, 
as appropriate, shall be cause for disallowance of those costs.
    (b) Appropriate cost principles which apply to subagreements under 
EPA grants are identified in Sec. 30.710 of this subchapter. Under that 
section, the contractor's actual costs, direct and indirect, eligible 
for Federal participation in a cost reimbursement contract shall be 
those allowable under the applicable provisions of 41 CFR 1-15.2 
(Principles and Procedures for Use in Cost-Reimbursement Type Supply and 
Research Contracts With Commercial Organizations) and 41 CFR 1-15.4 
(Construction and Architect-Engineer Contracts).
    (c) Reasonable costs of compliance with the procurement and project 
management requirements of these regulations are allowable costs of 
administration under the grant. Costs of announcement, selection, 
negotiation, and cost review and analysis in connection with procurement 
of architectural or engineering services are allowable, even when 
conducted before award of the grant. Legal and engineering costs which a 
grantee is required to incur in a protest action under Sec. 35.939 are 
allowable.



Sec. 35.936-21  Delegation to State agencies; certification of procurement systems.

    (a) Under Sec. 35.912 and subpart F of this part, the Regional 
Administrator may delegate authority to a State agency to review and 
certify the technical and administrative adequacy of procurement 
documentation required under these sections.
    (b) If a State agency believes that State laws which govern 
municipal procurement include the same requirements or operate to 
provide the same protections as do Sec. Sec. 35.936, 35.937 and

[[Page 475]]

35.938, the State may request the Administrator to approve the State 
system instead of the procedures of these sections. EPA shall review the 
State system to determine its adequacy.
    (c) If a State agency determines that an applicant's procurement 
ordinances or applicable statutes include the same requirements or 
operate to provide the same protections as do Sec. Sec. 35.936, 35.937 
and 35.938, the State may certify (accompanied by appropriate 
documentation) the adequacy of the municipality's ordinances and 
statutes and request the Administrator to approve the municipality's 
system instead of the procedures of these sections. EPA shall conduct or 
may request the State to conduct a review of the municipality's system 
to determine its adequacy.



Sec. 35.936-22  Bonding and insurance.

    (a) On contracts for the building and erection of treatment works or 
contracts for sewer system rehabilitation exceeding $100,000, each 
bidder must furnish a bid guarantee equivalent to 5 percent of the bid 
price. In addition, the contractor awarded a construction contract for 
the building and erection of treatment works or sewer system 
rehabilitation must furnish performance and payment bonds, each of which 
shall be in an amount not less than 100 percent of the contract price. 
Construction contracts less than $100,000 shall be subject to State and 
local requirements for bid guarantees, performance bonds, and payment 
bonds. For contracts or subcontracts in excess of $100,000 the Regional 
Administrator may authorize the grantee to use its own bonding policies 
and requirements if he determines, in writing, that the Government's 
interest is adequately protected.
    (b) Contractors should obtain such construction insurance (e.g., 
fire and extended coverage, workmen's compensation, public liability and 
property damage, and ``all risk'' builder's risk or installation floater 
coverage) as is required by State or local law or the grantee or as is 
customary and appropriate. Under the Flood Disaster Protection Act of 
1973, a contractor must purchase flood insurance to cover his risk of 
loss if the grantee has not purchased the insurance (see Sec. 30.405-10 
of this subchapter).



Sec. 35.937  Subagreements for architectural or engineering services.

    (a) Applicability. Except as Sec. 35.937-2 otherwise provides, the 
provisions of Sec. Sec. 35.937 through 35.937-11 apply to all 
subagreements of grantees for architectural or engineering services 
where the aggregate amount of services involved is expected to exceed 
$10,000. The provisions of Sec. Sec. 35.937-2, 35.937-3, and 35.937-4 
are not required, but may be followed, where the population of the 
grantee municipality is 25,000 or less according to the most recent U.S. 
census. When $10,000 or less of services (e.g., for consultant or 
consultant subcontract services) is required, the small purchase 
provisions of Sec. 35.936-19 apply.
    (b) Policy. Step 1, step 2, or administration or management of step 
3 project work may be performed by negotiated procurement of 
architectural or engineering services. The Federal Government's policy 
is to encourage public announcement of the requirements for personal and 
professional services, including engineering services. Subagreements for 
engineering services shall be negotiated with candidates selected on the 
basis of demonstrated competence and qualifications for the type of 
professional services required and at fair and reasonable prices. All 
negotiated procurement shall be conducted in a manner that provides to 
the maximum practicable extent, open and free competition. Nothing in 
this subpart shall be construed as requiring competitive bids or price 
competition in the procurement of architectural or engineering services.
    (c) Definitions. As used in Sec. Sec. 35.937 through 35.937-11 the 
following words and terms mean:
    (1) Architectural or engineering services. Those professional 
services associated with research, development, design and construction, 
alteration, or repair of real property, as well as incidental services 
that members of these professions and those in their employ may 
logically or justifiably perform,

[[Page 476]]

including studies, investigations, surveys, evaluations, consultations, 
planning, programing, conceptual designs, plans and specifications, cost 
estimates, inspections, shop drawing reviews, sample recommendations, 
preparation of operation and maintenance manuals, and other related 
services.
    (2) Engineer. A professional firm or individual engaged to provide 
services as defined in paragraph (c)(1) of this section by subagreement 
under a grant.



Sec. 35.937-1  Type of contract (subagreement).

    (a) General. Cost-plus-percentage-of-cost and percentage-of-
construction-cost contracts are prohibited. Cost reimbursement, fixed 
price, or per diem contracts or combinations of these may be negotiated 
for architectural or engineering services. A fixed price contract is 
generally used only when the scope and extent of work to be performed is 
clearly defined. In most other cases, a cost reimbursement type of 
contract is more appropriate. A per diem contract may be used if no 
other type of contract is appropriate. An incentive fee may be used if 
the grantee submits an adequate independent cost estimate and price 
comparison under Sec. 35.937-6.
    (b) Cost reimbursement contracts. Each cost reimbursement contract 
must clearly establish a cost ceiling which the engineer may not exceed 
without formally amending the contract and a fixed dollar profit which 
may not be increased except in case of a contract amendment to increase 
the scope of work.
    (c) Fixed price contracts. An acceptable fixed price contract is one 
which establishes a guaranteed maximum price which may not be increased 
unless a contract amendment increases the scope of work.
    (d) Compensation procedures. If, under either a cost reimbursement 
or fixed price contract, the grantee desires to use a multiplier type of 
compensation, all of the following must apply:
    (1) The multiplier and the portions of the multiplier allocable to 
overhead and allocable to profit have been specifically negotiated;
    (2) The portion of the multiplier allocable to overhead includes 
only allowable items of cost under the cost principles of 41 CFR 1-15.2 
and 1-15.4;
    (3) The portions of the multiplier allocable to profit and allocable 
to overhead have been separately identified in the contract; and
    (4) The fixed price contract includes a guaranteed maximum price for 
completion of the specifically defined scope of work; the cost 
reimbursement contract includes a fixed dollar profit which may not be 
increased except in case of a contract amendment which increases the 
scope of work.
    (e) Per diem contracts. A per diem agreement expected to exceed 
$10,000 may be utilized only after a determination that a fixed price or 
cost reimbursement type contract is not appropriate. Per diem agreements 
should be used only to a limited extent, e.g., where the first task 
under a step 1 grant involves establishing the scope and cost of 
succeeding step 1 tasks, or for incidental services such as expert 
testimony or intermittent professional or testing services. (Resident 
engineer and resident inspection services should generally be 
compensated under paragraph (b) or (c) of this section.) Cost and profit 
included in the per diem rate must be specifically negotiated and 
displayed separately in the engineer's proposal. The contract must 
clearly establish a price ceiling which may not be exceeded without 
formally amending the contract.



Sec. 35.937-2  Public notice.

    (a) Requirement. Adequate public notice as paragraph (a)(1) or (2) 
of this section provide, must be given of the requirement for 
architectural or engineering services for all subagreements with an 
anticipated price in excess of $25,000 except as paragraph (b) of this 
section provides. In providing public notice under paragraphs (a)(1) and 
(2) of this section, grantees must comply with the policies in 
Sec. Sec. 35.936-2(c), 35.936-3, and 35.936-7.
    (1) Public announcement. A notice of request for qualifications 
should be published in professional journals, newspapers, or 
publications of general circulation over a reasonable area and, in 
addition, if desired, through posted public notices or written 
notification directed to interested person, firms, or

[[Page 477]]

professional organizations inviting the submission of statements of 
qualifications. The announcement must clearly state the deadline and 
place for submission of qualification statements.
    (2) Prequalified list. As an alternative to publishing public notice 
as in paragraph (b) of this section, the grantee may secure or maintain 
a list of qualified candidates. The list must:
    (i) Be developed with public notice procedures as in paragraph 
(a)(1) of this section;
    (ii) Provide for continuous updating; and
    (iii) Be maintained by the grantee or secured from the State or from 
a nearby political subdivision.
    (b) Exceptions. The public notice requirement of this section and 
the related requirements of Sec. Sec. 35.937-3 and 35.937-4 are not 
applicable, but may be followed, in the cases described in paragraphs 
(b)(1) through (3) of this section. All other appropriate provisions of 
this section, including cost review and negotiation of price, apply.
    (1) Where the population of the grantee municipality is 25,000 or 
less according to the latest U.S. census.
    (2) For step 2 or step 3 of a grant, if:
    (i) The grantee is satisfied with the qualifications and performance 
of an engineer who performed all or any part of the step 1 or step 2 
work;
    (ii) The engineer has the capacity to perform the subsequent steps; 
and
    (iii) The grantee desires the same engineer to provide architectural 
or engineering services for the subsequent steps.
    (3) For subsequent segments of design work under one grant if:
    (i) A single treatment works is segmented into two or more step 3 
projects;
    (ii) The step 2 work is accordingly segmented so that the initial 
contract for preparation of construction drawings and specifications 
does not cover the entire treatment works to be built under one grant; 
and
    (iii) The grantee desires to use the same engineering firm that was 
selected for the initial segment of step 2 work for subsequent segments.



Sec. 35.937-3  Evaluation of qualifications.

    (a) The grantee shall review the qualifications of firms which 
responded to the announcement or were on the prequalified list and shall 
uniformly evaluate the firms.
    (b) Qualifications shall be evaluated through an objective process 
(e.g., the appointment of a board or committee which, to the extent 
practicable, should include persons with technical skills).
    (c) Criteria which should be considered in the evaluation of 
candidates for submission of proposals should include:
    (1) Specialized experience and technical competence of the candidate 
or firm and its personnel (including a joint venture, association or 
professional subcontract), considering the type of services required and 
the complexity of the project;
    (2) Past record of performance on contracts with the grantee, other 
government agencies or public bodies, and with private industry, 
including such factors as control of costs, quality of work, and ability 
to meet schedules;
    (3) The candidate's capacity to perform the work (including any 
specialized services) within the time limitations, considering the 
firm's current and planned workload;
    (4) The candidate's familiarity with types of problems applicable to 
the project; and
    (5) Avoidance of personal and organizational conflicts of interest 
prohibited under State and local law and Sec. 35.936-16.



Sec. 35.937-4  Solicitation and evaluation of proposals.

    (a) Requests for professional services proposals must be sent to no 
fewer than three candidates who either responded to the announcement or 
who were selected from the prequalified list. If, after good faith 
effort to solicit qualifications in accordance with Sec. 35.937-2, fewer 
than three qualified candidates respond, all qualified candidates must 
be provided requests for proposals.
    (b) Requests for professional services proposals must be in writing 
and must contain the information necessary to enable a prospective 
offeror to prepare a proposal properly. The request for

[[Page 478]]

proposals must include the solicitation statement in Sec. 35.937-9(a) 
and must inform offerors of the evaluation criteria, including all those 
in paragraph (c) of this section, and of the relative importance 
attached to each criterion (a numerical weighted formula need not be 
utilized).
    (c) All proposals submitted in response to the request for 
professional services proposals must be uniformly evaluated. Evaluation 
criteria shall include, as a minimum, all criteria stated in 
Sec. 35.937-3(c) of this subpart. The grantee shall also evaluate the 
candidate's proposed method to accomplish the work required, including, 
where appropriate, demonstrated capability to explore and develop 
innovative or advanced techniques and designs. The grantee's evaluation 
shall comply with Sec. 35.936-7.
    (d) Proposals shall be evaluated through an objective process (e.g., 
the appointment of a board or committee which, to the extent 
practicable, should include persons with technical skills. Oral 
(including telephone) or written interviews should be conducted with top 
rated proposers, and information derived therefrom shall be treated on a 
confidential basis, except as required to be disclosed under State or 
local law or to EPA under Sec. 35.937-6.
    (e) At no point during the procurement process shall information be 
conveyed to any candidate which would provide an unfair competitive 
advantage.



Sec. 35.937-5  Negotiation.

    (a) Grantees are responsible for negotiation of their contracts for 
architectural or engineering services. Contract procurement including 
negotiation may be performed by the grantee directly or by another non-
Federal governmental body, person or firm retained for the purpose. 
Contract negotiations may include the services of technical, legal, 
audit, or other specialists to the extent appropriate.
    (b) Negotiations may be conducted in accordance with State or local 
requirements, as long as they meet the minimum requirements as set forth 
in this section. In the absence of State or local statutory or code 
requirements, negotiations may be conducted by the grantee under 
procedures it adopts based upon Public Law 92-582, 40 U.S.C. 541-544 
(commonly known as the ``Brooks Bill'') or upon the negotiation 
procedures of 40 CFR 33.510-2.
    (c) The object of negotiations with any candidate shall be to reach 
agreement on the provisions of the proposed contract. The grantee and 
the candidate shall discuss, as a minimum:
    (1) The scope and extent of work and other essential requirements;
    (2) Identification of the personnel and facilities necessary to 
accomplish the work within the required time, including where needed, 
employment of additional personnel, subcontracting, joint ventures, 
etc.;
    (3) Provision of the required technical services in accordance with 
regulations and criteria established for the project; and
    (4) A fair and reasonable price for the required work, to be 
determined in accordance with the cost and profit considerations set 
forth in Sec. Sec. 35.937-6 and 35.937-7, and payment provisions.



Sec. 35.937-6  Cost and price considerations.

    (a) General. EPA policy is that the cost or price of all 
subagreements and amendments to them must be considered. For each 
subagreement in excess of $10,000 but not greater than $100,000, 
grantees shall use the procedures described in paragraph (c) of this 
section, or an equivalent process.
    (b) Subagreements over $100,000. For each subagreement expected to 
exceed $100,000, or for two subagreements which aggregate more than 
$100,000 awarded to an engineer for work on one step, or where 
renegotiation or amendment of a subagreement will result in a contract 
price in excess of $100,000, or where the amendment itself is in excess 
of $100,000, the provisions of this paragraph (b) shall apply.
    (1) The candidate(s) selected for negotiation shall submit to the 
grantee for review sufficient cost and pricing data as described in 
paragraph (c) of this section to enable the grantee to ascertain the 
necessity and reasonableness of costs and amounts proposed, and the 
allowability and eligibility of costs proposed.

[[Page 479]]

    (2) The grantee shall submit to the EPA Project Officer for review 
(i) documentation of the public notice of need for architectural or 
engineering services, and selection procedures used, in those cases 
where Sec. Sec. 35.937-2, 35.937-3 and 35.937-4 are applicable; (ii) the 
cost and pricing data the selected engineer submitted; (iii) a 
certification of review and acceptance of the selected engineer's cost 
or price; and (iv) a copy of the proposed subagreement. The EPA Project 
Officer will review the complete subagreement action and approve the 
grantee's compliance with appropriate procedures before the grantee 
awards the subagreement. The grantee shall be notified upon completion 
of review.
    (c) Cost review. (1) The grantee shall review proposed subagreement 
costs.
    (2) As a minimum, proposed subagreement costs shall be presented on 
EPA form 5700-41 on which the selected engineer shall certify that the 
proposed costs reflect complete, current, and accurate cost and pricing 
data applicable to the date of anticipated subagreement award.
    (3) In addition to the specific elements of cost, the estimated 
amount of profit shall be set forth separately in the cost summary for 
fixed price contracts and a maximum total dollar amount of profit shall 
be set forth separately in the cost summary for cost reimbursement 
contracts.
    (4) The grantee may require more detailed cost data than the form 
requires in order to substantiate the reasonableness of proposed 
subagreement costs. EPA normally requires more detailed documentation 
only when the selected engineer is unable to certify that the cost and 
pricing data used are complete, current, and accurate. EPA may, on a 
selected basis, perform a pre-award cost analysis on any subagreement. 
Normally, a provisional overhead rate will be agreed upon before 
contract award.
    (5) Appropriate consideration should be given to Sec. 30.710 of this 
subchapter which contains general cost principles which must be used to 
determine the allowability of costs under grants. The engineer's actual 
costs, direct and indirect, allowable for Federal participation shall be 
determined in accordance with the terms and conditions of the 
subagreement, this subpart and the cost principles included in 41 CFR 1-
15.2 and 1-15.4. Examples of cost which are not allowable under those 
cost principles include entertainment, interest on borrowed capital and 
bad debts.
    (6) The engineer shall have an accounting system which accounts for 
costs in accordance with generally accepted accounting principles. This 
system shall provide for the identification, accumulation, and 
segregation of allowable and unallowable project costs among projects. 
Allowable project costs shall be determined in accordance with paragraph 
(c)(5) of this section. The engineer must propose and account for costs 
in a manner consistent with his normal accounting procedures.
    (7) Subagreements awarded on the basis of review of a cost element 
summary and a certification of complete, current, and accurate cost and 
pricing data shall be subject to downward renegotiation or recoupment of 
funds where the Regional Administrator determines that such 
certification was not based on complete, current, and accurate cost and 
pricing data or not based on costs allowable under the appropriate FPR 
cost principles (41 CFR 1-15.2 and 1-15.4) at the time of award.



Sec. 35.937-7  Profit.

    The objective of negotiations shall be the exercise of sound 
business judgment and good administrative practice including the 
determination of a fair and reasonable profit based on the firm's 
assumption of risk and input to total performance and not merely the 
application of a predetermined percentage factor. For the purpose of 
subagreements under EPA grants, profit is defined as the net proceeds 
obtained by deducting all allowable costs (direct and indirect) from the 
price. (Because this definition of profit is based on Federal 
procurement principles, it may vary from the firm's definition of profit 
for other purposes.) Profit on a subagreement and each amendment to a 
subagreement under a grant should be sufficient to attract engineers who 
possess talents and skills necessary to the accomplishment of project 
objectives,

[[Page 480]]

and to stimulate efficient and expeditious completion of the project. 
Where cost review is performed, the grantee should review the estimate 
of profit as he reviews all other elements of price.



Sec. 35.937-8  Award of subagreement.

    After the close of negotiations and after review and approval by the 
EPA Project Officer if required under Sec. 35.937-6(b), the grantee may 
award the contract. Unsuccessful candidates should be notified promptly.



Sec. 35.937-9  Required solicitation and subagreement provisions.

    (a) Required solicitation statement. Requests for qualifications or 
proposals must include the following statement, as well as the proposed 
terms of the subagreement.

    Any contract awarded under this request for (qualifications/
professional proposals) is expected to be funded in part by a grant from 
the United States Environmenal Protection Agency. This procurement will 
be subject to regulations contained in 40 CFR 35.936, 35.937, and 
35.939. Neither the United States nor the United States Environmental 
Protection Agency is nor will be a party to this request for 
(qualifications/professional proposals) or any resulting contract.

    (b) Content of subagreement. Each subagreement must adequately 
define:
    (1) The scope and extent of project work;
    (2) The time for performance and completion of the contract work, 
including where appropriate, dates for completion of significant project 
tasks;
    (3) Personnel and facilities necessary to accomplish the work within 
the required time;
    (4) The extent of subcontracting and consultant agreements; and
    (5) Payment provisions in accordance with Sec. 35.937-10.

 If any of these elements cannot be defined adequately for later tasks 
or steps at the time of contract execution, the contract should not 
include the subsequent tasks or steps at that time.
    (c) Required subagreement provisions. Each consulting engineering 
contract must include the provisions set forth in appendix C-1 to this 
subpart.



Sec. 35.937-10  Subagreement payments--architectural or engineering services.

    The grantee shall make payment to the engineer in accordance with 
the payment schedule incorporated in the engineering agreement or in 
accordance with paragraph 7b of appendix C-1 to this subpart. Any 
retainage is at the option of the grantee. No payment request made by 
the Engineer under the agreement may exceed the estimated amount and 
value of the work and services performed.



Sec. 35.937-11  Applicability to existing contracts.

    Some negotiated engineering subagreements already in existence may 
not comply with the requirements of Sec. Sec. 35.936 and 35.937. 
Appendix D to this subpart contains EPA policy with respect to these 
subagreements and must be implemented before the grant award action for 
the next step under the grant.



Sec. 35.937-12  Subcontracts under subagreements for architectural or engineering services.

    (a) Neither award and execution of subcontracts under a prime 
contract for architectural or engineering services, nor the procurement 
and negotiation procedures used by the engineer in awarding such 
subcontracts are required to comply with any of the provisions, 
selection procedures, policies or principles set forth in Sec. 35.936 or 
Sec. 35.937 except as provided in paragraphs (b), (c), and (d) of this 
section.
    (b) The award or execution of subcontracts in excess of $10,000 
under a prime contract for architectural or engineering services and the 
procurement procedures used by the engineer in awarding such 
subcontracts must comply with the following:
    (1) Section 35.936-2 (Grantee procurement systems; State or local 
law);
    (2) Section 35.936-7 (Small and minority business);
    (3) Section 35.936-15 (Limitations on subagreement award);
    (4) Section 35.936-17 (Fraud and other unlawful or corrupt 
practices);
    (5) Section 35.937-6 (Cost and price considerations);
    (6) Section 35.937-7 (Profit);

[[Page 481]]

    (7) Prohibition of percentage-of-construction-cost and cost-plus-
percentage-of-cost contracts (see Sec. 35.937-1); and
    (8) Applicable subagreement clauses (see appendix C-1, clauses 9, 
17, 18; note clause 10).
    (c) The applicable provisions of this subpart shall apply to lower 
tier subagreements where an engineer acts as an agent for the grantee 
under a management subagreement (see Sec. 35.936-5(b)).
    (d) If an engineer procures items or services (other than 
architectural or engineering services) which are more appropriately 
procured by formal advertising or competitive negotiation procedures, 
the applicable procedures of Sec. 35.938 or of part 33 shall be 
observed.



Sec. 35.938  Construction contracts (subagreements) of grantees.



Sec. 35.938-1  Applicability.

    This section applies to construction contracts (subagreements) in 
excess of $10,000 awarded by grantees for any step 3 project.



Sec. 35.938-2  Performance by contract.

    The project work shall be performed under one or more contracts 
awarded by the grantee to private firms, except for force account work 
authorized by Sec. 35.936-14.



Sec. 35.938-3  Type of contract.

    Each contract shall be a fixed price (lump sum or unit price or a 
combination of the two) contract, unless the Regional Administrator 
gives advance written approval for the grantee to use some other 
acceptable type of contract. The cost-plus-percentage-of-cost contract 
shall not be used in any event.



Sec. 35.938-4  Formal advertising.

    Each contract shall be awarded after formal advertising, unless 
negotiation is permitted in accordance with Sec. 35.936-18. Formal 
advertising shall be in accordance with the following:
    (a) Adequate public notice. The grantee will cause adequate notice 
to be given of the solicitation by publication in newspapers or journals 
of general circulation beyond the grantee's locality (statewide, 
generally), inviting bids on the project work, and stating the method by 
which bidding documents may be obtained or examined. Where the estimated 
cost of step 3 construction is $10 million or more, the grantee must 
generally publish the notice in trade journals of nationwide 
distribution. The grantee should, in addition, solicit bids directly 
from bidders if it maintains a bidders list.
    (b) Adequate time for preparing bids. Adequate time, generally not 
less than 30 days, must be allowed between the date when public notice 
under paragraph (a) of this section is first published and the date by 
which bids must be submitted. Bidding documents (including 
specifications and drawings) shall be available to prospective bidders 
from the date when such notice is first published.
    (c) Adequate bidding documents. The grantee shall prepare a 
reasonable number of bidding documents (invitations for bids) and shall 
furnish them upon request on a first-come, first-served basis. The 
grantee shall maintain a complete set of bidding documents and shall 
make them available for inspection and copying by any party. The bidding 
documents shall include:
    (1) A complete statement of the work to be performed, including 
necessary drawings and specifications, and the required completion 
schedule. (Drawings and specifications may be made available for 
inspection and purchase, instead of being furnished.);
    (2) The terms and conditions of the contract to be awarded;
    (3) A clear explanation of the method of bidding and the method of 
evaluation of bid prices, and the basis and method for award of the 
contract;
    (4) Responsibility requirements or criteria which will be employed 
in evaluating bidders;
    (5) The following statement:

    Any contract or contracts awarded under this invitation for bids are 
expected to be funded in part by a grant from the U.S. Environmental 
Protection Agency. Neither the United States nor any of its departments, 
agencies or employees is or will be a party to this invitation for bids 
or any resulting contract. This procurement will be subject to 
regulations contained in 40 CFR 35.936, 35.938, and 35.939.;


[[Page 482]]


and
    (6) A copy of Sec. Sec. 35.936, 35.938, and 35.939.
    (d) Sealed bids. The grantee shall provide for bidding by sealed bid 
and for the safeguarding of bids received until public opening.
    (e) Addenda to bidding documents. If a grantee desires to amend any 
part of the bidding documents (including drawings and specifications) 
during the period when bids are being prepared, the addenda shall be 
communicated in writing to all firms which have obtained bidding 
documents in time to be considered before the bid opening time.
    (f) Bid modifications. A firm which has submitted a bid shall be 
allowed to modify or withdraw its bid before the time of bid opening.
    (g) Public opening of bids. The grantee shall provide for a public 
opening of bids at the place, date and time announced in the bidding 
documents.
    (h) Award to the low, responsive, responsible bidder. (1) After bids 
are opened, the grantee shall evaluate them in accordance with the 
methods and criteria set forth in the bidding documents.
    (2) The grantee may reserve the right to reject all bids. Unless all 
bids are rejected for good cause, award shall be made to the low, 
responsive, responsible bidder.
    (3) If the grantee intends to make the award to a firm which did not 
submit the lowest bid, he shall prepare a written statement before any 
award, explaining why each lower bidder was deemed nonresponsible or 
nonresponsive, and shall retain it in his files.
    (4) State or local laws, ordinances, regulations or procedures which 
are designed or which operate to give local or in-State bidders 
preference over other bidders shall not be employed in evaluating bids.
    (5) If an unresolved procurement review issue or a protest relates 
only to award of a subcontract or procurement of a subitem under the 
prime contract, and resolution of that issue or protest is unduly 
delaying performance of the prime contract, the Regional Administrator 
may authorize award and performance of the prime contract before 
resolution of the issue or protest, if the Regional Administrator 
determines that:
    (i) Resolution of the protest--
    (A) Will not affect the placement of the prime contract bidders; and
    (B) Will not materially affect initial performance of the prime 
contract; and that
    (ii) Award of the prime contract--
    (A) Is in the Government's best interest;
    (B) Will not materially affect resolution of the protest; and
    (C) Is not barred by State law.
    (6) The grantee shall not reject a bid as nonresponsive for failure 
to list or otherwise indicate the selection of a subcontractor(s) or 
equipment, unless the grantee has unambiguously stated in the 
solicitation documents that such failure to list shall render a bid 
nonresponsive and shall cause rejection of a bid.



Sec. 35.938-5  Negotiation of contract amendments (change orders).

    (a) Grantee responsibility. Grantees are responsible for negotiation 
of construction contract change orders. This function may be performed 
by the grantee directly or, if authorized, by his engineer. During 
negotiations with the contractor the grantee shall:
    (1) Make certain that the contractor has a clear understanding of 
the scope and extent of work and other essential requirements;
    (2) Assure that the contractor demonstrates that he will make 
available or will obtain the necessary personnel, equipment and 
materials to accomplish the work within the required time; and
    (3) Assure a fair and reasonable price for the required work.
    (b) Changes in contract price or time. The contract price or time 
may be changed only by a change order. When negotiations are required, 
they shall be conducted in accordance with paragraph (c) or (d) of this 
section, as appropriate. The value of any work covered by a change order 
or of any claim for increase or decrease in the contract price shall be 
determined by the method set forth in paragraphs (b)(1) through (3) of 
this section which is most advantageous to the grantee.

[[Page 483]]

    (1) Unit prices--(i) Original bid items. Unit prices previously 
approved are acceptable for pricing changes of original bid items. 
However, when changes in quantities exceed 15 percent of the original 
bid quantity and the total dollar change of that bid item is 
significant, the grantee shall review the unit price to determine if a 
new unit price should be negotiated.
    (ii)  New items.  Unit prices of new items shall be negotiated.
    (2) A lump sum to be negotiated.
    (3) Cost reimbursement--the actual cost for labor, direct overhead, 
materials, supplies, equipment, and other services necessary to complete 
the work plus an amount to be agreed upon to cover the cost of general 
overhead and profit to be negotiated.
    (c) For each change order not in excess of $100,000 the contractor 
shall submit sufficient cost and pricing data to the grantee to enable 
the grantee to determine the necessity and reasonableness of costs and 
amounts proposed, and the allowability and eligibility of costs 
proposed.
    (d) For each change order in excess of $100,000, the contractor 
shall submit to the grantee for review sufficient cost and pricing data 
as described in paragraphs (d) (1) through (6) of this section to enable 
the grantee to ascertain the necessity and reasonableness of costs and 
amounts proposed, and the allowability and eligibility of costs 
proposed.
    (1) As a minimum, proposed change order costs shall be presented on 
EPA Form 5700-41 on which the contractor shall certify that proposed 
costs reflect complete, current, and accurate cost and pricing data 
applicable to the date of the change order.
    (2) In addition to the specific elements of cost, the estimated 
amount of profit shall be set forth separately in the cost summary for 
fixed price change orders and a specific total dollar amount of profit 
will be set forth separately in the cost summary for cost reimbursement 
change orders.
    (3) The grantee may require more detailed cost data than the form 
requires in order to substantiate the reasonableness of proposed change 
order costs. EPA normally requires more detailed documentation only when 
the contractor is unable to certify that proposed change order cost data 
are complete, current, and accurate. EPA may, on a selected basis, 
perform a detailed cost analysis on any change order.
    (4) Appropriate consideration should be given to Sec. 30.710 of this 
subchapter which contains general cost principles which must be used for 
the determination and allowability of costs under grants. The 
contractor's actual costs, direct and indirect, allowable for Federal 
participation shall be determined in accordance with the terms and 
conditions of the contract, this subpart and the cost principles 
included in 41 CFR 1-15.2 and 1-15.4. Examples of costs which are not 
allowable under those cost principles include, but are not limited to, 
entertainment, interest on borrowed capital and bad debts.
    (5) For costs under cost reimbursement change orders, the contractor 
shall have an accounting system which accounts for such costs in 
accordance with generally accepted accounting principles. This system 
shall provide for the identification, accumulation and segregation of 
allowable and unallowable change orders. Allowable change order costs 
shall be determined in accordance with paragraph (d)(4) of this section. 
The contractor must propose and account for such costs in a manner 
consistent with his normal accounting procedures.
    (6) Change orders awarded on the basis of review of a cost element 
summary and a certification of complete, current, and accurate cost and 
pricing data shall be subject to downward renegotiation or recoupment of 
funds where subsequent audit substantiates that such certification was 
not based on complete, current and accurate cost and pricing data and on 
costs allowable under the appropriate FPR cost principles (41 CFR 1-15.2 
and 1-15.4) at the time of change order execution.
    (e) EPA review. In addition to the requirements of Sec. Sec. 35.935-
10 (copies of contract documents) and 35.935-11 (project changes), the 
grantee shall submit, before the execution of any change order in excess 
of $100,000, to the EPA Project Officer for review:
    (1) The cost and pricing data the contractor submitted;

[[Page 484]]

    (2) A certification of review and acceptance of the contractor's 
cost or price; and
    (3) A copy of the proposed change order.
    (f) Profit. The objective of negotiations shall be the exercise of 
sound business judgment and good administrative practice including the 
determination of a fair and reasonable profit based on the contractor's 
assumption of risk and input to total performance and not merely the 
application of a predetermined percentage factor. For the purpose of 
negotiated change orders to construction contracts under EPA grants, 
profit is defined as the net proceeds obtained by deducting all 
allowable costs (direct and indirect) from the price. The grantee should 
review the estimate or profit as he reviews all other elements of price.
    (g) Related work. Related work shall not be split into two 
amendments or change orders merely to keep it under $100,000 and thereby 
avoid the requirements of paragraph (d) of this section. For change 
orders which include both additive and deductive items:
    (1) If any single item (additive or deductive) exceeds $100,000, the 
requirements of paragraph (d) of this section shall be applicable.
    (2) If no single additive or deductive item has a value of $100,000, 
but the total price of the change order is over $100,000, the 
requirements of paragraph (d) of this section shall be applicable.
    (3) If the total of additive items of work in the change order 
exceeds $100,000, or the total of deductive items of work in the change 
order exceeds $100,000, and the net price of the change order is less 
than $100,000, the requirements of paragraph (d) of this section shall 
apply.



Sec. 35.938-6  Progress payments to contractors.

    (a) Policy. EPA policy is that, except as State law otherwise 
provides, grantees should make prompt progress payments to prime 
contractors and prime contractors should make prompt progress payment to 
subcontractors and suppliers for eligible construction, material, and 
equipment costs, including those of undelivered specifically 
manufactured equipment, incurred under a contract under an EPA 
construction grant.
    (b) Conditions of progress payments. For purposes of this section, 
progress payments are defined as follows:
    (1) Payments for work in place.
    (2) Payments for materials or equipment which have been delivered to 
the construction site, or which are stockpiled in the vicinity of the 
construction site, in accordance with the terms of the contract, when 
conditional or final acceptance is made by or for the grantee. The 
grantee shall assure that items for which progress payments have been 
made are adequately insured and are protected through appropriate 
security measures. Costs of such insurance and security are allowable 
costs in accordance with Sec. 35.940.
    (3) Payments for undelivered specifically manufactured items or 
equipment (excluding off-the-shelf or catalog items), as work on them 
progresses. Such payments must be made if provisions therefor are 
included in the bid and contract documents. Such provisions may be 
included at the option of the grantee only when all of the following 
conditions exist:
    (i) The equipment is so designated in the project specifications;
    (ii) The equipment to be specifically manufactured for the project 
could not be readily utilized on nor diverted to another job; and
    (iii) A fabrication period of more than 6 months is anticipated.
    (c) Protection of progress payments made for specifically 
manufactured equipment. The grantee will assure protection of the 
Federal interest in progress payments made for items or equipment 
referred to in paragraph (b)(3) of this section. This protection must be 
acceptable to the grantee and must take the form of:
    (1) Securities negotiable without recourse, condition or 
restrictions, a progress payment bond, or an irrevocable letter of 
credit provided to the grantee through the prime contractor by the 
subcontractor or supplier; and,
    (2) For items or equipment in excess of $200,000 in value which are 
manufactured in a jurisdiction in which the Uniform Commercial Code is 
applicable, the creation and perfection of a security interest under the 
Uniform

[[Page 485]]

Commercial Code reasonably adequate to protect the interests of the 
grantee.
    (d) Limitations on progress payments for specifically manufactured 
equipment. (1) Progress payments made for specifically manufactured 
equipment or items shall be limited to the following:
    (i) A first payment upon submission by the prime contractor of shop 
drawings for the equipment or items in an amount not exceeding 15 
percent of the contract or item price plus appropriate and allowable 
higher tier costs; and
    (ii) Subsequent to the grantee's release or approval for 
manufacture, additional payments not more frequently than monthly 
thereafter up to 75 percent of the contract or item price plus 
appropriate and allowable higher tier costs. However, payment may also 
be made in accordance with the contract and grant terms and conditions 
for ancillary onsite work before delivery of the specifically 
manufactured equipment or items.
    (2) In no case may progress payments for undelivered equipment or 
items under paragraph (d)(1)(i) or (d)(1)(ii) of this section be made in 
an amount greater than 75 percent of the cumulative incurred costs 
allocable to contract performance with respect to the equipment or 
items. Submission of a request for any such progress payments must be 
accompanied by a certification furnished by the fabricator of the 
equipment or item that the amount of progress payment claimed 
constitutes not more than 75 percent of cumulative incurred costs 
allocable to contract performance, and in addition, in the case of the 
first progress payment request, a certification that the amount claimed 
does not exceed 15 percent of the contract or item price quoted by the 
fabricator.
    (3) As used in this section, the term ``costs allocable to contract 
performance'' with respect to undelivered equipment or items includes 
all expenses of contract performance which are reasonable, allocable to 
the contract, consistent with sound and generally accepted accounting 
principles and practices consistently applied, and which are not 
excluded by the contract.
    (e) Enforcement. A subcontractor or supplier which is determined by 
the Regional Administrator to have frustrated the intent of the 
provisions regarding progress payments for major equipment or 
specifically manufactured equipment through intentional forfeiture of 
its bond or failure to deliver the equipment may be determined 
nonresponsible and ineligible for further work under EPA grants.
    (f) Contract provisions. Where applicable, appropriate provisions 
regarding progress payments must be included in each contract and 
subcontract. Grantees must use clauses acceptable to the EPA Regional 
Administrator.
    (g) Implementation. The foregoing progress payments policy should be 
implemented in invitations for bids under step 3 grants. If provision 
for progress payments is made after contract award, it must be for 
consideration that the grantee deems adequate.



Sec. 35.938-7  Retention from progress payments.

    (a) The grantee may retain a portion of the amount otherwise due the 
contractor. Except as State law otherwise provides, the amount the 
grantee retains shall be limited to the following:
    (1) Withholding of not more than 10 percent of the payment claimed 
until work is 50 percent complete;
    (2) When work is 50 percent complete, reduction of the withholding 
to 5 percent of the dollar value of all work satisfactorily completed to 
date, provided that the contractor is making satisfactory progress and 
there is no specific cause for greater withholding;
    (3) When the work is substantially complete (operational or 
beneficial occupancy), the withheld amount shall be further reduced 
below 5 percent to only that amount necessary to assure completion.
    (4) The grantee may reinstate up to 10 percent withholding if the 
grantee determines, at its discretion, that the contractor is not making 
satisfactory progress or there is other specific cause for such 
withholding.
    (5) The grantee may accept securities negotiable without recourse, 
condition or restrictions, a release of retainage bond, or an 
irrevocable letter of credit provided by the contractor instead of all 
or part of the cash retainage.

[[Page 486]]

    (b) The foregoing retention policy shall be implemented with respect 
to all step 3 projects for which plans and specifications are approved 
after March 1, 1976. Appropriate provision to assure compliance with 
this policy must be included in the bid documents for such projects 
initially or by addendum before the bid submission date, and as a 
special condition in the grant agreement or in a grant amendment. For 
all previous active projects, the grantee may implement the foregoing 
policy through contract amendment upon written request to the grantee by 
the contractor upon consideration that the grantee deems adequate.
    (c) Under Sec. 30.620-3 of this subchapter, a grantee who delays 
disbursement of grant funds will be required to credit to the United 
States all interest earned on those funds.



Sec. 35.938-8  Required construction contract provisions.

    Each construction contract must include the ``Supplemental General 
Conditions'' set forth in Appendix C-2 to this subpart.



Sec. 35.938-9  Subcontracts under construction contracts.

    (a) The award or execution of subcontracts by a prime contractor 
under a construction contract awarded to the prime contractor by the 
grantee, and the procurement and negotiation procedures used by prime 
contractors in awarding or executing subcontracts are not required to 
comply with any of the provisions, selection procedures, policies or 
principles set forth in Sec. 35.936 or Sec. 35.938 except those 
specifically stated in this section. In addition, the bid protest 
procedures of Sec. 35.939 are not available to parties executing 
subcontracts with prime contractors except as specifically provided in 
that section.
    (b) The award or execution of subcontracts by a prime contractor 
under a formally advertised, competitively bid, fixed price construction 
contract awarded to the prime contractor by the grantee, and the 
procurement and negotiation procedures used by such prime contractors in 
awarding or executing such subcontracts must comply with the following:
    (1) Section 35.936-2 (Grantee procurement systems; State or local 
law);
    (2) Section 35.936-7 (Small and minority business);
    (3) Section 35.936-13 (Specifications);
    (4) Section 35.936-15 (Limitations on subagreement award);
    (5) Section 35.936-17 (Fraud and other unlawful or corrupt 
practices);
    (6) Section 35.938-5(d) (Negotiation of contract amendments); and
    (7) Applicable subagreement clauses (see Appendix C-2, clauses 8, 
10, 14, 15, 16; note clause 11).
    (c) The award of subcontracts under construction contracts not 
described above in paragraph (b) of this section and the procurement and 
negotiation procedures of prime contractors on contracts not meeting 
that description must comply with paragraphs (b)(1) through (4) of this 
section as well as the principles of Sec. 35.938-5.



Sec. 35.939  Protests.

    (a) General. A protest based upon an alleged violation of the 
procurement requirements of Sec. Sec. 35.936 through 35.938-9 of this 
subpart may be filed against a grantee's procurement action by a party 
with an adversely affected direct financial interest. Any such protest 
must be received by the grantee within the time period in paragraph 
(b)(1) of this section. The grantee is responsible for resolution of the 
protest before the taking of the protested action, in accordance with 
paragraph (d) of this section, except as otherwise provided by paragraph 
(j) or (k) or Sec. 35.938-4(h)(5). The Regional Administrator will 
review grantee protest determinations in accordance with paragraph (e) 
of this section, if a timely request for such review is filed under 
paragraph (b)(2) of this section. In the case of protests which he 
determines are untimely, frivolous, or without merit, the Regional 
Administrator may take such actions as are described in paragraphs 
(f)(7), (i)(2), and (k) of this section.
    (b) Time limitations. (1) A protest under paragraph (d) of this 
section should be made as early as possible during the procurement 
process (for example, immediately after issuance of a solicitation for 
bids) to avoid disruption of or unnecessary delay to the procurement 
process. A protest authorized

[[Page 487]]

by paragraph (d) of this section must be received by the grantee within 
1 week after the basis for the protest is known or should have been 
known, whichever is earlier (generally, for formally advertised 
procurement, after bid opening, within 1 week after the basis for the 
protest is, or should have been, known).
    (i) However, in the case of an alleged violation of the 
specification requirements of Sec. 35.936-13 (e.g., that a product fails 
to qualify as an ``or equal'') or other specification requirements of 
this subpart, a protest need not be filed prior to the opening of bids. 
But the grantee may resolve the issue before receipt of bids or 
proposals through a written or other formal determination, after notice 
and opportunity to comment is afforded to any party with a direct 
financial interest.
    (ii) In addition, where an alleged violation of the specification 
requirements of Sec. 35.936-13 or other requirements of this subpart 
first arises subsequent to the receipt of bids or proposals, the grantee 
must decide the protest if the protest was received by the grantee 
within 1 week of the time that the grantee's written or other formal 
notice is first received.
    (2) A protest appeal authorized by paragraph (e) of this section 
must be received by the Regional Administrator within 1 week after the 
complainant has received the grantee's determination.
    (3) If a protest is mailed, the complaining party bears the risk of 
nondelivery within the required time period. It is suggested that all 
documents transmitted in accordance with this section be mailed by 
certified mail (return receipt requested) or otherwise delivered in a 
manner which will objectively establish the date of receipt. Initiation 
of protest actions under paragraph (d) or (e) of this section may be 
made by brief telegraphic notice accompanied by prompt mailing or other 
delivery of a more detailed statement of the basis for the protest. 
Telephonic protests will not be considered.
    (c) Other initial requirements. (1) The initial protest document 
must briefly state the basis for the protest, and should--
    (i) Refer to the specific section(s) of this subpart which allegedly 
prohibit the procurement action;
    (ii) Specifically request a determination pursuant to this section;
    (iii) Identify the specific procurement document(s) or portion(s) of 
them in issue; and
    (iv) Include the name, telephone number, and address of the person 
representing the protesting party.
    (2) The party filing the protest must concurrently transmit a copy 
of the initial protest document and any attached documentation to all 
other parties with a direct financial interest which may be adversely 
affected by the determination of the protest (generally, all bidders or 
proposers who appear to have a substantial and reasonable prospect of 
receiving an award if the protest is denied or sustained) and to the 
appropriate EPA Regional Administrator.
    (d) Grantee determination. (1) The grantee is responsible for the 
initial resolution of protests based upon alleged violations of the 
procurement requirements of this subpart.
    (2) When the grantee receives a timely written protest, he must 
defer the protested procurement action (see paragraph (h) of this 
section) and:
    (i) Afford the complaining party and interested parties an 
opportunity to present arguments in support of their views in writing or 
at a conference or other suitable meeting (such as a city council 
meeting),
    (ii) Inform the complainant and other interested parties of the 
procedures which the grantee will observe for resolution of the protest;
    (iii) Obtain an appropriate extension of the period for acceptance 
of the bid and bid bond(s) of each interested party, where applicable; 
failure to agree to a suitable extension of such bid and bid bond(s) by 
the party which initiated the protest shall be cause for summary 
dismissal of the protest by the grantee or the Regional Administrator; 
and
    (iv) Promptly deliver (preferably by certified mail, return receipt 
requested, or by personal delivery) its written determination of the 
protest to the complaining party and to each other participating party.

[[Page 488]]

    (3) The grantee's determination must be accompanied by a legal 
opinion addressing issues arising under State, territorial, or local law 
(if any) and, where step 3 construction is involved, by an engineering 
report, if appropriate.
    (4) The grantee should decide the protest as promptly as possible--
generally within 3 weeks after receipt of a protest, unless extenuating 
circumstances require a longer period of time for proper resolution of 
the protest.
    (e) Regional Administrator review. (1) A party with a direct 
financial interest adversely affected by a grantee determination made 
under paragraph (d) with respect to a procurement requirement of this 
subpart may submit a written request to the Regional Administrator for 
his review of such determination. Any such request must be in writing, 
must adequately state the basis for the protest (including reference to 
the specific section(s) of this subpart alleged to prohibit the 
procurement action), and must be received by the Regional Administrator 
within 1 week after the complaining party has received the grantee's 
determination of the protest. A copy of the grantee's determination and 
other documentation in support of the request for review shall be 
transmitted with the request.
    (2) The Regional Counsel or his delegee will afford both the grantee 
and the complaining party, as well as any other party with a financial 
interest which may be adversely affected by determination of the 
protest, an opportunity to present arguments in support of their views 
in writing or at a conference at a time and place convenient to the 
parties as determined by the Regional Counsel or his delegee, and he 
shall thereafter promptly submit in writing his report and 
recommendations (or recommended determination) concerning the protest to 
the Regional Administrator.
    (3) Any such conference should be held within not more than 10 days 
after receipt of the request for review and the report should be 
transmitted to the Regional Administrator within 10 days after the date 
set for receipt of the participants' written materials or for the 
conference. The Regional Administrator should transmit his determination 
of the protest with an adequate explanation thereof to the grantee and 
simultaneously to each participating party within 1 week after receipt 
of the report and recommendations. His determination shall constitute 
final agency action, from which there shall be no further administrative 
appeal. The Regional Counsel may extend these time limitations, where 
appropriate.
    (4) The Regional Administrator may review the record considered by 
the grantee, and any other documents or arguments presented by the 
parties, to determine whether the grantee has complied with this subpart 
and has a rational basis for its determination.
    (5) If a determination is made by the Regional Administrator which 
is favorable to the complainant, the grantee's procurement action (for 
example, contract award) must be taken in accordance with such 
determination.
    (f) Procedures. (1) Where resolution of an issue properly raised 
with respect to a procurement requirement of this subpart requires prior 
or collateral resolution of a legal issue arising under State or local 
law, and such law is not clearly established in published legal 
decisions of the State or other relevant jurisdiction, the grantee or 
Regional Administrator may rely upon:
    (i) An opinion of the grantee's legal counsel adequately addressing 
the issue (see Sec. 35.936-2(b));
    (ii) The established or consistent practice of the grantee, to the 
extent appropriate; or
    (iii) The law of other States or local jurisdictions as established 
in published legal decisions; or
    (iv) If none of the foregoing adequately resolve the issue, 
published decisions of the Comptroller General of the United States 
(U.S. General Accounting Office) or of the Federal courts addressing 
Federal requirements comparable to procurement requirements of this 
subpart.
    (2) For the determination of Federal issues presented by the 
protest, the Regional Administrator may rely upon:
    (i) Determinations of other protests decided under this section, 
unless such protests have been reversed; and

[[Page 489]]

    (ii) Decisions of the Comptroller General of the United States or of 
the Federal courts addressing Federal requirements comparable to 
procurement requirements of this subpart.
    (3) The Regional Counsel may establish additional procedural 
requirements or deadlines for the submission of materials by parties or 
for the accomplishment of other procedures. Where time limitations are 
established by this section or by the Regional Counsel, participants 
must seek to accomplish the required action as promptly as possible in 
the interest of expediting the procurement action.
    (4) A party who submits a document subsequent to initiation of a 
protest proceeding under paragraph (d) or (e) of this section must 
simultaneously furnish each other party with a copy of such document.
    (5) The procedures established by this section are not intended to 
preclude informal resolution or voluntary withdrawal of protests. A 
complainant may withdraw its appeal at any time, and the protest 
proceeding shall thereupon be terminated.
    (6) The Regional Administrator may utilize appropriate provisions of 
this section in the discharge of his responsibility to review grantee 
procurement under 40 CFR 35.935-2.
    (7) A protest may be dismissed for failure to comply with procedural 
requirements of this section.
    (g) Burden of proof. (1) In proceedings under paragraphs (d) and (e) 
of this section, if the grantee proposes to award a formally advertised, 
competitively bid, fixed price contract to a party who has submitted the 
apparent lowest price, the party initiating the protest will bear the 
burden of proof in the protest proceedings.
    (2) In the proceedings under paragraph (e) of this section--
    (i) If the grantee proposes to award a formally advertised, 
competitively bid, fixed-price contract to a bidder other than the 
bidder which submitted the apparent lowest price, the grantee will bear 
the burden of proving that its determination concerning responsiveness 
is in accordance with this subchapter; and
    (ii) If the basis for the grantee's determination is a finding of 
nonresponsibility, the grantee must establish and substantiate the basis 
for its determination and must adequately establish that such 
determination has been made in good faith.
    (h) Deferral of procurement action. Upon receipt of a protest under 
paragraph (d) of this section, the grantee must defer the protested 
procurement action (for example, defer the issuance of solicitations, 
contract award, or issuance of notice to proceed under a contract) until 
10 days after delivery of its determination to the participating 
parties. (The grantee may receive or open bids at it own risk, if it 
considers this to be in its best interest; and see Sec. 35.938-4(h)(5).) 
Where the Regional Administrator has received a written protest under 
paragraph (e) of this section, he must notify the grantee promptly to 
defer its protested procurement action until notified of the formal or 
informal resolution of the protest.
    (i) Enforcement. (1) Noncompliance with the procurement provisions 
of this subchapter by the grantee shall be cause for enforcement action 
in accordance with one or more of the provisions of Sec. 35.965 of this 
subpart.
    (2) If the Regional Administrator determines that a protest 
prosecuted pursuant to this section is frivolous, he may determine the 
party which prosecuted such protest to be nonresponsible and ineligible 
for future contract award (see also paragraph (k) of this section).
    (j) Limitation. A protest may not be filed under this section with 
respect to the following:
    (1) Issues not arising under the procurement provisions of this 
subchapter; or
    (2) Issues relating to the selection of a consulting engineer, 
provided that a protest may be filed only with respect to the mandatory 
procedural requirements of Sec. Sec. 35.937 through 35.937-9;
    (3) Issues primarily determined by State or local law or ordinances 
and as to which the Regional Administrator, upon review, determines that 
there is no contravening Federal requirement and that the grantee's 
action has a rational basis (see paragraph (e)(4) of this section).
    (4) Provisions of Federal regulations applicable to direct Federal 
contracts,

[[Page 490]]

unless such provisions are explicitly referred to or incorporated in 
this subpart;
    (5) Basic project design determinations (for example, the selection 
of incineration versus other methods of disposal of sludge);
    (6) Award of subcontracts or issuance of purchase orders under a 
formally advertised, competitively bid, lump-sum construction contract. 
However, protest may be made with respect to alleged violation of the 
following:
    (i) Specification requirements of Sec. 35.936-13; or
    (ii) Provisions of this subpart applicable to the procurement 
procedures, negotiation or award of subcontracts or issuance of purchase 
orders under Sec. Sec. 35.937-12 (subcontracts under subagreements for 
architectural or engineering services) or Sec. 35.938-9 (subcontracts 
under construction contracts).
    (k) Summary disposition. The Regional Administrator may summarily 
dismiss a protest, without proceedings under paragraph (d) or (e) of 
this section, if he determines that the protest is untimely, frivolous 
or without merit--for example, that the protested action of the grantee 
primarily involves issues of State or local law. Any such determination 
shall refer briefly to the facts substantiating the basis for the 
determination.
    (l) Index. The EPA General Counsel will publish periodically as a 
notice document in the Federal Register an index of Regional 
Administrator protest determinations. (See, e.g., 43 FR 29085, July 5, 
1978.)



Sec. 35.940  Determination of allowable costs.

    The grantee will be paid, upon request in accordance with 
Sec. 35.945, for the Federal share of all necessary costs within the 
scope of the approved project and determined to be allowable in 
accordance with Sec. 30.705 of this chapter, this subpart, and the grant 
agreement.



Sec. 35.940-1  Allowable project costs.

    Allowable costs include:
    (a) Costs of salaries, benefits, and expendable material the grantee 
incurs for the project, except as provided in Sec. 35.940-2(g);
    (b) Costs under construction contracts;
    (c) Professional and consultant services;
    (d) Facilities planning directly related to the treatment works;
    (e) Sewer system evaluation (Sec. 35.927);
    (f) Project feasibility and engineering reports;
    (g) Costs required under the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970 (42 U.S.C. 4621 et seq., 4651 
et seq.), and part 4 of this chapter;
    (h) Costs of complying with the National Environmental Policy Act, 
including costs of public notices and hearings;
    (i) Preparation of construction drawings, specifications, estimates, 
and construction contract documents;
    (j) Landscaping;
    (k) Removal and relocation or replacement of utilities, for which 
the grantee is legally obligated to pay;
    (l) Materials acquired, consumed, or expended specifically for the 
project;
    (m) A reasonable inventory of laboratory chemicals and supplies 
necessary to initiate plant operations;
    (n) Development and preparation of an operation and maintenance 
manual;
    (o) A plan of operation, in accordance with guidance issued by the 
Administrator;
    (p) Start-up services for new treatment works, in accordance with 
guidance issued by the Administrator;
    (q) Project identification signs (Sec. 30.625-3 of this chapter);
    (r) Development of a municipal pretreatment program approvable under 
part 403 of this chapter, and purchase of monitoring equipment and 
construction of facilities to be used by the municipal treatment works 
in the pretreatment program;
    (s) Costs of complying with the procurement requirements of these 
regulations (see Sec. 35.936-20).
    (t) Reasonable costs of public participation incurred by grantees 
which are identified in a public participation work plan, or which are 
otherwise approved by EPA, shall be allowable.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 10304, Feb. 16, 1979]

[[Page 491]]



Sec. 35.940-2  Unallowable costs.

    Costs which are not necessary for the construction of a treatment 
works project are unallowable. Such costs include, but are not limited 
to:
    (a) Basin or areawide planning not directly related to the project;
    (b) Bonus payments not legally required for completion of 
construction before a contractual completion date;
    (c) Personal injury compensation or damages arising out of the 
project, whether determined by adjudication, arbitration, negotiation, 
or otherwise;
    (d) Fines and penalties due to violations of, or failure to comply 
with, Federal, State, or local laws;
    (e) Costs outside the scope of the approved project;
    (f) Interest on bonds or any other form of indebtedness required to 
finance the project costs;
    (g) Ordinary operating expenses of local government, such as 
salaries and expenses of a mayor, city council members, or city 
attorney, except as provided in Sec. 35.940-4;
    (h) Site acquisition (for example, sewer rights-of-way, sewage 
treatment plantsite, sanitary landfills and sludge disposal areas) 
except as otherwise provided in Sec. 35.940-3(a);
    (i) Costs for which payment has been or will be received under 
another Federal assistance program;
    (j) Costs of equipment or material procured in violation of 
Sec. 35.938-4(h);
    (k) Costs of studies under Sec. 35.907 (d)(6) and (7) when performed 
solely for the purpose of seeking an allowance for removal of pollutants 
under part 403 of this chapter;
    (l) Costs of monitoring equipment used by industry for sampling and 
analysis of industrial discharges to municipal treatment works;
    (m) Construction of privately-owned treatment works, including 
pretreatment facilities, except as authorized by section 201(h) of the 
Act and Sec. 35.918;
    (n) Preparation of a grant application, including a plan of study.



Sec. 35.940-3  Costs allowable, if approved.

    Certain direct costs are sometimes necessary for the construction of 
a treatment works. The following costs are allowable if reasonable and 
if the Regional Administrator approves them in the grant agreement.
    (a) Land acquired after October 17, 1972, that will be an integral 
part of the treatment process, or that will be used for ultimate 
disposal of residues resulting from such treatment (for example, land 
for spray irrigation of sewage effluent).
    (b) Land acquired after December 26, 1977, that will be used for 
storage of treated wastewater in land treatment systems before land 
application.
    (c) Land acquired after December 26, 1977, that will be used for 
composting or temporary storage of compost residues which result from 
wastewater treatment, if EPA has approved a program for use of the 
compost.
    (d) Acquisition of an operable portion of a treatment works. This 
type of acquisition is generally not allowable except when determined by 
the Regional Administrator in accordance with guidance issued by the 
Administrator.
    (e) Rate determination studies required under Sec. 35.925-11.
    (f) A limited amount of end-of-pipe sampling and associated analysis 
of industrial discharges to municipal treatment works as provided in 
Sec. 35.907(f).



Sec. 35.940-4  Indirect costs.

    Indirect costs shall be allowable in accordance with an indirect 
cost agreement negotiated and incorporated in the grant agreement. An 
indirect cost agreement must identify those cost elements allowable 
under Sec. 35.940-1. Where the benefits derived from indirect services 
cannot be readily determined, a lump sum for overhead may be negotiated 
if EPA determines that this amount will be approximately the same as the 
actual indirect costs.



Sec. 35.940-5  Disputes concerning allowable costs.

    The grantee should seek to resolve any questions relating to cost 
allowability or allocation at its earliest opportunity (if possible, 
before execution of the grant agreement). Final determinations 
concerning the allowability of costs shall be conclusive unless appealed 
within 30 days in accordance with the ``Disputes'' provisions of part 
30, subpart J, of this subchapter.

[[Page 492]]



Sec. 35.945  Grant payments.

    The grantee shall be paid the Federal share of allowable project 
costs incurred within the scope of an approved project and which are 
currently due and payable from the grantee (i.e., not including withheld 
or deferred amounts), subject to the limitations of Sec. Sec. 35.925-18, 
35.930-5, 35.930-6, and 35.965 (b) and (c), up to the grant amount set 
forth in the grant agreement and any amendments thereto. Payments for 
engineering services for step 1, 2 or 3 shall be made in accordance with 
Sec. 35.937-10 and payments for step 3 construction contracts shall be 
made in accordance with Sec. Sec. 35.938-6 and 35.938-7. All allowable 
costs incurred before initiation of construction of the project must be 
claimed in the application for grant assistance for that project before 
the award of the assistance or no subsequent payment will be made for 
the costs.
    (a) Initial request for payment. Upon award of grant assistance, the 
grantee may request payment for the unpaid Federal share of actual or 
estimated allowable project costs incurred before grant award subject to 
the limitations of Sec. 35.925-18. Payment for such costs shall be made 
in accordance with the negotiated payment schedule included in the grant 
agreement.
    (b) Interim requests for payment. The grantee may submit requests 
for payments for allowable costs in accordance with the negotiated 
payment schedule included in the grant agreement. Upon receipt of a 
request for payment, subject to the limitations set forth in 
Sec. 30.615-3 of this subchapter and Sec. Sec. 35.935-12, 35.935-13, and 
35.935-16, the Regional Administrator shall cause to be disbursed from 
available appropriated funds such amounts as are necessary so that the 
total amount of Federal payments to the grantee for the project is equal 
to the Federal share of the actual or estimated allowable project costs 
incurred to date, as certified by the grantee in its most recent request 
for payment. Generally, payments will be made within 20 days after 
receipt of a request for payment.
    (c) Adjustment. At any time before final payment under the grant, 
the Regional Administrator may cause any request(s) for payment to be 
reviewed or audited. Based on such review or audit, any payment may be 
reduced for prior overpayment or increased for prior underpayment.
    (d) Refunds, rebates, credits, etc. The Federal share of any 
refunds, rebates, credits, or other amounts (including any interest) 
that accrue to or are received by the grantee for the project, and that 
are properly allocable to costs for which the grantee has been paid 
under a grant, must be credited to the current State allotment or paid 
to the United States. Reasonable expenses incurred by the grantee for 
the purpose of securing such refunds, rebates, credits, or other amounts 
shall be allowable under the grant when approved by the Regional 
Administrator.
    (e) Final payment. After completion of final inspection under 
Sec. 35.935-14, approval of the request for payment which the grantee 
designates as the ``final payment request,'' and the grantee's 
compliance with all applicable requirements of this subchapter and the 
grant agreement, the Regional Administrator shall pay to the grantee any 
balance of the Federal share of allowable project costs which has not 
already been paid. The grantee must submit the final payment request 
promptly after final inspection.
    (f) Assignment and release. By its acceptance of final payment, the 
grantee agrees to assign to the United States the Federal share of 
refunds, rebates, credits or other amounts (including any interest) 
properly allocable to costs for which the grantee has been paid by the 
Government under the grant. The grantee thereby also releases and 
discharges the United States, its officers, agents, and employees from 
all liabilities, obligations, and claims arising out of the project work 
or under the grant, subject only to exceptions previously specified in 
writing between the Regional Administrator and the grantee.
    (g) Payment of costs incurred under the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act. Notwithstanding 
the provisions of paragraph (a) of this section, if the Regional 
Administrator determines it is necessary for the expeditious completion 
of a project, he may make advance payment after grant award under

[[Page 493]]

Sec. 4.502(c) of this subchapter for the EPA share of the cost of any 
payment of relocation assistance by the grantee. The requirements in 
Sec. 30.615-1 (b) and (d) of this subchapter apply to any advances of 
funds for assistance payments.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 39340, July 5, 1979]



Sec. 35.950  Suspension, termination or annulment of grants.

    Grants may be suspended under Sec. 30.915, or terminated or annulled 
under Sec. 30.920. The State agency shall be concurrently notified in 
writing of any such action.



Sec. 35.955  Grant amendments to increase grant amounts.

    Grant agreements may be amended under Sec. 30.900-1 of this chapter 
for project changes which have been approved under Sec. Sec. 30.900 and 
35.935-11 of this subchapter. However, no grant agreement may be amended 
to increase the amount of a grant unless the State agency has approved 
the grant increase from available State allotments and reallotments 
under Sec. 35.915.



Sec. 35.960  Disputes.

    (a) The Regional Administrator's final determination on the 
ineligibility of a project (see Sec. 35.915(h)) or a grant applicant 
(see Sec. 35.920-1), on the Federal share (see Sec. 35.930-5(b)), or on 
any dispute arising under a grant shall be final and conclusive unless 
the applicant or grantee appeals within 30 days from the date of receipt 
of the final determination. (See subpart J of part 30 of this 
subchapter.)
    (b) The EPA General Counsel will publish periodically as a Notice 
document in the Federal Register a digest of grant appeals decisions.



Sec. 35.965  Enforcement.

    If the Regional Administrator determines that the grantee has failed 
to comply with any provision of this subpart, he may impose any of the 
following sanctions:
    (a) The grant may be terminated or annulled under Sec. 30.920 of 
this subchapter;
    (b) Project costs directly related to the noncompliance may be 
disallowed;
    (c) Payment otherwise due to the grantee of up to 10 percent may be 
withheld (see Sec. 30.615-3 of this chapter);
    (d) Project work may be suspended under Sec. 30.915 of this 
subchapter;
    (e) A noncomplying grantee may be found nonresponsible or ineligible 
for future Federal assistance or a noncomplying contractor may be found 
nonresponsible or ineligible for approval for future contract award 
under EPA grants;
    (f) An injunction may be entered or other equitable relief afforded 
by a court of appropriate jurisdiction;
    (g) Such other administrative or judicial action may be instituted 
if it is legally available and appropriate.



Sec. 35.970  Contract enforcement.

    (a) Regional Administrator authority. At the request of a grantee, 
the Regional Administrator is authorized to provide technical and legal 
assistance in the administration and enforcement of any contract related 
to treatment works for which an EPA grant was made and to intervene in 
any civil action involving the enforcement of such contracts, including 
contract disputes which are the subject of either arbitration or court 
action. Any assistance is to be provided at the discretion of the 
Regional Administrator and in a manner determined to best serve the 
public interest. Factors which the Regional Administrator may consider 
in determining whether to provide assistance are:
    (1) Available agency resources.
    (2) Planned or ongoing enforcement action.
    (3) The grantee's demonstration of good faith to resolve contract 
matters at issue.
    (4) The grantee's adequate documentation.
    (5) The Federal interest in the contract matters at issue.
    (b) Grantee request. The grantee's request for technical or legal 
assistance should be submitted in writing and be accompained by 
documentation adequate to inform the Regional Administrator of the 
nature and necessity of the requested assistance. A grantee may orally 
request assistance from the Regional Administrator on an emergency 
basis.

[[Page 494]]

    (c) Privity of contract. The Regional Administrator's technical or 
legal involvement in any contract dispute will not make EPA a party to 
any contract entered into by the grantee. (See Sec. 35.936-8.)
    (d) Delegation to States. The authority to provide technical and 
legal assistance in the administration of contract matters described in 
this section may be delegated to a State agency under subpart F of this 
part if the State agency can demonstrate that it has the appropriate 
legal authority to undertake such functions.

           Appendix A--Cost-Effectiveness Analysis Guidelines

    1. Purpose. These guidelines represent Agency policies and 
procedures for determining the most cost-effective waste treatment 
management system or component part.
    2. Authority. These guidelines are provided under sections 212(2)(C) 
and 217 of the Clean Water Act.
    3. Applicability. These guidelines, except as otherwise noted, apply 
to all facilities planning under step 1 grant assistance awarded after 
September 30, 1978. The guidelines also apply to State or locally 
financed facilities planning on which subsequent step 2 or step 3 
Federal grant assistance is based.
    4. Definitions. Terms used in these guidelines are defined as 
follows:
    a. Waste treatment management system. Used synonymously with 
``complete waste treatment system'' as defined in Sec. 35.905 of this 
subpart.
    b. Cost-effectiveness analysis. An analysis performed to determine 
which waste treatment management system or component part will result in 
the minimum total resources costs over time to meet Federal, State, or 
local requirements.
    c. Planning period. The period over which a waste treatment 
management system is evaluated for cost-effectiveness. The planning 
period begins with the system's initial operation.
    d. Useful life. The estimated period of time during which a 
treatment works or a component of a waste treatment management system 
will be operated.
    e. Disaggregation. The process or result of breaking down a sum 
total of population or economic activity for a State or other 
jurisdiction (i.e., designated 208 area or SMSA) into smaller areas or 
jurisdictions.
    5. Identification, selection, and screening of alternatives. a. 
Identification of alternatives. All feasible alternative waste 
management systems shall be initially identified. These alternatives 
should include systems discharging to receiving waters, land application 
systems, on-site and other non-centralized systems, including revenue 
generating applications, and systems employing the reuse of wastewater 
and recycyling of pollutants. In identifying alternatives, the applicant 
shall consider the possibility of no action and staged development of 
the system.
    b. Screening of alternatives. The identified alternatives shall be 
systematically screened to determine those capable of meeting the 
applicable Federal, State and local criteria.
    c. Selection of alternatives. The identified alternatives shall be 
initially analyzed to determine which systems have cost-effective 
potential and which should be fully evaluated according to the cost-
effectiveness analysis procedures established in the guidelines.
    d. Extent of effort. The extent of effort and the level of 
sophistication used in the cost-effectiveness analysis should reflect 
the project's size and importance. Where processes or techniques are 
claimed to be innovative technology on the basis of the cost reduction 
criterion contained in paragraph 6e(1) of appendix E to this subpart, a 
sufficiently detailed cost analysis shall be included to substantiate 
the claim to the satisfaction of the Regional Administrator.
    6. Cost-effectiveness analysis procedures.
    a. Method of analysis. The resources costs shall be determined by 
evaluating opportunity costs. For resources that can be expressed in 
monetary terms, the analysis will use the interest (discount) rate 
established in paragraph 6e. Monetary costs shall be calculated in terms 
of present worth values or equivalent annual values over the planning 
period defined in section 6b. The analysis shall descriptively present 
nonmonetary factors (e.g., social and environmental) in order to 
determine their significance and impact. Nonmonetary factors include 
primary and secondary environmental effects, implementation capability, 
operability, performance reliability and flexibility. Although such 
factors as use and recovery of energy and scarce resources and recycling 
of nutrients are to be included in the monetary cost analysis, the non-
monetary evaluation shall also include them. The most cost-effective 
alternative shall be the waste treatment management system which the 
analysis determines to have the lowest present worth or equivalent 
annual value unless nonmonetary costs are overriding. The most cost-
effective alternative must also meet the minimum requirements of 
applicable effluent limitations, groundwater protection, or other 
applicable standards established under the Act.
    b. Planning period. The planning period for the cost-effectiveness 
analysis shall be 20 years.
    c. Elements of monetary costs. The monetary costs to be considered 
shall include the total value of the resources which are attributable to 
the waste treatment management system

[[Page 495]]

or to one of its component parts. To determine these values, all monies 
necessary for capital construction costs and operation and maintenance 
costs shall be identified.
    (1) Capital construction costs used in a cost-effective analysis 
shall include all contractors' costs of construction including overhead 
and profit, costs of land, relocation, and right-of-way and easement 
acquisition; costs of design engineering, field exploration and 
engineering services during construction; costs of administrative and 
legal services including costs of bond sales; startup costs such as 
operator training; and interest during construction. Capital 
construction costs shall also include contingency allowances consistent 
with the cost estimate's level of precision and detail.
    (2) The cost-effectiveness analysis shall include annual costs for 
operation and maintenance (including routine replacement of equipment 
and equipment parts). These costs shall be adequate to ensure effective 
and dependable operation during the system's planning period. Annual 
costs shall be divided between fixed annual costs and costs which would 
depend on the annual quantity of waste water collected and treated. 
Annual revenues generated by the waste treatment management system 
through energy recovery, crop production, or other outputs shall be 
deducted from the annual costs for operation and maintenance in 
accordance with guidance issued by the Administrator.
    d. Prices. The applicant shall calculate the various components of 
costs on the basis of market prices prevailing at the time of the cost-
effectiveness analysis. The analysis shall not allow for inflation of 
wages and prices, except those for land, as described in paragraph 6h(1) 
and for natural gas. This stipulation is based on the implied assumption 
that prices, other than the exceptions, for resources involved in 
treatment works construction and operation, will tend to change over 
time by approximately the same percentage. Changes in the general level 
of prices will not affect the results of the cost-effectiveness 
analysis. Natural gas prices shall be escalated at a compound rate of 4 
percent annually over the planning period, unless the Regional 
Administrator determines that the grantee has justified use of a greater 
or lesser percentage based upon regional differentials between 
historical natural gas price escalation and construction cost 
escalation. Land prices shall be appreciated as provided in paragraph 
6h(1). Both historical data and future projections support the gas and 
land price escalations relative to those for other goods and services 
related to waste water treatment. Price escalation rates may be updated 
periodically in accordance with Agency guidelines.
    e. Interest (discount) rate. The rate which the Water Resources 
Council establishes annually for evaluation of water resource projects 
shall be used.
    f. Interest during construction. (1) Where capital expenditures can 
be expected to be fairly uniform during the construction period, 
interest during construction may be calculated at I=1/2PCi where:

I=the interest accrued during the construction period,
P=the construction period in years,
C=the total capital expenditures,
i=the interest rate (discount rate in section 6e).

    (2) Where expenditures will not be uniform, or when the construction 
period will be greater than 4 years, interest during construction shall 
be calculated on a year-by-year basis.
    g. Useful life. (1) The treatment works' useful life for a cost-
effectiveness analysis shall be as follows:

Land--permanent.
Waste water conveyance structures (includes collection systems, outfall 
          pipes, interceptors, force mains, tunnels, etc.)--50 years.
Other structures (includes plant building, concrete process tankage, 
          basins, lift stations structures, etc.)--30-50 years.
Process equipment--15-20 years.
Auxiliary equipment--10-15 years.

    (2) Other useful life periods will be acceptable when sufficient 
justification can be provided. Where a system or a component is for 
interim service, the anticipated useful life shall be reduced to the 
period for interim service.
    h. Salvage value. (1) Land purchased for treatment works, including 
land used as part of the treatment process or for ultimate disposal of 
residues, may be assumed to have a salvage value at the end of the 
planning period at least equal to its prevailing market value at the 
time of the analysis. In calculating the salvage value of land, the land 
value shall be appreciated at a compound rate of 3 percent annually over 
the planning period, unless the Regional Administrator determines that 
the grantee has justified the use of a greater or lesser percentage 
based upon historical differences between local land cost escalation and 
construction cost escalation. The land cost escalation rate may be 
updated periodically in accordance with Agency guidelines. Right-of-way 
easements shall be considered to have a salvage value not greater than 
the prevailing market value at the time of the analysis.
    (2) Structures will be assumed to have a salvage value if there is a 
use for them at the end of the planning period. In this case, salvage 
value shall be estimated using straight line depreciation during the 
useful life of the treatment works.

[[Page 496]]

    (3) The method used in paragraph 6h(2) may be used to estimate 
salvage value at the end of the planning period for phased additions of 
process equipment and auxiliary equipment.
    (4) When the anticipated useful life of a facility is less than 20 
years (for analysis of interim facilities), salvage value can be claimed 
for equipment if it can be clearly demonstrated that a specific market 
or reuse opportunity will exist.
    7. Innovative and alternative wastewater treatment processes and 
techniques.
    a. Beginning October 1, 1978, the capital costs of publicly owned 
treatment works which use processes and techniques meeting the criteria 
of appendix E to this subpart and which have only a water pollution 
control function, may be eligible if the present worth cost of the 
treatment works is not more than 115 percent of the present worth cost 
of the most cost-effective pollution control system, exclusive of 
collection sewers and interceptors common to the two systems being 
compared, by 115 percent, except for the following situation.
    b. Where innovative or alternative unit processes would serve in 
lieu of conventional unit processes in a conventional waste water 
treatment plant, and the present worth costs of the nonconventional unit 
processes are less than 50 percent of the present worth costs of the 
treatment plant, multiply the present worth costs of the replaced 
conventional processes by 115 percent, and add the cost of nonreplaced 
unit processes.
    c. The eligibility of multipurpose projects which combine a water 
pollution control function with another function, and which use 
processes and techniques meeting the criteria of appendix E to this 
subpart, shall be determined in accordance with guidance issued by the 
Administrator.
    d. The above provisions exclude individual systems under 
Sec. 35.918. The regional Administrator may allow a grantee to apply the 
15-percent preference authorized by this section to facility plans 
prepared under step 1 grant assistance awarded before October 1, 1978.
    8. Cost-effective staging and sizing of treatment works.
    a. Population projections. (1) The disaggregation of State 
projections of population shall be the basis for the population 
forecasts presented in individual facility plans, except as noted. These 
State projections shall be those developed in 1977 by the Bureau of 
Economic Analysis (BEA), Department of Commerce, unless, as of June 26, 
1978, the State has already prepared projections. These State 
projections may be used instead of the BEA projections if the year 2000 
State population does not exceed that of the BEA projection by more than 
5 percent. If the difference exceeds this amount, the State must either 
justify or lower its projection. Justification must be based on the 
historical and current trends (e.g., energy and industrial development, 
military base openings) not taken into account in the BEA projections. 
The State must submit for approval to the Administrator the request and 
justification for use of State projections higher than the BEA 
projections. By that time, the State shall issue a public notice of the 
request. Before the Administrator's approval of the State projection, 
the Regional Administrator shall solicit public comments and hold a 
public hearing if important issues are raised about the State 
projection's validity. State projections and disaggregations may be 
updated periodically in accordance with Agency guidelines.
    (2) Each State, working with designated 208 planning agencies, 
organizations certified by the Governor under section 174(a) of the 
Clean Air Act, as amended, and other regional planning agencies in the 
State's nondesignated areas, shall disaggregate the State population 
projection among its designated 208 areas, other standard metropolitan 
statistical areas (SMSA's) not included in the 208 area, and non-SMSA 
counties or other appropriate jurisdictions. States that had enacted 
laws, as of June 26, 1978, mandating disaggregation of State population 
totals to each county for areawide 208 planning may retain this 
requirement. When disaggregating the State population total, the State 
shall take into account the projected population and economic activities 
identified in facility plans, areawide 208 plans and municipal master 
plans. The sum of the disaggregated projections shall not exceed the 
State projection. Where a designated 208 area has, as of June 26, 1978, 
already prepared a population projection, it may be used if the year 
2000 population does not exceed that of the disaggregated projection by 
more than 10 percent. The State may then increase its population 
projection to include all such variances rather than lower the 
population projection totals for the other areas. If the 208 area 
population forecast exceeds the 10 percent allowance, the 208 agency 
must lower its projection within the allowance and submit the revised 
projection for approval to the State and the Regional Administrator.
    (3) The State projection totals and the disaggregations will be 
submitted as an output of the statewide water quality management 
process. The submission shall include a list of designated 208 areas, 
all SMSA's, and counties or other units outside the 208 areas. For each 
unit the disaggregated population shall be shown for the years 1980, 
1990, and 2000. Each State will submit its projection totals and 
disaggregations for the Regional Administrator's approval before October 
1, 1979. Before this submission, the State shall hold a public meeting 
on the disaggregations

[[Page 497]]

and shall provide public notice of the meeting consistent with part 25 
of this chapter. (See Sec. 35.917(e).)
    (4) When the State projection totals and disaggregations are 
approved they shall be used thereafter for areawide water quality 
management planning as well as for facility planning and the needs 
surveys under section 516(b) of the Act. Within areawide 208 planning 
areas, the designated agencies, in consultation with the States, shall 
disaggregate the 208 area projections among the SMSA and non-SMSA areas 
and then disaggregate these SMSA and non-SMSA projections among the 
facility planning areas and the remaining areas. For those SMSA's not 
included within designated 208 planning areas, each State, with 
assistance from appropriate regional planning agencies, shall 
disaggregate the SMSA projection among the facility planning areas and 
the remaining areas within the SMSA. The State shall check the facility 
planning area forecasts to ensure reasonableness and consistency with 
the SMSA projections.
    (5) For non-SMSA facility planning areas not included in designated 
areawide 208 areas, the State may disaggregate population projections 
for non-SMSA counties among facility planning areas and remaining areas. 
Otherwise, the grantee is to forecast future population growth for the 
facility planning area by linear extrapolation of the recent past (1960 
to present) population trends for the planning area, use of correlations 
of planning area growth with population growth for the township, county 
or other larger parent area population, or another appropriate method. A 
population forecast may be raised above that indicated by the extension 
of past trends where likely impacts (e.g., significant new energy 
developments, large new industries, Federal installations, or 
institutions) justify the difference. The facilities plan must document 
the justification. These population forecasts should be based on 
estimates of new employment to be generated. The State shall check 
individual population forecasts to insure consistency with overall 
projections for non-SMSA counties and justification for any difference 
from past trends.
    (6) Facilities plans prepared under step 1 grant assistance awarded 
later than 6 months after Agency approval of the State disaggregations 
shall follow population forecasts developed in accordance with these 
guidelines.
    b. Wastewater flow estimates. (1) In determining total average daily 
flow for the design of treatment works, the flows to be considered 
include the average daily base flows (ADBF) expected from residential 
sources, commercial sources, institutional sources, and industries the 
works will serve plus allowances for future industries and nonexcessive 
infiltration/inflow. The amount of nonexcessive infiltration/inflow not 
included in the base flow estimates presented herein, is to be 
determined according to the Agency guidance for sewer system evaluation 
or Agency policy on treatment and control of combined sewer overflows 
(PRM 75-34).
    (2) The estimation of existing and future ADBF, exclusive of flow 
reduction from combined residential, commercial and institutional 
sources, shall be based upon one of the following methods:
    (a) Preferred method. Existing ADBF is estimated based upon a fully 
documented analysis of water use records adjusted for consumption and 
losses or on records of wastewater flows for extended dry periods less 
estimated dry weather infiltration. Future flows for the treatment works 
design should be estimated by determining the existing per capita flows 
based on existing sewered resident population and multiplying this 
figure by the future projected population to be served. Seasonal 
population can be converted to equivalent full time residents using the 
following multipliers:

Day-use visitor..............................................    0.1-0.2
Seasonal visitor.............................................    0.5-0.8
                                                                        

The preferred method shall be used wherever water supply records or 
wastewater flow data exist. Allowances for future increases of per 
capita flow over time will not be approved.
    (b) Optional method. Where water supply and wastewater flow data are 
lacking, existing and future ADBF shall be estimated by multiplying a 
gallon per capita per day (gpcd) allowance not exceeding those in the 
following table, except as noted below, by the estimated total of the 
existing and future resident populations to be served. The tabulated 
ADBF allowances, based upon several studies of municipal water use, 
include estimates for commercial and institutional sources as well as 
residential sources. The Regional Administrator may approve exceptions 
to the tabulated allowances where large (more than 25 percent of total 
estimated ADBF) commercial and institutional flows are documented.

------------------------------------------------------------------------
                                                             Gallons per
                        Description                           capita per
                                                                 day    
------------------------------------------------------------------------
Non-SMSA cities and towns with projected total 10-year                  
 populations of 5,000 or less..............................        60-70
Other cities and towns.....................................        65-80
------------------------------------------------------------------------

    c. Flow reduction. The cost-effectiveness analysis for each facility 
planning area shall include an evaluation of the costs, cost savings, 
and effects of flow reduction measures unless the existing ADBF from the 
area is less than 70 gpcd, or the current population of the applicant 
municipality is under 10,000, or the Regional Administrator exempts the

[[Page 498]]

area for having an effective existing flow reduction program. Flow 
reduction measures include public education, pricing and regulatory 
approaches or a combination of these. In preparing the facilities plan 
and included cost effectiveness analysis, the grantee shall, as a 
minimum:
    (1) Estimate the flow reductions implementable and cost effective 
when the treatment works become operational and after 10 and 20 years of 
operation. The measures to be evaluated shall include a public 
information program; pricing and regulatory approaches; installation of 
water meters, and retrofit of toilet dams and low-flow showerheads for 
existing homes and other habitations; and specific changes in local 
ordinances, building codes or plumbing codes requiring installations of 
water saving devices such as water meters, water conserving toilets, 
showerheads, lavatory faucets, and appliances in new homes, motels, 
hotels, institutions, and other establishments.
    (2) Estimate the costs of the proposed flow reduction measures over 
the 20-year planning period, including costs of public information, 
administration, retrofit of existing buildings and the incremental 
costs, if any, of installing water conserving devices in new homes and 
establishments.
    (3) Estimate the energy reductions; total cost savings for 
wastewater treatment, water supply and energy use; and the net cost 
savings (total savings minus total costs) attributable to the proposed 
flow reduction measures over the planning period. The estimated cost 
savings shall reflect reduced sizes of proposed wastewater treatment 
works plus reduced costs of future water supply facility expansions.
    (4) Develop and provide for implementing a recommended flow 
reduction program. This shall include a public information program 
highlighting effective flow reduction measures, their costs, and the 
savings of water and costs for a typical household and for the 
community. In addition, the recommended program shall comprise those 
flow reduction measures which are cost effective, supported by the 
public and within the implementation authority of the grantee or another 
entity willing to cooperate with the grantee.
    (5) Take into account in the design of the treatment works the flow 
reduction estimated for the recommended program.
    d. Industrial flows. (1) The treatment works' total design flow 
capacity may include allowances for industrial flows. The allowances may 
include capacity needed for industrial flows which the existing 
treatment works presently serves. However, these flows shall be 
carefully reviewed and means of reducing them shall be considered. 
Letters of intent to the grantee are required to document capacity needs 
for existing flows from significant industrial users and for future 
flows from all industries intending to increase their flows or relocate 
in the area. Requirements for letters of intent from significant 
industrial dischargers are set forth in Sec. 35.925-11(c).
    (2) While many uncertainties accompany forecasting future industrial 
flows, there is still a need to allow for some unplanned future 
industrial growth. Thus, the cost-effective (grant eligible) design 
capacity and flow of the treatment works may include (in addition to the 
existing industrial flows and future industrial flows documented by 
letters of intent) a nominal flow allowance for future nonidentifiable 
industries or for unplanned industrial expansions, provided that 208 
plans, land use plans and zoning provide for such industrial growth. 
This additional allowance for future unplanned industrial flow shall not 
exceed 5 percent (or 10 percent for towns with less than 10,000 
population) of the total design flow of the treatment works exclusive of 
the allowance or 25 percent of the total industrial flow (existing plus 
documented future), whichever is greater.
    e. Staging of treatment plants. (1) The capacity of treatment plants 
(i.e., new plants, upgraded plants, or expanded plants) to be funded 
under the construction grants program shall not exceed that necessary 
for wastewater flows projected during an initial staging period 
determined by one of the following methods:
    (a) First method. The grantee shall analyze at least three 
alternative staging periods (10 years, 15 years, and 20 years). He shall 
select the least costly (i.e., total present worth or average annual 
cost) staging period.
    (b) Second method. The staging period shall not exceed the period 
which is appropriate according to the following table.

                  Staging Periods for Treatment Plants                  
------------------------------------------------------------------------
                                                                Staging 
              Flow growth factors (20 years)\1\                period\2\
                                                                (years) 
------------------------------------------------------------------------
Less than 1.3...............................................          20
1.3 to 1.8..................................................          15
Greater than 1.8............................................          10
------------------------------------------------------------------------
\1\Ratio of wastewater flow expected at end of 20 year planning period  
  to initial flow at the time the plant is expected to become           
  operational.                                                          
\2\Maximum initial staging period.                                      

    (2) A municipality may stage the construction of a treatment plant 
for a shorter period than the maximum allowed under this policy. A 
shorter staging period might be based upon environmental factors 
(secondary impacts, compliance with other environmental laws under 
Sec. 35.925-14, energy conservation, water supply), an objective 
concerning planned modular construction, the utilization of temporary 
treatment plants, or attainment of consistency with locally adopted 
plans including comprehensive and capital

[[Page 499]]

improvement plans. However, the staging period in no case may be less 
than 10 years, because of associated cost penalties and the time 
necessary to plan, apply for and receive funding, and construct later 
stages.
    (3) The facilities plan shall present the design parameters for the 
proposed treatment plant. Whenever the proposed treatment plant 
components' size or capacity would exceed the minimum reliability 
requirements suggested in the EPA technical bulletin, ``Design Criteria 
for Mechanical, Electric, and Fluid System and Component Reliability,'' 
a complete justification, including supporting data, shall be provided 
to the Regional Administrator for his approval.
    f. Staging of interceptors. Since the location and length of 
interceptors will influence growth, interceptor routes and staging of 
construction shall be planned carefully. They shall be consistent with 
approved 208 plans, growth management plans and other environmental laws 
under Sec. 35.925-14 and shall also be consistent with Executive orders 
for flood plains and wetlands.
    (1) Interceptors may be allowable for construction grant funding if 
they eliminate existing point source discharges and accommodate flows 
from existing habitations that violate an enforceable requirement of the 
Act. Unless necessary to meet those objectives, interceptors should not 
be extended into environmentally sensitive areas, prime agricultural 
lands and other undeveloped areas (density less than one household per 2 
acres). Where extension of an interceptor through such areas would be 
necessary to interconnect two or more communities, the grantee shall 
reassess the need for the interceptor by further consideration of 
alternative wastewater treatment systems. If the reassessment 
demonstrates a need for the interceptor, the grantee shall evaluate the 
interceptor's primary and secondary environmental impacts, and provide 
for appropriate mitigating measures such as rerouting the pipe to 
minimize adverse impacts or restricting future connections to the pipe. 
Appropriate and effective grant conditions (e.g., restricting sewer 
hookups) should be used where necessary to protect environmentally 
sensitive areas or prime agricultural lands from new development. NPDES 
permits shall include the conditions to insure implementation of the 
mitigating measures when new permits are issued to the affected 
treatment facilities in those cases where the measures are required to 
protect the treatment facilities against overloading.
    (2) Interceptor pipe sizes (diameters for cylindrical pipes) 
allowable for construction grant funding shall be based on a staging 
period of 20 years. A larger pipe size corresponding to a longer staging 
period not to exceed 40 years may be allowed if the grantee can 
demonstrate, wherever water quality management plans or other plans 
developed for compliance with laws under Sec. 35.925-14 have been 
approved, that the larger pipe would be consistent with projected land 
use patterns in such plans and that the larger pipe would reduce overall 
(primary plus secondary) environmental impacts. These environmental 
impacts include:
    (a) Primary impacts. (i) Short-term disruption of traffic, business 
and other daily activities.
    (ii) Destruction of flora and fauna, noise, erosion, and 
sedimentation.
    (b) Secondary impacts. (i) Pressure to rezone or otherwise 
facilitate unplanned development.
    (ii) Pressure to accelerate growth for quicker recovery of the non-
Federal share of the interceptor investments.
    (iii) Effects on air quality and environmentally sensitive areas by 
cultural changes.
    (3) The estimation of peak flows in interceptors shall be based upon 
the following considerations:
    (a) Daily and seasonal variations of pipe flows, the timing of flows 
from the various parts of the tributary area, and pipe storage effects.
    (b) The feasibility of off-pipe storage to reduce peak flows.
    (c) The use of an appropriate peak flow factor that decreases as the 
average daily flow to be conveyed increases.
    9. State guidelines. If a State has developed or chooses to develop 
comprehensive guidelines on cost-effective sizing and staging of 
treatment works, the Regional Administrator may approve all or portions 
of the State guidance for application to step 1 facility plans. Approved 
State guidance may be used instead of corresponding portions of these 
guidelines, if the following conditions are met:
    a. The State guidance must be at least as stringent as the 
provisions of these guidelines.
    b. The State must have held at least one public hearing on proposed 
State guidance, under regulations in part 25 of this chapter, before 
submitting the guidance for Agency approval.
    10. Additional capacity beyond the cost-effective capacity. 
Treatment works which propose to include additional capacity beyond the 
cost-effective capacity determined in accordance with these guidelines 
may receive Federal grant assistance if the following requirements are 
met:
    a. The facilities plan shall determine the most cost-effective 
treatment works and its associated capacity in accordance with these 
guidelines. The facilities plan shall also determine the actual 
characteristics and total capacity of the treatment works to be built.
    b. Only a portion of the cost of the entire proposed treatment works 
including the additional capacity shall be eligible for Federal

[[Page 500]]

funding. The portion of the cost of construction which shall be eligible 
for Federal funding under sections 203(a) and 202(a) of the Act shall be 
equivalent to the estimated construction costs of the most cost-
effective treatment works. For the eligibility determination, the costs 
of construction of the actual treatment works and the most cost-
effective treatment works must be estimated on a consistent basis. Up-
to-date cost curves published by EPA's Office of Water Program 
Operations or other cost estimating guidance shall be used to determine 
the cost ratios between cost-effective project components and those of 
the actual project. These cost ratios shall be multiplied by the step 2 
cost and step 3 contract costs of actual components to determine the 
eligible step 2 and step 3 costs.
    c. The actual treatment works to be built shall be assessed. It must 
be determined that the actual treatment works meets the requirements of 
the National Environmental Policy Act and all applicable laws, 
regulations, and guidance, as required of all treatment works by 
Sec. Sec. 35.925-8 and 35.925-14. Particular attention should be given 
to assessing the project's potential secondary environmental effects and 
to ensuring that air quality standards will not be violated. The actual 
treatment works' discharge must not cause violations of water quality 
standards.
    d. The Regional Administrator shall approve the plans, 
specifications, and estimates for the actual treatment works under 
section 203(a) of the Act, even though EPA will be funding only a 
portion of its designed capacity.
    e. The grantee shall satisfactorily assure the Agency that the funds 
for the construction costs due to the addtional capacity beyond the 
cost-effective treatment works' capacity as determined by EPA (i.e., the 
ineligible portion of the treatment works), as well as the local share 
of the grant eligible portion of the construction costs will be 
available.
    f. The grantee shall execute appropriate grant conditions or 
releases providing that the Federal Government is protected from any 
further claim by the grantee, the State, or any other party for any of 
the costs of construction due to the additional capacity.
    g. Industrial cost recovery shall be based upon the portion of the 
Federal grant allocable to the treatment of industrial wastes.
    h. The grantee must implement a user charge system which applies to 
the entire service area of the grantee, including any area served by the 
additional capacity.

     Appendix B--Federal Guidelines--User Charges for Operation and 
              Maintenance of Publicly Owned Treatment Works

    (a) Purpose. To set forth advisory information concerning user 
charges based on actual use pursuant to section 204 of the Clean Water 
Act, hereinafter referred to as the Act. Applicable requirements are set 
forth in subpart E (40 CFR part 35).
    (b) Authority. The authority for establishment of the user charge 
guidelines is contained in section 204(b)(2) of the Act.
    (c) Background. Section 204(b)(1) of the Act provides that after 
March 1, 1973, Federal grant applicants shall be awarded grants only 
after the Regional Administrator has determined that the applicant has 
adopted or will adopt a system of charges to assure that each recipient 
of waste treatment services will pay its proportionate share of the 
costs of operation and maintenance, including replacement. The intent of 
the Act with respect to user charges is to distribute the cost of 
operation and maintenance of publicly owned treatment works to the 
pollutant source and to promote self-sufficiency of treatment works with 
respect to operation and maintenance costs. The 1977 Amendments amended 
section 204(b) to allow grantees to establish user charge systems based 
on ad valorem taxes. This appendix does not apply to ad valorem user 
charge systems.
    (d) Definitions--(1) Replacement. Expenditures for obtaining and 
installing equipment, accessories, or appurtenances which are necessary 
to maintain the capacity and performance during the service life of the 
treatment works for which such works were designed and constructed. The 
term ``operation and maintenance'' includes replacement.
    (2) User charge. A charge levied on users of treatment works for the 
cost of operation and maintenance of such works.
    (e) Classes of users. At least two basic types of user charge 
systems are common. The first is to charge each user a share of the 
treatment works operation and maintenance costs based on his estimate of 
measured proportional contribution to the total treatment works loading. 
The second system establishes classes for users having similar flows and 
waste water characteristics; i.e., levels of biochemical oxygen demand, 
suspended solids, etc. Each class is then assigned its share of the 
waste treatment works operation and maintenance costs based on the 
proportional contribution of the class to the total treatment works 
loading. Either system is in compliance with these guidelines.
    (f) Criteria against which to determine the adequacy of user 
charges. The user charge system shall be approved by the Regional 
Administrator and shall be maintained by the grantee in accordance with 
the following requirements:
    (1) The user charge system must result in the distribution of the 
cost of operation and maintenance of treatment works within the 
grantee's jurisdiction to each user (or user class) in proportion to 
such user's contribution to the total wastewater loading of the

[[Page 501]]

treatment works. Factors such as strength, volume, and delivery flow 
rate characteristics shall be considered and included as the basis for 
the user's contribution to ensure a proportional distribution of 
operation and maintenance costs to each user (or user class).
    (2) For the first year of operation, operation and maintenance costs 
shall be based upon past experience for existing treatment works or some 
other rational method that can be demonstrated to be applicable.
    (3) The grantee shall review user charges annually and revise them 
periodically to reflect actual treatment works operation and maintenance 
costs.
    (4) The user charge system must generate sufficient revenue to 
offset the cost of all treatment works operation and maintenance 
provided by the grantee.
    (5) The user charge system must be incorporated in one or more 
municipal legislative enactments or other appropriate authority. If the 
project is a regional treatment works accepting wastewaters from 
treatment works owned by others, then the subscribers receiving waste 
treatment services from the grantee shall have adopted user charge 
systems in accordance with these guidelines. Such user charge systems 
shall also be incorporated in the appropriate municipal legislative 
enactments or other appropriate authority.
    (g) Model user charge systems. The user charge system adopted by the 
applicant must result in the distribution of treatment works operation 
and maintenance costs to each user (or user class) in approximate 
proportion to his contribution to the total wastewater loading of the 
treatment works. The following user charge models can be used for this 
purpose; however, the applicant is not limited to their use. The symbols 
used in the models are as defined below:

CT=Total operation and maintenance (O. & M.) costs per unit of 
          time.
Cu=A user's charge for O. & M. per unit of time.
Cs=A surcharge for wastewaters of excessive strength.
Vc=O&M cost for transportation and treatment of a unit of 
          wastewater volume.
Vu=Volume contribution from a user per unit of time.
VT=Total volume contribution from all users per unit of time.
Bc=O&M cost for treatment of a unit of biochemical oxygen demand 
          (BOD).
Bu=Total BOD contribution from a user per unit of time.
BT=Total BOD contribution from all users per unit of time.
B=Concentration of BOD from a user above a base level.
Sc=O&M cost for treatment of a unit of suspended solids.
Su=Total suspended solids contribution from a user per unit of 
          time.
S=Concentration of SS from a user above a base level.
Pc=O&M cost for treatment of a unit of any pollutant.
Pu=Total contribution of any pollutant from a user per unit of 
          time.
PT=Total contribution of any pollutant from all users per unit of 
          time.
P=Concentration of any pollutant from a user above a base level.

    (1) Model No. 1. If the treatment works is primarily flow dependent 
or if the BOD, suspended solids, and other pollutant concentrations 
discharged by all users are approximately equal, then user charges can 
be developed on a volume basis in accordance with the model below:

                    Cu=CT/VT(Vu)

    (2) Model No. 2.--When BOD, suspended solids, or other pollutant 
concentrations from a user exceed the range of concentration of these 
pollutants in normal domestic sewage, a surcharge added to a base 
charge, calculated by means of Model No. 1, can be levied. The surcharge 
can be computed by the model below:

            Cs=[Bc(B)+Sc(S)+Pc(P)]Vu

    (3) Model No. 3.--This model is commonly called the ``quantity/
quality formula'':

   Cu=VcVu+BcBu+ScSu+PcPu

    (h) Other considerations.--(1) Quantity discounts to large volume 
users will not be acceptable. Savings resulting from economies of scale 
should be apportioned to all users or user classes.
    (2) User charges may be established based on a percentage of the 
charge for water usage only in cases where the water charge is based on 
a constant cost per unit of consumption.

[39 FR 5270, Feb. 11, 1974]
  Appendix C-1--Required Provisions--Consulting Engineering Agreements

 1. General
 2. Responsibility of the Engineer
 3. Scope of Work
 4. Changes
 5. Termination
 6. Remedies
 7. Payment
 8. Project Design
 9. Audit; Access to Records
10. Price Reduction for Defective Cost or Pricing Data
11. Subcontracts
12. Labor Standards
13. Equal Employment Opportunity
14. Utilization of Small or Minority Business
15. Covenant Against Contingent Fees

[[Page 502]]

16. Gratuities
17. Patents
18. Copyrights and Rights in Data

                               1. general

    (a) The owner and the engineer agree that the following provisions 
apply to the EPA grant-eligible work to be performed under this 
agreement and that such provisions supersede any conflicting provisions 
of this agreement.
    (b) The work under this agreement is funded in part by a grant from 
the U.S. Environmental Protection Agency. Neither the United States nor 
the U.S. Environmental Protection Agency (hereinafter, ``EPA'') is a 
party to this agreement. This agreement which covers grant-eligible work 
is subject to regulations contained in 40 CFR 35.936, 35.937, and 35.939 
in effect on the date of execution of this agreement. As used in these 
clauses, the words ``the date of execution of this agreement'' mean the 
date of execution of this agreement and any subsequent modification of 
the terms, compensation or scope of services pertinent to unperformed 
work.
    (c) The owner's rights and remedies provided in these clauses are in 
addition to any other rights and remedies provided by law or this 
agreement.

                    2. responsibility of the engineer

    (a) The engineer shall be responsible for the professional quality, 
technical accuracy, timely completion, and the coordination of all 
designs, drawings, specifications, reports, and other services furnished 
by the engineer under this agreement. The engineer shall, without 
additional compensation, correct or revise any errors, omissions, or 
other deficiencies in his designs, drawings, specifications, reports, 
and other services.
    (b) The engineer shall perform such professional services as may be 
necessary to accomplish the work required to be performed under this 
agreement, in accordance with this agreement and applicable EPA 
requirements in effect on the date of execution of this agreement.
    (c) The owner's or EPA's approval of drawings, designs, 
specifications, reports, and incidental engineering work or materials 
furnished hereunder shall not in any way relieve the engineer of 
responsibility for the technical adequacy of his work. Neither the 
owner's nor EPA's review, approval or acceptance of, nor payment for, 
any of the services shall be construed to operate as a waiver of any 
rights under this agreement or of any cause of action arising out of the 
performance of this agreement.
    (d) The engineer shall be and shall remain liable, in accordance 
with applicable law, for all damages to the owner or EPA caused by the 
engineer's negligent performance of any of the services furnished under 
this agreement, except for errors, omissions or other deficiencies to 
the extent attributable to the owner, owner-furnished data or any third 
party. The engineer shall not be responsible for any time delays in the 
project caused by circumstances beyond the engineeer's control. Where 
innovative processes or techniques (see 40 CFR 35.908) are recommended 
by the engineer and are used, the engineer shall be liable only for 
gross negligence to the extent of such use.

                            3. scope of work

    The services to be performed by the engineer shall include all 
services required to complete the task or Step in accordance with 
applicable EPA regulations (40 CFR part 35, subpart E in effect on the 
date of execution of this agreement) to the extent of the scope of work 
as defined and set out in the engineering services agreement to which 
these provisions are attached.

                               4. changes

    (a) The owner may, at any time, by written order, make changes 
within the general scope of this agreement in the services or work to be 
performed. If such changes cause an increase or decrease in the 
engineer's cost of, or time required for, performance of any services 
under this agreement, whether or not changed by any order, an equitable 
adjustment shall be made and this agreement shall be modified in writing 
accordingly. The engineer must assert any claim for adjustment under 
this clause in writing within 30 days from the date of receipt by the 
engineer of the notification of change, unless the owner grants a 
further period of time before the date of final payment under this 
agreement.
    (b) No services for which an additional compensation will be charged 
by the engineer shall be furnished without the written authorization of 
the owner.
    (c) In the event that there is a modification of EPA requirements 
relating to the services to be performed under this agreement after the 
date of execution of this agreement, the increased or decreased cost of 
performance of the services provided for in this agreement shall be 
reflected in an appropriate modification of this agreement.

                             5. termination

    (a) Either party may terminate this agreement, in whole or in part, 
in writing, if the other party substantially fails to fulfill its 
obligations under this agreement through no fault of the terminating 
party. However, no such termination may be affected unless the other 
party is given (1) not less than ten (10) calendar days written notice 
(delivered by certified mail, return receipt requested) of intent to 
terminate and (2) an opportunity

[[Page 503]]

for consultation with the terminating party before termination.
    (b) The owner may terminate this agreement, in whole or in part, in 
writing, for its convenience, if the termination is for good cause (such 
as for legal or financial reasons, major changes in the work or program 
requirements, initiation of a new step) and the engineer is given (1) 
not less than ten (10) calendar days written notice (delivered by 
certified mail, return receipt requested) of intent to terminate, and 
(2) an opportunity for consultation with the terminating party before 
termination.
    (c) If the owner terminates for default, an equitable adjustment in 
the price provided for in this agreement shall be made, but (1) no 
amount shall be allowed for anticipated profit on unperformed services 
or other work, and (2) any payment due to the engineer at the time of 
termination may be adjusted to the extent of any additional costs the 
owner incurs because of the engineer's default. If the engineer 
terminates for default or if the owner terminates for convenience, the 
equitable adjustment shall include a reasonable profit for services or 
other work performed. The equitable adjustment for any termination shall 
provide for payment to the engineer for services rendered and expenses 
incurred before the termination, in addition to termination settlement 
costs the engineer reasonably incurs relating to commitments which had 
become firm before the termination.
    (d) Upon receipt of a termination action under paragraph (a) or (b) 
of this section 5., the engineer shall (1) promptly discontinue all 
services affected (unless the notice directs otherwise), and (2) deliver 
or otherwise make available to the owner all data, drawings, 
specifications, reports, estimates, summaries, and such other 
information and materials as the engineer may have accumulated in 
performing this agreement, whether completed or in process.
    (e) Upon termination under paragraph (a) or (b) of this section 5., 
the owner may take over the work and prosecute the same to completion by 
agreement with another party or otherwise. Any work the owner takes over 
for completion will be completed at the owner's risk, and the owner will 
hold harmless the engineer from all claims and damages arising out of 
improper use of the engineer's work.
    (f) If, after termination for failure of the engineer to fulfill 
contractual obligations, it is determined that the engineer had not so 
failed, the termination shall be deemed to have been effected for the 
convenience of the owner. In such event, adjustment of the price 
provided for in this agreement shall be made as paragraph (c) of this 
clause provides.

                               6. remedies

    Except as this agreement otherwise provides, all claims, counter-
claims, disputes, and other matters in question between the owner and 
the engineer arising out of or relating to this agreement or the breach 
of it will be decided by arbitration if the parties hereto mutually 
agree, or in a court of competent jurisdiction within the State in which 
the owner is located.

                               7. payment

    (a) Payment shall be made in accordance with the payment schedule 
incorporated in this agreement as soon as practicable upon submission of 
statements requesting payment by the engineer to the owner. If no such 
payment schedule is incorporated in this agreement, the payment 
provisions of paragraph (b) of this clause shall apply.
    (b) The engineer may request monthly progress payments and the owner 
shall make them as soon as practicable upon submission of statements 
requesting payment by the engineer to the owner. When such progress 
payments are made, the owner may withhold up to ten (10) percent of the 
vouchered amount until satisfactory completion by the engineer of work 
and services within a step called for under this agreement. When the 
owner determines that the work under this agreement or any specified 
task hereunder is substantially complete and that the amount of retained 
percentages is in excess of the amount considered by him to be adequate 
for his protection, he shall release to the engineer such excess amount.
    (c) No payment request made under paragraph (a) or (b) of this 
clause shall exceed the estimated amount and value of the work and 
services performed by the engineer under this agreement. The engineer 
shall prepare the estimates of work performed and shall supplement them 
with such supporting data as the owner may require.
    (d) Upon satisfactory completion of the work performed under this 
agreement, as a condition precedent to final payment under this 
agreement or to settlement upon termination of the agreement, the 
engineer shall execute and deliver to the owner a release of all claims 
against the owner arising under or by virtue of this agreement, other 
than such claims, if any, as may be specifically exempted by the 
engineer from the operation of the release in stated amounts to be set 
forth therein.

                            8. project design

    (a) In the performance of this agreement, the engineer shall, to the 
extent practicable, provide for maximum use of structures, machines, 
products, materials, construction methods, and equipment which are 
readily available through competitive procurement, or through standard 
or proven production

[[Page 504]]

techniques, methods, and processes, consistent with 40 CFR 35.936-3 and 
35.936-13 in effect on the date of execution of this agreement, except 
to the extent to which innovative technology may be used under 40 CFR 
35.908 in effect on the date of execution of this agreement.
    (b) The engineer shall not, in the performance of the work under 
this agreement, produce a design or specification which would require 
the use of structures, machines, products, materials, construction 
methods, equipment, or processes which the engineer knows to be 
available only from a sole source, unless the engineer has adequately 
justified the use of a sole source in writing.
    (c) The engineer shall not, in the performance of the work under 
this agreement, produce a design or specification which would be 
restrictive in violation of section 204(a)(6) of the Clean Water Act. 
This statute requires that no specification for bids or statement of 
work shall be written in such a manner as to contain proprietary, 
exclusionary, or discriminatory requirements other than those based upon 
performance, unless such requirements are necessary to test or 
demonstrate a specific thing, or to provide for necessary 
interchangeability of parts and equipment, or at least two brand names 
or trade names of comparable quality or utility are listed and are 
followed by the words ``or equal.'' With regard to materials, if a 
single material is specified, the engineer must be prepared to 
substantiate the basis for the selection of the material.
    (d) The engineer shall report to the owner any sole-source or 
restrictive design or specification giving the reason or reasons why it 
is necessary to restrict the design or specification.
    (e) The engineer shall not knowingly specify or approve the 
performance of work at a facility which is in violation of clean air or 
water standards and which is listed by the Director of the EPA Office of 
Federal Activities under 40 CFR part 15.

                       9. audit; access to records

    (a) The engineer shall maintain books, records, documents, and other 
evidence directly pertinent to performance on EPA grant work under this 
agreement in accordance with generally accepted accounting principles 
and practices consistently applied, and 40 CFR 30.605, 30.805, and 
35.935-7 in effect on the date of execution of this agreement. The 
engineer shall also maintain the financial information and data used by 
the engineer in the preparation or support of the cost submission 
required under 40 CFR 35.937-6(b) in effect on the date of execution of 
this agreement and a copy of the cost summary submitted to the owner. 
The U.S. Environmental Protection Agency, the Comptroller General of the 
United States, the U.S. Department of Labor, owner, and [the State water 
pollution control agency] or any of their duly authorized 
representatives shall have access to such books, records, documents, and 
other evidence for inspection, audit, and copying. The engineer will 
provide proper facilities for such access and inspection.
    (b) The engineer agrees to include paragraphs (a) through (e) of 
this clause in all his contracts and all tier subcontracts directly 
related to project performance that are in excess of $10,000.
    (c) Audits conducted under this provision shall be in accordance 
with generally accepted auditing standards and established procedures 
and guidelines of the reviewing or audit agency(ies).
    (d) The engineer agrees to the disclosure of all information and 
reports resulting from access to records under paragraphs (a) and (b) of 
this clause, to any of the agencies referred to in paragraph (a), 
provided that the engineer is afforded the opportunity for an audit exit 
conference and an opportunity to comment and submit any supporting 
documentation on the pertinent portions of the draft audit report and 
that the final audit report will include written comments of reasonable 
length, if any, of the engineer.
    (e) The engineer shall maintain and make available records under 
paragraphs (a) and (b) of this clause during performance on EPA grant 
work under this agreement and until 3 years from the date of final EPA 
grant payment for the project. In addition, those records which relate 
to any ``Dispute'' appeal under an EPA grant agreement, to litigation, 
to the settlement of claims arising out of such performance, or to costs 
or items to which an audit exception has been taken, shall be maintained 
and made available until 3 years after the date of resolution of such 
appeal, litigation, claim, or exception.

         10. price reduction for defective cost or pricing data

    (This clause is applicable if the amount of this agreement exceeds 
$100,000.)
    (a) If the owner or EPA determines that any price, including profit, 
negotiated in connection with this agreement or any cost reimbursable 
under this agreement was increased by any significant sums because the 
engineer or any subcontractor furnished incomplete or inaccurate cost or 
pricing data or data not current as certified in his certification of 
current cost or pricing data (EPA form 5700-41), then such price, cost, 
or profit shall be reduced accordingly and the agreement shall be 
modified in writing to reflect such reduction.
    (b) Failure to agree on a reduction shall be subject to the remedies 
clause of this agreement.


[[Page 505]]


    (Note: Since the agreement is subject to reduction under this clause 
by reason of defective cost or pricing data submitted in connection with 
certain subcontracts, the engineer may wish to include a clause in each 
such subcontract requiring the subcontractor to appropriately indemnify 
the engineer. It is also expected that any subcontractor subject to such 
indemnification will generally require substantially similar 
indemnification for defective cost or pricing data required to be 
submitted by his lower tier subcontractors.)

                            11. subcontracts

    (a) Any subcontractors and outside associates or consultants 
required by the engineer in connection with services under this 
agreement will be limited to such individuals or firms as were 
specifically identified and agreed to during negotiations, or as the 
owner specifically authorizes during the performance of this agreement. 
The owner must give prior approval for any substitutions in or additions 
to such subcontractors, associates, or consultants.
    (b) The engineer may not subcontract services in excess of thirty 
(30) percent (or ------ percent, if the owner and the engineer hereby 
agree) of the contract price to subcontractors or consultants without 
the owner's prior written approval.

                           12. labor standards

    To the extent that this agreement involves ``construction'' (as 
defined by the Secretary of Labor), the engineer agrees that such 
construction work shall be subject to the following labor standards 
provisions, to the extent applicable:
    (a) Davis-Bacon Act (40 U.S.C. 276a--276a-7);
    (b) Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333);
    (c) Copeland Anti-Kickback Act (18 U.S.C. 874); and
    (d) Executive Order 11246 (Equal Employment Opportunity);

and implementing rules, regulations, and relevant orders of the 
Secretary of Labor or EPA. The engineer further agrees that this 
agreement shall include and be subject to the ``Labor Standards 
Provisions for Federally Assisted Construction Contracts'' (EPA form 
5720-4) in effect at the time of execution of this agreement.

                    13. equal employment opportunity

    In accordance with EPA policy as expressed in 40 CFR 30.420-5, the 
engineer agrees that he will not discriminate against any employee or 
applicant for employment because of race, religion, color, sex, age, or 
national origin.

             14. utilization of small and minority business

    In accordance with EPA policy as expressed in 40 CFR 35.936-7, the 
engineer agrees that qualified small business and minority business 
enterprises shall have the maximum practicable opportunity to 
participate in the performance of EPA grant- assisted contracts and 
subcontracts.

                  15. covenant against contingent fees

    The engineer warrants that no person or selling agency has been 
employed or retained to solicit or secure this contract upon an 
agreement or understanding for a commission, percentage, brokerage, or 
contingent fee, excepting bona fide employees. For breach or violation 
of this warranty the owner shall have the right to annul this agreement 
without liability or in its discretion to deduct from the contract price 
or consideration, or otherwise recover, the full amount of such 
commission, percentage, brokerage, or contingent fee.

                             16. gratuities

    (a) If it is found, after notice and hearing, by the owner that the 
engineer, or any of the engineer's agents or representatives, offered or 
gave gratuities (in the form of entertainment, gifts, or otherwise), to 
any official, employee, or agent of the owner, of the State, or of EPA 
in an attempt to secure a contract or favorable treatment in awarding, 
amending, or making any determinations related to the performance of 
this agreement, the owner may, by written notice to the engineer, 
terminate the right of the engineer to proceed under this agreement. The 
owner may also pursue other rights and remedies that the law or this 
agreement provides. However, the existence of the facts upon which the 
owner bases such findings shall be in issue and may be reviewed in 
proceedings under the remedies clause of this agreement.
    (b) In the event this agreement is terminated as provided in 
paragraph (a) hereof, the owner shall be entitled: (1) To pursue the 
same remedies against the engineer as it could pursue in the event of a 
breach of the contract by the engineer, and (2) as a penalty, in 
addition to any other damages to which it may be entitled by law, to 
exemplary damages in an amount (as determined by the owner) which shall 
be not less than 3 nor more than 10 times the costs the engineer incurs 
in providing any such gratuities to any such officer or employee.

                               17. patents

    If this agreement involves research, developmental, experimental, or 
demonstration work and any discovery or invention arises or is developed 
in the course of or under this agreement, such invention or discovery 
shall

[[Page 506]]

be subject to the reporting and rights provisions of subpart D of 40 CFR 
part 30, in effect on the date of execution of this agreement, including 
appendix B of part 30. In such case, the engineer shall report the 
discovery or invention to EPA directly or through the owner, and shall 
otherwise comply with the owner's responsibilities in accordance with 
subpart D of 40 CFR part 30. The engineer agrees that the disposition of 
rights to inventions made under this agreement shall be in accordance 
with the terms and conditions of appendix B. The engineer shall include 
appropriate patent provisions to achieve the purpose of this condition 
in all subcontracts involving research, developmental, experimental, or 
demonstration work.

                    18. copyrights and rights in data

    (a) The engineer agrees that any plans, drawings, designs, 
specifications, computer programs (which are substantially paid for with 
EPA grant funds), technical reports, operating manuals, and other work 
submitted with a step 1 facilities plan or with a step 2 or step 3 grant 
application or which are specified to be delivered under this agreement 
or which are developed or produced and paid for under this agreement 
(referred to in this clause as ``Subject Data'') are subject to the 
rights in the United States, as set forth in subpart D of 40 CFR part 30 
and in appendix C to 40 CFR part 30, in effect on the date of execution 
of this agreement. These rights include the right to use, duplicate, and 
disclose such subject data, in whole or in part, in any manner for any 
purpose whatsoever, and to have others do so. For purposes of this 
clause, ``grantee'' as used in appendix C refers to the engineer. If the 
material is copyrightable, the engineer may copyright it, as appendix C 
permits, subject to the rights in the Government in appendix C, but the 
owner and the Federal Government reserve a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish, and use such materials, 
in whole or in part, and to authorize others to do so. The engineer 
shall include appropriate provisions to achieve the purpose of this 
condition in all subcontracts expected to produce copyrightable subject 
data.
    (b) All such subject data furnished by the engineer pursuant to this 
agreement are instruments of his services in respect of the project. It 
is understood that the engineer does not represent such subject data to 
be suitable for reuse on any other project or for any other purpose. If 
the owner reuses the subject data without the engineer's specific 
written verification or adaptation, such reuse will be at the risk of 
the owner, without liability to the engineer. Any such verification or 
adaptation will entitle the engineer to further compensation at rates 
agreed upon by the owner and the engineer.

        Appendix C-2--Required Provisions--Construction Contracts

                     supplemental general conditions

    1. General
    2. Changes
    3. Differing Site Conditions
    4. Suspension of Work
    5. Termination for Default; Damages for Delay; Time Extensions
    6. Termination for Convenience
    7. Remedies
    8. Labor Standards
    9. Utilization of Small or Minority Business
    10. Audit; Access to Records
    11. Price Reduction for Defective Cost or Pricing Data
    12. Covenant Against Contingent Fees
    13. Gratuities
    14. Patents
    15. Copyrights and Rights in Data
    16. Prohibition Against Listed Violating Facilities
    17. Buy American

                               1. general

    (a) The owner and the contractor agree that the following 
supplemental general provisions apply to the work to be performed under 
this contract and that these provisions supersede any conflicting 
provisions of this contract.
    (b) This contract is funded in part by a grant from the U.S. 
Environmental Protection Agency. Neither the United States nor any of 
its departments, agencies or employees is a party to this contract. This 
contract is subject to regulations contained in 40 CFR 35.936, 35.938, 
and 35.939 in effect on the date of execution of this contract.
    (c) The owner's rights and remedies provided in these clauses are in 
addition to any other rights and remedies provided by law or under this 
contract.

                               2. changes

    (a) The owner may, at any time, without notice to the sureties, by 
written order designated or indicated to be a change order, make any 
change in the work within the general scope of the contract, including 
but not limited to changes--
    (1) In the specifications (including drawings and designs);
    (2) In the method or manner of performance of the work;
    (3) In the owner-furnished facilities, equipment, materials, 
services, or site; or
    (4) Directing acceleration in the performance of the work.
    (b) Any other written order or an oral order (which terms as used in 
this paragraph (b) shall include direction, instruction, interpretation, 
or determination) from the owner, which causes any such change, shall be

[[Page 507]]

treated as a change order under this clause, if the contractor gives the 
owner written notice stating the date, circumstances, and source of the 
order and if the contractor regards the order as a change order.
    (c) Except as provided in this clause, no order, statement, or 
conduct of the owner shall be treated as a change under this clause or 
shall entitle the contractor to an equitable adjustment.
    (d) If any change under this clause causes an increase or decrease 
in the contractor's cost of, or the time required for, the performance 
of any part of the work under this contract, whether or not changed by 
any order, an equitable adjustment shall be made and the contract 
modified in writing accordingly. However, except for claims based on 
defective specifications, no claim for any change under paragraph (b) of 
this section 2., shall be allowed for any costs incurred more than 20 
days before the contractor gives written notice as there required. Also, 
in the case of defective specifications for which the owner is 
responsible, the equitable adjustment shall include any increased cost 
reasonably incurred by the contractor in attempting to comply with such 
defective specifications.
    (e) If the contractor intends to assert a claim for an equitable 
adjustment under this clause, he must, within 30 days after receipt of a 
written change order under (a) above or the furnishing of a written 
notice under paragraph (b) of this section 2., submit to the owner a 
written statement setting forth the general nature and monetary extent 
of such claim, unless the owner extends this period. The statement of 
claim hereunder may be included in the notice under paragraph (b) of 
this section 2.
    (f) No claim by the contractor for an equitable adjustment hereunder 
shall be allowed if asserted after final payment under this contract.

                      3. differing site conditions

    (a) The contractor shall promptly, and before such conditions are 
disturbed, notify the owner in writing of: (1) Subsurface or latent 
physical conditions at the site differing materially from those 
indicated in this contract, or (2) unknown physical conditions at the 
site, of an unusual nature, differing materially from those ordinarily 
encountered and generally recognized as inhering in work of the 
character provided for in this contract. The owner shall promptly 
investigate the conditions. If he finds that such conditions do 
materially differ and cause an increase or decrease in the contractor's 
cost of, or the time required for, performance of any part of the work 
under this contract, whether or not changed as a result of such 
conditions, an equitable adjustment shall be made and the contract 
modified in writing accordingly.
    (b) No claim of the contractor under this clause shall be allowed 
unless the contractor has given the notice required in paragraph (a) of 
this clause, except that the owner may extend the prescribed time.
    (c) No claim by the contractor for an equitable adjustment hereunder 
shall be allowed if asserted after final payment under this contract.

                          4. suspension of work

    (a) The owner may order the contractor in writing to suspend, delay, 
or interrupt all or any part of the work for such period of time as he 
may determine to be appropriate for the convenience of the owner.
    (b) If the performance of all or any part of the work is, for an 
unreasonable period of time, suspended, delayed, or interrupted by an 
act of the owner in administration of this contract, or by his failure 
to act within the time specfied in this contract (or if no time is 
specified, within a reasonable time), an adjustment shall be made for 
any increase in the cost of performance of this contract (excluding 
profit) necessarily caused by such unreasonable suspension, delay, or 
interruption, and the contract modified in writing accordingly. However, 
no adjustment shall be made under this clause for any suspension, delay, 
or interruption to the extent (1) that performance would have been so 
suspended, delayed, or interrupted by any other cause, including the 
fault or negligence of the contractor or (2) for which an equitable 
adjustment is provided for or excluded under any other provision of this 
contract.
    (c) No claim under this clause shall be allowed (1) for any costs 
incurred more than 20 days before the contractor shall have notified the 
owner in writing of the act or failure to act involved (but this 
requirement shall not apply as to a claim resulting from a suspension 
order), and (2) unless the claim, in an amount stated, is asserted in 
writing as soon as practicable after the termination of such suspension, 
delay, or interruption, but not later than the date of final payment 
under the contract.

     5. termination for default; damages for delay; time extensions

    (a) If the contractor refuses or fails to prosecute the work, or any 
separable part of the work, with such diligence as will insure its 
completion within the time specified in this contract, or any extension 
thereof, or fails to complete said work within such time, the owner may, 
by written notice to the contractor, terminate his right to proceed with 
the work or such part of the work as to which there has been delay. In 
such event the owner may take over the work and prosecute the same to 
completion, by contract or otherwise, and may take possession of and use 
in completing the work such materials,

[[Page 508]]

appliances, and plant as may be on the site of the work and necessary 
therefor. Whether or not the contractor's right to proceed with the work 
is terminated, he and his sureties shall be liable for any damage to the 
owner resulting from his refusal or failure to complete the work within 
the specified time.
    (b) If the contract provides for liquidated damages, and if the 
owner terminates the contractor's right to proceed, the resulting damage 
will consist of such liquidated damages until such reasonable time as 
may be required for final completion of the work together with any 
increased costs the owner incurs in completing the work.
    (c) If the contract provides for liquidated damages and if the owner 
does not terminate the contractor's right to proceed, the resulting 
damage will consist of such liquidated damages until the work is 
completed or accepted.
    (d) The contractor's right to proceed shall not be terminated nor 
the contractor charged with resulting damage if:
    (1) The delay in the completion of the work arises from causes other 
than normal weather beyond the control and without the fault or 
negligence of the contractor, including, but not restricted to, acts of 
God, acts of the public enemy, acts of the owner in either its sovereign 
or contractual capacity, acts of another contractor in the performance 
of a contract with the owner, fires, floods, epidemics, quarantine 
restrictions, strikes, freight embargoes, unusually severe weather, or 
delays of subcontractors or suppliers arising from causes other than 
normal weather beyond the control and without the fault or negligence of 
both the contractor and such subcontractors or suppliers; and
    (2) The contractor, within 10 days from the beginning of any such 
delay (unless the owner grants a further period of time before the date 
of final payment under the contract), notifies the owner in writing of 
the causes of delay. The owner shall ascertain the facts and the extent 
of the delay and extend the time for completing the work when, in his 
judgment, the findings of fact justify such an extension. His findings 
of fact shall be final and conclusive on the parties, subject only to 
appeal as the remedies clause of this contract provides.
    (e) If, after notice of termination of the contractor's right to 
proceed under the provisions of this clause, it is determined for any 
reason that the contractor was not in default under this clause, or that 
the delay was excusable under this clause, the rights and obligations of 
the parties shall be the same as if the notice of termination has been 
issued under the clause providing for termination for convenience of the 
owner.
    (f) The rights and remedies of the owner provided in this clause are 
in addition to any other rights and remedies provided by law or under 
this contract.
    (g) As used in paragraph (d)(1) of this clause, the term 
``subcontractors or suppliers'' means subcontractors or suppliers at any 
tier.

                     6. termination for convenience

    (a) The owner may terminate the performance of work under this 
contract in accordance with this clause in whole, or from time to time 
in part, whenever the owner shall determine that such termination is in 
the best interest of the owner. Any such termination shall be effected 
by delivery to the contractor of a notice of termination specifying the 
extent to which performance of work under the contract is terminated, 
and the date upon which such termination becomes effective.
    (b) After receipt of a notice of termination, and except as 
otherwise directed by the owner, the contractor shall:
    (1) Stop work under the contract on the date and to the extent 
specified in the notice of termination;
    (2) Place no further orders or subcontracts for materials, services, 
or facilities except as necessary to complete the portion of the work 
under the contract which is not terminated;
    (3) Terminate all orders and subcontracts to the extent that they 
relate to the performance of work terminated by the notice of 
termination;
    (4) Assign to the owner, in the manner, at the times, and to the 
extent directed by the owner, all of the right, title, and interest of 
the contractor under the orders and subcontracts so terminated. The 
owner shall have the right, in its discretion, to settle or pay any or 
all claims arising out of the termination of such orders and 
subcontracts;
    (5) Settle all outstanding liabilities and all claims arising out of 
such termination of orders and subcontracts, with the approval or 
ratification of the owner to the extent he may require. His approval or 
ratification shall be final for all the purposes of this clause;
    (6) Transfer title to the owner, and deliver in the manner, at the 
times, and to the extent, if any, directed by the owner, (i) the 
fabricated or unfabricated parts, work in process, completed work, 
supplies, and other material produced as a part of, or acquired in 
connection with the performance of, the work terminated by the notice of 
termination, and (ii) the completed or partially completed plans, 
drawings, information, and other property which, if the contract had 
been completed, would have been required to be furnished to the owner;
    (7) Use his best efforts to sell, in the manner, at the times, to 
the extent, and at the price or prices that the owner directs or 
authorizes, any property of the types referred to in paragraph (b)(6) of 
this clause, but the contractor (i) shall not be required to extend

[[Page 509]]

credit to any purchaser, and (ii) may acquire any such property under 
the conditions prescribed and at a price or prices approved by the 
owner. The proceeds of any such transfer or disposition shall be applied 
in reduction of any payments to be made by the owner to the contractor 
under this contract or shall otherwise be credited to the price or cost 
of the work covered by this contract or paid in such other manner as the 
owner may direct;
    (8) Complete performance of such part of the work as shall not have 
been terminated by the notice of termination; and
    (9) Take such action as may be necessary, or as the owner may 
direct, for the protection and preservation of the property related to 
this contract which is in the possession of the contractor and in which 
the owner has or may acquire an interest.
    (c) After receipt of a notice of termination, the contractor shall 
submit to the owner his termination claim, in the form and with the 
certification the owner prescribes. Such claim shall be submitted 
promptly but in no event later than 1 year from the effective date of 
termination, unless one or more extensions in writing are granted by the 
owner upon request of the contractor made in writing within such 1-year 
period or authorized extension. However, if the owner determines that 
the facts justify such action, he may receive and act upon any such 
termination claim at any time after such 1-year period or extension. If 
the contractor fails to submit his termination claim within the time 
allowed, the owner may determine, on the basis of information available 
to him, the amount, if any, due to the contractor because of the 
termination. The owner shall then pay to the contractor the amount so 
determined.
    (d) Subject to the provisions of paragraph (c), the contractor and 
the owner may agree upon the whole or any part of the amount or amounts 
to be paid to the contractor because of the total or partial termination 
of work under this clause. The amount or amounts may include a 
reasonable allowance for profit on work done. However, such agreed 
amount or amounts, exclusive of settlement costs, shall not exceed the 
total contract price as reduced by the amount of payments otherwise made 
and as further reduced by the contract price of work not terminated. The 
contract shall be amended accordingly, and the contractor shall be paid 
the agreed amount. Nothing in paragraph (e) of this clause, prescribing 
the amount to be paid to the contractor in the event of failure of the 
contractor and the owner to agree upon the whole amount to be paid to 
the contractor because of the termination of work under this clause, 
shall be deemed to limit, restrict, or otherwise determine or affect the 
amount or amounts which may be agreed upon to be paid to the contractor 
pursuant to this paragraph (d).
    (e) If the contractor and the owner fail to agree, as paragraph (d) 
of this section 6., provides, on the whole amount to be paid to the 
contractor because of the termination of work under this clause, the 
owner shall determine, on the basis of information available to him, the 
amount, if any, due to the contractor by reason of the termination and 
shall pay to the contractor the amounts determined as follows:
    (1) For all contract work performed before the effective date of the 
notice of termination, the total (without duplication of any items) of--
    (i) The cost of such work;
    (ii) The cost of settling and paying claims arising out of the 
termination of work under subcontracts or orders as paragraph (b)(5) of 
this clause provides. This cost is exclusive of the amounts paid or 
payable on account of supplies or materials delivered or services 
furnished by the subcontractor before the effective date of the notice 
of termination. These amounts shall be included in the cost on account 
of which payment is made under paragraph (1)(i) of this section 6.; and
    (iii) A sum, as profit on paragraph (1)(i) of this section 6., that 
the owner determines to be fair and reasonable. But, if it appears that 
the contractor would have sustained a loss on the entire contract had it 
been completed, no profit shall be included or allowed under this 
paragraph (1)(iii) of this section 6., and an appropriate adjustment 
shall be made reducing the amount of the settlement to reflect the 
indicated rate of loss; and
    (2) The reasonable cost of the preservation and protection of 
property incurred under paragraph (b)(9) of this clause; and any other 
reasonable cost incidental to termination of work under this contract, 
including expense incidental to the determination of the amount due to 
the contractor as the result of the termination of work under this 
contract. The total sum to be paid to the contractor under paragraph 
(e)(1) of this clause shall not exceed the total contract price as 
reduced by the amount of payments otherwise made and as further reduced 
by the contract price of work not terminated. Except for normal 
spoilage, and except to the extent that the owner shall have otherwise 
expressly assumed the risk of loss, there shall be excluded from the 
amounts payable to the contractor under paragraph (1) of this clause 6., 
the fair value, as determined by the owner of property which is 
destroyed, lost, stolen, or damaged, to the extent that it is un-
deliverable to the owner, or to a buyer under paragraph (b)(7) of this 
clause.
    (f) The contractor shall have the right to dispute under the clause 
of this contract entitled ``Remedies,'' from any determination the owner 
makes under paragraph (c) or (e) of this clause. But, if the contractor 
has failed to submit his claim within the time provided in paragraph (c) 
of this clause and

[[Page 510]]

has failed to request extension of such time, he shall have no such 
right of appeal. In any case where the owner has determined the amount 
due under paragraph (c) or (e) of this clause, the owner shall pay to 
the contractor the following: (1) If there is no right of appeal 
hereunder or if no timely appeal has been taken, the amount so 
determined by the owner or (2) if a ``Remedies'' proceeding is 
initiated, the amount finally determined in such ``Remedies'' 
proceeding.
    (g) In arriving at the amount due the contractor under this clause 
there shall be deducted (1) all unliquidated advance or other payments 
on account theretofore made to the contractor, applicable to the 
terminated portion of this contract, (2) any claim which the owner may 
have against the contractor in connection with this contract, and (3) 
the agreed price for, or the proceeds of sale of, any materials, 
supplies, or other things kept by the contractor or sold, under the 
provisions of this clause, and not otherwise recovered by or credited to 
the owner.
    (h) If the termination hereunder be partial, before the settlement 
of the terminated portion of this contract, the contractor may file with 
the owner a request in writing for an equitable adjustment of the price 
or prices specified in the contract relating to the continued portion of 
the contract (the portion not terminated by the notice of termination). 
Such equitable adjustment as may be agreed upon shall be made in the 
price or prices. Nothing contained herein shall limit the right of the 
owner and the contractor to agree upon the amount or amounts to be paid 
to the contractor for the completion of the continued portion of the 
contract when the contract does not contain an established contract 
price for the continued portion.

                               7. remedies

    Unless this contract provides otherwise, all claims, counterclaims, 
disputes and other matters in question between the owner and the 
contractor arising out of or relating to this agreement or its breach 
will be decided by arbitration if the parties mutually agree, or in a 
court of competent jurisdiction within the State in which the owner is 
located.

                           8. labor standards

    The contractor agrees that ``construction'' work (as defined by the 
Secretary of Labor) shall be subject to the following labor standards 
provisions, to the extent applicable:
    (a) Davis-Bacon Act (40 U.S.C. 276a--276a-7);
    (b) Contract Work Hours and Safety Standards Act (40 U.S.C. 327-33);
    (c) Copeland Anti-Kickback Act (18 U.S.C. 874); and
    (d) Executive Order 11246 (equal employment opportunity);

and implementing rules, regulations, and relevant orders of the 
Secretary of Labor or EPA. The contractor further agrees that this 
contract shall include and be subject to the ``Labor Standards 
Provisions for Federally assisted Construction Contracts'' (EPA form 
5720-4) in effect at the time of execution of this agreement.

              9. utilization of small and minority business

    In accordance with EPA policy as expressed in 40 CFR 35.936-7, the 
contractor agrees that small business and minority business enterprises 
shall have the maximum practicable opportunity to participate in the 
performance of EPA grant-assisted contracts and subcontracts.

                      10. audit; access to records

    (a) The contractor shall maintain books, records, documents and 
other evidence directly pertinent to performance on EPA grant work under 
this contract in accordance with generally accepted accounting 
principles and practices consistently applied, and 40 CFR 30.605, 
30.805, and 35.935-7 in effect on the date of execution of this 
contract. The contractor shall also maintain the financial information 
and data used by the contractor in the preparation or support of the 
cost submission required under 40 CFR 35.938-5 in effect on the date of 
execution of this contract for any negotiated contract or change order 
and a copy of the cost summary submitted to the owner. The U.S. 
Environmental Protection Agency, the Comptroller General of the United 
States, the U.S. Department of Labor, owner, and (the State water 
pollution control agency) or any of their authorized representatives 
shall have access to such books, records, documents and other evidence 
for the purpose of inspection, audit and copying. The contractor will 
provide proper facilities for such access and inspection.
    (b) If this contract is a formally advertised, competitively 
awarded, fixed price contract, the contractor agrees to make paragraphs 
(a) through (f) of this clause applicable to all negotiated change 
orders and contract amendments affecting the contract price. In the case 
of all other types of prime contracts, the contractor agrees to include 
paragraphs (a) through (f) of this clause in all his contracts in excess 
of $10,000 and all tier subcontracts in excess of $10,000 and to make 
paragraphs (a) through (f) of this clause applicable to all change 
orders directly related to project performance.

[[Page 511]]

    (c) Audits conducted under this provision shall be in accordance 
with generally accepted auditing standards and established procedures 
and guidelines of the reviewing or audit agency(ies).
    (d) The contractor agrees to the disclosure of all information and 
reports resulting from access to records under paragraphs (a) and (b) of 
this clause, to any of the agencies referred to in paragraph (a) of this 
clause 10., provided that the contractor is afforded the opportunity for 
an audit exit conference, and an opportunity to comment and submit any 
supporting documentation on the pertinent portions of the draft audit 
report and that the final EPA audit report will include written comments 
of reasonable length, if any, of the contractor.
    (e) Records under paragraphs (a) and (b) of this clause 10., shall 
be maintained and made available during performance on EPA grant work 
under this contract and until 3 years from the date of final EPA grant 
payment for the project. In addition, those records which relate to any 
``Dispute'' appeal under an EPA grant agreement, to litigation, to the 
settlement of claims arising out of such performance, or to costs or 
items to which an audit exception has been taken, shall be maintained 
and made available until three years after the date of resolution of 
such appeal, litigation, claim or exception.
    (f) The right of access which this clause confers will generally be 
exercised (with respect to financial records) under (1) negotiated prime 
contracts, (2) negotiated change orders or contract amendments in excess 
of $10,000 affecting the price of any formally advertised, competitively 
awarded, fixed price contract, and (3) subcontracts or purchase orders 
under any contract other than a formally advertised, competitively 
awarded, fixed price contract. However, this right of access will 
generally not be exercised with respect to a prime contract, 
subcontract, or purchase order awarded after effective price 
competition. In any event, such right of access may be exercised under 
any type of contract or subcontract (1) with respect to records 
pertaining directly to contract performance, excluding any financial 
records of the contractor, (2) if there is any indication that fraud, 
gross abuse, or corrupt practices may be involved or (3) if the contract 
is terminated for default or for convenience.

         11. price reduction for defective cost or pricing data

    (This clause is applicable to (1) any negotiated prime contract in 
excess of $100,000; (2) negotiated contract amendments or change orders 
in excess of $100,000 affecting the price of a formally advertised, 
competitively awarded, fixed price contract; or (3) any subcontract or 
purchase order in excess of $100,000 under a prime contract other than a 
formally advertised, competitively awarded, fixed price contract. Change 
orders shall be determined to be in excess of $100,000 in accordance 
with 40 CFR 35.938-5(g). However, this clause is not applicable for 
contracts or subcontracts to the extent that they are awarded on the 
basis of effective price competition.)
    (a) If the owner or EPA determines that any price (including profit) 
negotiated in connection with this contract, or any cost reimbursable 
under this contract, was increased by any significant sums because the 
contractor, or any subcontractor furnished incomplete or inaccurate cost 
or pricing data or data not current as certified in his certification of 
current cost or pricing data (EPA form 5700-41), then such price or cost 
or profit shall be reduced accordingly and the contract shall be 
modified in writing to reflect such reduction.
    (b) Failure to agree on a reduction shall be subject to the Remedies 
clause of this contract.

    (Note: Since the contract is subject to reduction under this clause 
by reason of defective cost or pricing data submitted in connection with 
certain subcontracts, the contractor may wish to include a clause in 
each such subcontract requiring the subcontractor to appropriately 
indemnify the contractor. It is also expected that any subcontractor 
subject to such indemnification will generally require substantially 
similar indemnification for defective cost or pricing data required to 
be submitted by his lower tier subcontractors.)

                  12. covenant against contingent fees

    The contractor warrants that no person or selling agency has been 
employed or retained to solicit or secure this contract upon an 
agreement or understanding for a commission, percentage, brokerage, or 
contingent fee, excepting bona fide employees or bona fide established 
commercial or selling agencies maintained by the contractor for the 
purpose of securing business. For breach or violation of this warranty 
the owner shall have the right to annul this contract without liability 
or in its discretion to deduct from the contract price or consideration, 
or otherwise recover, the full amount of such commission, percentage, 
brokerage, or contingent fee.

                             13. gratuities

    (a) If the owner finds, after notice and hearing, that the 
contractor or any of the contractor's agents or representatives offered 
or gave gratuities (in the form of entertainment, gifts, or otherwise) 
to any official, employee or agent of the owner, of the State, or of EPA 
in an attempt to secure a contract or favorable treatment in the 
awarding, amending, or making any determinations related to the 
performance of this contract,

[[Page 512]]

the owner may, by written notice to the contractor, terminate the right 
of the contractor to proceed under this contract. The owner may also 
pursue other rights and remedies that the law or this contract provides. 
However, the existence of the facts upon which the owner makes such 
findings shall be in issue and may be reviewed in proceedings under the 
remedies clause of this contract.
    (b) In the event this contract is terminated as provided in 
paragraph (a) of this clause, the owner shall be entitled (1) to pursue 
the same remedies against the contractor as it could pursue in the event 
of a breach of the contract by the contractor, and (2) as a penalty in 
addition to any other damages to which it may be entitled by law, to 
exemplary damages in an amount (as determined by the owner) which shall 
be not less than 3 nor more than 10 times the costs the contractor 
incurs in providing any such gratuities to any such officer or employee.

                               14. patents

    If this contract involves research, developmental, experimental, or 
demonstration work, and any discovery or invention arises or is 
developed in the course of or under this contract, such invention or 
discovery shall be subject to the reporting and rights provisions of 
subpart D of 40 CFR part 30, in effect on the date of execution of this 
contract, including Appendix B of part 30. In such case, the contractor 
shall report the discovery or invention to EPA directly or through the 
owner, and shall otherwise comply with the owner's responsibilities in 
accordance with subpart D of 40 CFR part 30. The contractor agrees that 
the disposition of rights to inventions made under this contract shall 
be in accordance with the terms and conditions of Appendix B. The 
contractor shall include appropriate patent provisions to achieve the 
intent of this condition in all subcontracts involving research, 
developmental, experimental, or demonstration work.

                    15. copyrights and rights in data

    The contractor agrees that any plans, drawings, designs, 
specifications, computer programs (which are substantially paid for with 
EPA grant funds), technical reports, operating manuals, and other work 
submitted with a proposal or grant application or which are specified to 
be delivered under this contract or which are developed or produced and 
paid for under this contract (referred to in this clause as ``Subject 
Data'') are subject to the rights in the United States, as set forth in 
subpart D of 40 CFR part 30 and in appendix C to 40 CFR part 30, in 
effect on the date of execution of this contract. These rights include 
the right to use, duplicate and disclose such Subject Data, in whole or 
in part, in any manner for any purpose whatsoever, and to have others do 
so. For purposes of this clause, ``grantee'' as used in appendix C 
refers to the contractor. If the material is copyrightable, the 
contractor may copyright it, as appendix C permits, subject to the 
rights in the Government as set forth in appendix C, but the owner and 
the Federal Government reserve a royalty-free, nonexclusive, and 
irrevocable license to reproduce, publish and use such materials, in 
whole or in part, and to authorize others to do so. The contractor shall 
include provisions appropriate to achieve the intent of this condition 
in all subcontracts expected to produce copyrightable Subject Data.

           16. prohibition against listed violating facilities

    (Applicable only to a contract in excess of $100,000 and when 
otherwise applicable under 40 CFR part 15.)
    (a) The contractor agrees as follows:
    (1) To comply with all the requirements of section 114 of the Clean 
Air Act, as amended (42 U.S.C. 1857, et seq., as amended by Pub. L. 92-
604) and section 308 of the Clean Water Act (33 U.S.C. 1251, as 
amended), respectively, which relate to inspection, monitoring, entry, 
reports, and information, as well as other requirements specified in 
section 114 and section 308 of the Air Act and the Water Act, 
respectively, and all regulations and guidelines issued thereunder 
before the award of this contract.
    (2) That no portion of the work required by this prime contract will 
be performed in a facility listed on the Environmental Protection Agency 
list of violating facilities on the date when this contract was awarded 
unless and until the EPA eliminates the name of such facility or 
facilities from the listing.
    (3) To use his best efforts to comply with clean air and clean water 
standards at the facilities in which the contract is being performed.
    (4) To insert the substance of the provisions of this clause, 
including this paragraph (4), in any nonexempt subcontract.
    (b) The terms used in this clause have the following meanings:
    (1) The term Air Act means the Clean Air Act, as amended (42 U.S.C. 
1857 et seq.).
    (2) The term Water Act means the Clean Water Act, as amended (33 
U.S.C. 1251 et seq.).
    (3) The term Clean Air Standards means any enforceable rules, 
regulations, guidelines, standards, limitations, orders, controls, 
prohibitions, or other requirements which are contained in, issued 
under, or otherwise adopted under the Air Act or Executive Order 11738, 
an applicable implementation plan as described in section 110(d) of the 
Air Act (42 U.S.C. 1857c-5(d)), an approved implementation procedure or 
plan under section 111(c) or section 111(d), or an approved 
implementation procedure under section 112(d) of the Air Act (42 U.S.C. 
1857c-7(d)).

[[Page 513]]

    (4) The term Clean Water Standards means any enforceable limitation, 
control, condition, prohibition, standard, or other requirement which is 
promulgated under the Water Act or contained in a permit issued to a 
discharger by the Environmental Protection Agency or by a State under an 
approved program, as authorized by section 402 of the Water Act (33 
U.S.C. 1342), or by a local government to ensure compliance with 
pretreatment regulations as required by section 307 of the Water Act (33 
U.S.C. 1317).
    (5) The term Compliance means compliance with clean air or water 
standards. Compliance shall also mean compliance with a schedule or plan 
ordered or approved by a court of competent jurisdiction, the 
Envrionmental Protection Agency or an Air or Water Pollution Control 
Agency in accordance with the requirements of the Air Act or Water Act 
and regulations.
    (6) The term Facility means any building, plant, installation, 
structure, mine, vessel, or other floating craft, location, or site of 
operations, owned, leased, or supervised by a contractor or 
subcontractor, to be used in the performance of a contract or 
subcontract. Where a location or site of operations contains or includes 
more than one building, plant, installation, or structure, the entire 
location or site shall be deemed to be a facility except where the 
Director, Office of Federal Activities, Environmental Protection Agency, 
determines that independent facilities are located in one geographical 
area.

                            17. buy american

    In accordance with section 215 of the Clean Water Act, and 
implementing EPA regulations and guidelines, the contractor agrees that 
preference will be given to domestic construction material by the 
contractor, subcontractors, materialmen, and suppliers in the 
performance of this contract.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 37596, June 27, 1979; 
44 FR 39340, July 5, 1979]

   Appendix D--EPA Transition Policy--Existing Consulting Engineering 
                               Agreements

                       a. access to records--audit

    1. Access clause. After June 30, 1975, a construction grant for 
Steps 1, 2 or 3 will not be awarded nor will initiation of Step 1 work 
be approved under 40 CFR 35.917(e) or 35.925-18(a)(3), unless an 
acceptable records and access clause is included in the consulting 
engineering subagreement. The clause contained in appendix C-1 shall be 
used on or after March 1, 1976. The clause required by former PG-53 or 
approved as an alternate thereto may be used for all contracts under 
grants awarded before March 1, 1976.
    2. EPA exercise of right of access to records. Under applicable 
statutory and regulatory provisions, EPA has a broad right of access to 
grantees' consulting engineers' records pertinent to performance of EPA 
project work. The extent to which EPA will exercise this right of access 
will depend upon the nature of the records and upon the type of 
agreement.
    a. In order to determine where EPA shall exercise its right of 
access, engineers' project-related records have been divided into three 
categories:
    (1) Category A: Records that pertain directly to the professional, 
technical and other services performed, excluding any type of financial 
records of the consulting engineer.
    (2) Category B: Financial records of the consulting engineer 
pertaining to the direct costs of professional, technical and other 
services performed, excluding financial records pertaining to profit and 
overhead or other indirect costs.
    (3) Category C: Financial records of the consulting engineer 
excluded from category B.
    b. In all cases, EPA will exercise its right of access to Category A 
records. Also, where there is an indication that fraud, gross abuse, or 
corrupt practices may be involved, EPA will exercise its right of access 
to records in all categories. Otherwise, access to consulting engineers' 
financial records (categories B and C) will depend principally upon the 
method(s) of compensation stipulated in the agreement:
    (1) Agreements based upon a percentage of construction cost. 
Category B and C records will not be audited. However, terms of the 
agreement, including the total amount of compensation, will be evaluated 
for fairness, reasonableness, and consistency with historical and 
advisory guidelines in general use and acceptable locally. These 
guidelines include those in ASCE manual 45 or other analyses or data 
which the contracting parties relied on or used in negotiation of the 
agreement. Such evaluation shall also consider comparable contracts for 
which EPA grants have been awarded.
    (2) Agreements based upon salary cost times a multiplier including 
profit. Category B records will be audited. Category C records will not 
be audited. However, terms of the agreement, including the total amount 
of compensation and the multiplier, will be evaluated for fairness and 
reasonableness and consistency with historical and advisory guidelines 
in general use and acceptable locally. These guidelines include those in 
ASCE manual 45 or other analyses or data which the contracting parties 
relied on or used in negotiation of the agreement. Such evaluation shall 
also consider comparable contracts for which EPA grants have been 
awarded. Items of overhead or other indirect costs will only

[[Page 514]]

be audited to the extent necessary to assure that types of costs found 
both in overhead and reimbursable direct costs, if any, are properly 
charged.
    (3) Per diem agreements. Category B records will be audited. 
Category C records will not be audited. Audit will be performed to the 
extent necessary to determine that hours claimed and classes of 
personnel used were properly supported. The per diem rates will be 
evaluated according to the appropriate portions of paragraphs A.2.b. (1) 
and (2) of this appendix.
    (4) Cost plus a fixed fee (profit). All direct costs, overhead, and 
other indirect costs claimed will be audited to determine that they are 
reasonable, allowable, and properly supported by the consulting 
engineer's records. The amount of fixed fee will not be questioned 
unless the total compensation appears unreasonable when evaluated 
according to paragraphs A.2.b. (1) and (2) of this appendix.
    (5) Fixed price lump sum contracts. Category B and C records will 
not be audited. The contract amount will not be questioned unless the 
total compensation appears unreasonable when evaluated in accordance 
with appropriate portions of paragraphs A.2.b. (1) and (2) of this 
appendix.
    c. If an agreement covers both grant-eligible and ineligible work, 
access to records will be exercised to the extent necessary to allocate 
contract work or costs between work grant-eligible for title II 
construction grant assistance and ineligible work or costs.
    d. Under agreements that use two or more methods of compensation, 
each part of the agreement will be separately audited according to the 
appropriate paragraph of paragraph (b)(2) of this section.
    e. Any audited firm and the grantee will be afforded opportunity for 
an audit exit conference and an opportunity to receive and comment upon 
the pertinent portions of each draft audit report. The final audit 
report will include the written comments, if any, of the audited parties 
in addition to those of the appropriate State and/or Federal 
agency(ies).

                           b. type of contract

    1. The percentage-of-construction-cost type of contract, and the 
multiplier contract, where the multiplier includes profit, may not be 
used for step 1 or step 2 work initiated after June 30, 1975, when the 
step 1 or step 2 grant is awarded after June 30, 1975. (A multiplier 
type of compensation may be used only under acceptable types of 
contracts; see 40 CFR 35.937-1(d).)
    2. Step 1 and step 2 work performed under the percentage-of-
construction-cost type of contract and the multiplier contract, where 
the multiplier includes profit, will be reimbursed and such contracts 
will not be questioned where such costs are reimbursed in conjunction 
with a step 3 grant award within the scope of step 2 work contracted for 
prior to July 1, 1975. However, the current step 2 work will not be 
continued indefinitely for multiple, subsequent step 3 projects in order 
to avoid modifying the consultant agreement.
    3. Where step 2 work is initiated after June 30, 1975, under 
contracts prohibited by paragraphs B.1. and B.2. of this appendix, EPA 
approval may not be given nor grant assistance awarded until the 
contract's terms of compensation have been renegotiated.
    4. Establishing an ``upset'' figure (an upper limit which cannot be 
exceeded without a formal amendment to the agreement) under a multiplier 
contract, where the multiplier includes profit, is not acceptable where 
renegotiation of such contracts is required. In such renegotiation, the 
amount of profit must be specifically identified.
    5. Total allowable contract costs for grant payment for a contract 
based on a percentage-of-construction-cost will be based on the 
following:
    a. Where work for the design step is essentially continuous from 
start of design to bidding, and bid opening for step 3 construction 
occurs within 1 year after substantial completion of step 2 design work, 
the total allowable contract costs for grant payment may not exceed an 
amount based upon the low, responsive, responsible bid for construction.
    b. Where work for the design step is not essentially continuous from 
start of design to bidding, or 1 year or more elapses between 
substantial completion of step 2 design work and bid opening for step 3 
construction, the total allowable contract costs for grant payment may 
not exceed an amount based upon the lower of:
    (1) The consulting engineer's construction cost estimate provided at 
the time of such substantial completion plus an escalation of this 
construction cost estimate of up to 5 percent, but not to exceed the 
consulting engineer's total compensation based on the low, responsive, 
responsible bid for construction, or
    (2) The consulting engineer's construction cost estimate provided at 
the time of such substantial completion plus a consulting engineer's 
compensation esclation not to exceed $50,000, but not to exceed the 
consulting engineer's total compensation based upon the low, responsive, 
responsible bid for construction.
    c. Where the low, responsive, responsible bid for construction would 
have resulted in a higher consulting engineer's total compensation than 
paragraph b. of this clause, provides, the Regional Administrator may 
also consider a reasonable additional compensation for updating the 
plans and specifications, revising cost estimates, or similar services.

[[Page 515]]

    d. The limitations of paragraph B5 apply to all grants awarded under 
subpart E except that--
    (1) If the Regional Administrator had made final payment on a 
project before December 17, 1975, the limitations do not apply; and
    (2) For other projects on which construction for the building and 
erection of a treatment works was initiated prior to December 17, 1975, 
the limitations do not apply to any request for engineering fee 
increases attributable to construction contract awards or change orders 
approved by the grantee prior to December 17, 1975.
    6. Where renegotiation is required under this appendix D, such 
renegotiation is subject to 40 CFR 35.937-1, 35.937-6, 35.937-7, 35.937-
9, and 35.937-10.

                      c. announcement and selection

    The requirements of 40 CFR 35.937-2 through 35.937-4 shall not apply 
to step 1 work where the step 1 grant was awarded or the initiation of 
step 1 work was approved by EPA (under 40 CFR 35.917(e)) before March 1, 
1976, nor to subsequent step 2 and step 3 work in accordance with 40 CFR 
35.937-2(d), if the grantee is satisfied with the qualifications and 
performance of the engineer employed.

              d. required consulting engineering provisions

    Effective March 1, 1976, the subagreement clauses required under 
appendix C-1 must be included in the consulting engineering subagreement 
before grant assistance for step 1, 2 or 3 will be awarded and before 
initiation of step 1 work will be approved under 40 CFR 35.917(e) or 
35.925-18(a) 3.

                             e. enforcement

    1. Refusal by a consulting engineer to insert the required access 
clause, or to allow access to its records, or to renegotiate a 
consulting engineering contract according to the foregoing requirements, 
will render costs incurred under such contract unallowable. Accordingly, 
all such costs will be questioned and disallowed pending compliance with 
this appendix.
    2. Where the Regional Administrator determines that the time 
required to comply with the access to records and type of contract 
provisions of this appendix will unduly delay award of grant assistance, 
he may award the grant assistance conditioned upon compliance with this 
appendix within a specified period of time. In such event, no grant 
payments for the affected engineering work may be made until such 
compliance has been obtained.

      Appendix E--Innovative and Alternative Technology Guidelines

    1. Purpose. These guidelines provide the criteria for identifying 
and evaluating innovative and alternative waste water treatment 
processes and techniques. The Administrator may publish additional 
information.
    2. Authority. These guidelines are provided under section 304(d)(3) 
of the Clean Water Act.
    3. Applicability. These guidelines apply to:
    a. The analysis of innovative and alternative treatment processes 
and techniques under Sec. 35.917-1(d)(8);
    b. Increased grants for eligible treatment works under 
Sec. Sec. 35.930-5 (b) and (c) and 35.908(b)(1);
    c. The funding available for innovative and alternative processes 
and techniques under Sec. 35.915-1(b);
    d. The funding available for alternatives to conventional treatment 
works for small communities under Sec. 35.915-1(e);
    e. The cost-effectiveness preference given innovative and 
alternative processes and techniques in section 7 of appendix A to this 
subpart;
    f. The treatment works that may be given higher priority on State 
project priority lists under Sec. 35.915(a)(1)(iii);
    g. Alternative and innovative treatment systems in connection with 
Federal facilities;
    h. Individual systems authorized by Sec. 35.918, as modified in that 
section to include unconventional or innovative sewers;
    i. The access and reports conditions in Sec. 35.935-20.
    4. Alternative processes and techniques. Alternative waste water 
treatment processes and techniques are proven methods which provide for 
the reclaiming and reuse of water, productively recycle waste water 
constituents or otherwise eliminate the discharge of pollutants, or 
recover energy.
    a. In the case of processes and techniques for the treatment of 
effluents, these include land treatment, aquifer recharge, aquaculture, 
silviculture, and direct reuse for industrial and other nonpotable 
purposes, horticulture and revegetation of disturbed land. Total 
containment ponds and ponds for the treatment and storage of waste water 
prior to land application and other processes necessary to provide 
minimum levels of preapplication treatment are considered to be part of 
alternative technology systems for the purpose of this section.
    b. For sludges, these include land application for horticultural, 
silvicultural, or agricultural purposes (including supplemental 
processing by means such as composting or drying), and revegetation of 
disturbed lands.
    c. Energy recovery facilities include codisposal measures for sludge 
and refuse which

[[Page 516]]

produce energy; anaerobic digestion facilities (Provided, That more than 
90 percent of the methane gas is recovered and used as fuel); and 
equipment which provides for the use of digester gas within the 
treatment works. Self-sustaining incineration may also be included 
provided that the energy recovered and productively used is greater than 
the energy consumed to dewater the sludge to an autogenous state.
    d. Also included are individual and other onsite treatment systems 
with subsurface or other means of effluent disposal and facilities 
constructed for the specific purpose of septage treatment.
    e. The term ``alternative'' as used in these guidelines includes the 
terms ``unconventional'' and ``alternative to conventional'' as used in 
the Act.
    f. The term ``alternative'' does not include collector sewers, 
interceptors, storm or sanitary sewers or the separation thereof; or 
major sewer rehabilitation, except insofar as they are alternatives to 
conventional treatment works for small communities under Sec. 35.915-
1(e) or part of individual systems under Sec. 35.918.
    5. Innovative processes and techniques. Innovative waste water 
treatment processes and techniques are developed methods which have not 
been fully proven under the circumstances of their contemplated use and 
which represent a significant advancement over the state of the art in 
terms of meeting the national goals of cost reduction, increased energy 
conservation or recovery, greater recycling and conservation of water 
resources (including preventing the mixing of pollutants with water), 
reclamation or reuse of effluents and resources (including increased 
productivity of arid lands), improved efficiency and/or reliability, the 
beneficial use of sludges or effluent constituents, better management of 
toxic materials or increased environmental benefits. For the purpose of 
these guidelines, innovative waste water treatment processes and 
techniques are generally limited to new and improved applications of 
those alternative processes and techniques identified in accordance with 
paragraph 4 of these guidelines, including both treatment at centralized 
facilities and individual and other onsite treatment. Treatment 
processes based on the conventional concept of treatment (by means of 
biological or physical/chemical unit processes) and discharge to surface 
waters shall not be considered innovative waste water treatment 
processes and techniques except where it is demonstrated that these 
processes and techniques, as a minimum, meet either the cost-reduction 
or energy-reduction criterion described in section 6 of these 
guidelines. Treatment and discharge systems include primary treatment, 
suspended-growth or fixed-growth biological systems for secondary or 
advance waste water treatment, physical/chemical treatment, 
disinfection, and sludge processing. The term ``innovative'' does not 
include collector sewers, interceptors, storm or sanitary sewers or the 
separation of them, or major sewer rehabilitation, except insofar as 
they meet the criteria in paragraph 6 of these guidelines and are 
alternatives to conventional treatment works for small communities under 
Sec. 35.915-1(e) or part of individual systems under Sec. 35.918.
    6. Criteria for determining innovative processes and techniques. a. 
The Regional Administrator will use the following criteria in 
determining whether a waste water treatment process or technique is 
innovative. The criteria should be read in the context of paragraph 5. 
These criteria do not necessarily preclude a determination by the 
Regional Administrator that a treatment system is innovative because of 
local variations in geographic or climatic conditions which affect 
treatment plant design and operation or because it achieves significant 
public benefits through the advancement of technology which would 
otherwise not be possible. The Regional Administrator should consult 
with EPA headquarters about determinations made in other EPA regions on 
similar processes and techniques.
    b. New or improved applications of alternative waste water treatment 
processes and techniques may be innovative for the purposes of this 
regulation if they meet one or more of the criteria in paragraphs e(1) 
through e(6) of this paragraph. Treatment and discharge systems (i.e., 
systems which are not new or improved applications of alternative waste 
water treatment processes and techniques in accordance with paragraph 4 
of these guidelines) must meet the criteria of either paragraph 6e(1) or 
6e(2), as a minimum, in order to be innovative for the purposes of these 
guidelines.
    c. These six criteria are essentially the same as those used to 
evaluate any project proposed for grant assistance. The principal 
difference is that some newly developed processes and techniques may 
have the potential to provide significant advancements in the state of 
the art with respect to one or more of these criteria. Inherent in the 
concept of advancement of technology is a degree of risk which is 
necessary to initially demonstrate a method on a full, operational scale 
under the circumstances of its contemplated use. This risk, while 
recognized to be a necessary element in the implementation of innovative 
technology, must be minimized by limiting the projects funded to those 
which have been fully developed and shown to be feasible through 
operation on a smaller scale. The risk must also be commensurate with 
the potential benefits (i.e., greater potential benefits must be 
possible in the case of innovative technology projects where greater 
risk is involved).

[[Page 517]]

    d. Increased Federal funding under Sec. 35.908(b) may be made only 
from the reserve in Sec. 35.915-1(b). The Regional Administrator may 
fund a number of projects using the same type of innovative technology 
if he desires to encourage certain innovative processes and techniques 
because the potential benefits are great in comparison to the risks, or 
if operation under differing conditions of climatic, geology, etc., is 
desirable to demonstrate the technology.
    e. The Regional Administrator will use the following criteria to 
determine whether waste water treatment processes and techniques are 
innovative:
    (1) The life cycle cost of the eligible portion of the treatment 
works excluding conventional sewer lines is at least 15 percent less 
than that for the most cost-effective alternative which does not 
incorporate innovative waste water treatment processes and techniques 
(i.e., is no more than 85 percent of the life cycle cost of the most 
cost-effective noninnovative alternative).
    (2) The net primary energy requirements for the operation of the 
eligible portion of the treatment works excluding conventional sewer 
lines are at least 20 percent less than the net energy requirements of 
the least net energy alternative which does not incorporate innovative 
waste water treatment processes and techniques (i.e., the net energy 
requirements are no more than 80 percent of those for the least net 
energy noninnovative alternative). The least net energy noninnovative 
alternative must be one of the alternatives selected for analysis under 
section 5 of appendix A.
    (3) The operational reliability of the treatment works is improved 
in terms of decreased susceptibility to upsets or interference, reduced 
occurrence of inadequately treated discharges and decreased levels of 
operator attention and skills required.
    (4) The treatment works provides for better management of toxic 
materials which would otherwise result in greater environmental hazards.
    (5) The treatment works results in increased environmental benefits 
such as water conservation, more effective land use, improved air 
quality, improved ground water quality, and reduced resource 
requirements for the construction and operation of the works.
    (6) The treatment works provide for new or improved methods of joint 
treatment and management of municipal and industrial wastes that are 
discharged into municipal systems.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 37596, June 27, 1979; 
44 FR 39340, July 5, 1979]



                        Subparts F-G--[Reserved]



Subpart H--Cooperative Agreements for Protecting and Restoring Publicly 
                         Owned Freshwater Lakes

    Authority: Sections 314, 501 and 518, Clean Water Act (86 Stat. 816, 
33 U.S.C. 1251 et seq.).

    Source: 45 FR 7792, Feb. 5, 1980, unless otherwise noted.



Sec. 35.1600  Purpose.

    This subpart supplements the EPA general grant regulations and 
procedures (part 31 of this chapter) and establishes policies and 
procedures for cooperative agreements to assist States and Indian tribes 
treated as States in carrying out approved methods and procedures for 
restoration (including protection against degradation) of publicly owned 
freshwater lakes.

[45 FR 7792, Feb. 5, 1980, as amended at 54 FR 14359, Apr. 11, 1989]



Sec. 35.1603  Summary of clean lakes assistance program.

    (a) Under section 314 of the Clean Water Act, EPA may provide 
financial assistance to States to implement methods and procedures to 
protect and restore publicly owned freshwater lakes. Although 
cooperative agreements may be awarded only to States, these regulations 
allow States, through substate agreements, to delegate some or all of 
the required work to substate agencies.
    (b) Only projects that deal with publicly owned freshwater lakes are 
eligible for assistance. The State must have assigned a priority to 
restore the lake, and the State must certify that the lake project is 
consistent with the State Water Quality Management Plan (Sec. 35.1521) 
developed under the State/EPA Agreement. The State/EPA Agreement is a 
mechanism for EPA Regional Administrators and States to coordinate a 
variety of programs under the Clean Water Act, the Resource Conservation 
and Recovery Act, the Safe Drinking Water Act and other laws 
administered by EPA.
    (c) These regulations provide for Phase 1 and 2 cooperative 
agreements.

[[Page 518]]

The purpose of a Phase 1 cooperative agreement is to allow a State to 
conduct a diagnostic-feasibility study to determine a lake's quality, 
evaluate possible solutions to existing pollution problems, and 
recommend a feasible program to restore or preserve the quality of the 
lake. A Phase 2 cooperative agreement is to be used for implementing 
recommended methods and procedures for controlling pollution entering 
the lake and restoring the lake. EPA award of Phase 1 assistance does 
not obligate EPA to award Phase 2 assistance for that project. 
Additionally, a Phase 1 award is not a prerequisite for receiving a 
Phase 2 award. However, a Phase 2 application for a proposed project 
that was not evaluated under a Phase 1 project shall contain the 
information required by appendix A.
    (d) EPA will evaluate all applications in accordance with the 
application review criteria of Sec. 35.1640-1. The review criteria 
include technical feasibility, public benefit, reasonableness of 
proposed costs, environmental impact, and the State's priority ranking 
of the lake project.
    (e) Before awarding funding assistance, the Regional Administrator 
shall determine that pollution control measures in the lake watershed 
authorized by section 201, included in an approved 208 plan, or required 
by section 402 of the Act are completed or are being implemented 
according to a schedule that is included in an approved plan or 
discharge permit. Clean lakes funds may not be used to control the 
discharge of pollutants from a point source where the cause of pollution 
can be alleviated through a municipal or industrial permit under section 
402 of the Act or through the planning and construction of wastewater 
treatment facilities under section 201 of the Act.



Sec. 35.1605  Definitions.

    The terms used in this subpart have the meanings defined in sections 
502 and 518(h) of the Act. In addition, the following terms shall have 
the meaning set forth below.

[45 FR 7792, Feb. 5, 1980, as amended at 54 FR 14359, Apr. 11, 1989]



Sec. 35.1605-1  The Act.

    The Clean Water Act, as amended (33 U.S.C. 1251 et seq.).



Sec. 35.1605-2  Freshwater lake.

    Any inland pond, reservoir, impoundment, or other similar body of 
water that has recreational value, that exhibits no oceanic and tidal 
influences, and that has a total dissolved solids concentration of less 
than 1 percent.



Sec. 35.1605-3  Publicly owned freshwater lake.

    A freshwater lake that offers public access to the lake through 
publicly owned contiguous land so that any person has the same 
opportunity to enjoy nonconsumptive privileges and benefits of the lake 
as any other person. If user fees are charged for public use and access 
through State or substate operated facilities, the fees must be used for 
maintaining the public access and recreational facilities of this lake 
or other publicly owned freshwater lakes in the State, or for improving 
the quality of these lakes.



Sec. 35.1605-4  Nonpoint source.

    Pollution sources which generally are not controlled by establishing 
effluent limitations under sections 301, 302, and 402 of the Act. 
Nonpoint source pollutants are not traceable to a discrete identifiable 
origin, but generally result from land runoff, precipitation, drainage, 
or seepage.



Sec. 35.1605-5  Eutrophic lake.

    A lake that exhibits any of the following characteristics: (a) 
Excessive biomass accumulations of primary producers; (b) rapid organic 
and/or inorganic sedimentation and shallowing; or (c) seasonal and/or 
diurnal dissolved oxygen deficiencies that may cause obnoxious odors, 
fish kills, or a shift in the composition of aquatic fauna to less 
desirable forms.



Sec. 35.1605-6  Trophic condition.

    A relative description of a lake's biological productivity based on 
the availability of plant nutrients. The range of trophic conditions is 
characterized by the terms of oligotrophic for the least

[[Page 519]]

biologically productive, to eutrophic for the most biologically 
productive.



Sec. 35.1605-7  Desalinization.

    Any mechanical procedure or process where some or all of the salt is 
removed from lake water and the freshwater portion is returned to the 
lake.



Sec. 35.1605-8  Diagnostic-feasibility study.

    A two-part study to determine a lake's current condition and to 
develop possible methods for lake restoration and protection.
    (a) The diagnostic portion of the study includes gathering 
information and data to determine the limnological, morphological, 
demographic, socio-economic, and other pertinent characteristics of the 
lake and its watershed. This information will provide recipients an 
understanding of the quality of the lake, specifying the location and 
loading characteristics of significant sources polluting the lake.
    (b) The feasibility portion of the study includes: (1) Analyzing the 
diagnostic information to define methods and procedures for controlling 
the sources of pollution; (2) determining the most energy and cost 
efficient procedures to improve the quality of the lake for maximum 
public benefit; (3) developing a technical plan and milestone schedule 
for implementing pollution control measures and in-lake restoration 
procedures; and (4) if necessary, conducting pilot scale evaluations.



Sec. 35.1605-9  Indian Tribe set forth at 40 CFR 130.6(d).

    A Tribe meeting the requirements set forth at 40 CFR 130.6(d).

[54 FR 14359, Apr. 11, 1989, as amended at 56 FR 13817, Mar. 23, 1994]



Sec. 35.1610  Eligibility.

    EPA shall award cooperative agreements for restoring publicly owned 
freshwater lakes only to the State agency designated by the State's 
Chief Executive. The award will be for projects which meet the 
requirements of this subchapter.



Sec. 35.1613  Distribution of funds.

    (a) For each fiscal year EPA will notify each Regional Administrator 
of the amount of funds targeted for each Region through annual clean 
lakes program guidance. To assure an equitable distribution of funds the 
targeted amounts will be based on the clean lakes program which States 
identify in their State WQM work programs.
    (b) EPA may set aside up to twenty percent of the annual 
appropriations for Phase 1 projects.



Sec. 35.1615  Substate agreements.

    States may make financial assistance available to substate agencies 
by means of a written interagency agreement transferring project funds 
from the State to those agencies. The agreement shall be developed, 
administered and approved in accordance with the provisions of 40 CFR 
33.240 (Intergovernmental agreements). A State may enter into an 
agreement with a substate agency to perform all or a portion of the work 
under a clean lakes cooperative agreement. Recipients shall submit 
copies of all interagency agreements to the Regional Administrator. If 
the sum involved exceeds $100,000, the agreement shall be approved by 
the Regional Administrator before funds are released by the State to the 
substate agency. The agreement shall incorporate by reference the 
provisions of this subchapter. The agreement shall specify outputs, 
milestone schedule, and the budget required to perform the associated 
work in the same manner as the cooperative agreement between the State 
and EPA.



Sec. 35.1620  Application requirements.

    (a) EPA will process applications in accordance with subpart B of 
part 30 of this subchapter. Applicants for assistance under the clean 
lakes program shall submit EPA form 5700-33 (original with signature and 
two copies) to the appropriate EPA Regional Office (see 40 CFR 30.130).
    (b) Before applying for assistance, applicants should contact the 
appropriate Regional Administrator to determine EPA's current funding 
capability.

[[Page 520]]



Sec. 35.1620-1  Types of assistance.

    EPA will provide assistance in two phases in the clean lakes 
program.
    (a) Phase 1--Diagnostic-feasibility studies. Phase 1 awards of up to 
$100,000 per award (requiring a 30 percent non-Federal share) are 
available to support diagnostic-feasibility studies (see appendix A).
    (b) Phase 2--Implementation. Phase 2 awards (requiring a 50 percent 
non-Federal share) are available to support the implementation of 
pollution control and/or in-lake restoration methods and procedures 
including final engineering design.
    (c) Indian Tribes, eligible Indian Tribe. In either phase, the 
Regional Administrator may increase the 50 and 70 percent maximum 
Federal share for an eligible Indian Tribe based upon application and 
demonstration by the Tribe that it does not have adequate funds 
(including Federal funds authorized by statute to be used for matching 
purposes, tribal funds or in-kind contributions to meet the required 
match). In no case shall the Federal share be greater than 90 percent.

[45 FR 7792, Feb. 5, 1980, as amended at 54 FR 14359, Apr. 11, 1989; 59 
FR 13817, Mar. 23, 1994]



Sec. 35.1620-2  Contents of applications.

    (a) All applications shall contain a written State certification 
that the project is consistent with State Water Quality Management work 
program (see Sec. 35.1513 of this subchapter) and the State 
Comprehensive Outdoor Recreation Plan (if completed). Additionally, the 
State shall indicate the priority ranking for the particular project 
(see Sec. 35.1620-5).
    (b) Phase 1 applications shall contain: (1) A narrative statement 
describing the specific procedures that will be used by the recipient to 
conduct the diagnostic-feasibility study including a description of the 
public participation to be involved (see Sec. 25.11 of this chapter);
    (2) A milestone schedule;
    (3) An itemized cost estimate including a justification for these 
costs;
    (4) A written certification from the appropriate areawide or State 
208 planning agency that the proposed work will not duplicate work 
completed under any 208 planning grant, and that the applicant is 
proposing to use any applicable approved 208 planning in the clean lakes 
project design; and
    (5) For each lake being investigated, the information under 
paragraph (5)(i) of this paragraph (b) and, when available, the 
information under paragraph (5)(ii) of this paragraph (b).
    (i) Mandatory information.
    (A) The legal name of the lake, reservoir, or pond.
    (B) The location of the lake within the State, including the 
latitude and longitude, in degrees, minutes, and seconds of the 
approximate center of the lake.
    (C) A description of the physical characteristics of the lake, 
including its maximum depth (in meters); its mean depth (in meters); its 
surface area (in hectares); its volume (in cubic meters); the presence 
or absence of stratified conditions; and major hydrologic inflows and 
outflows.
    (D) A summary of available chemical and biological data 
demonstrating the past trends and current water quality of the lake.
    (E) A description of the type and amount of public access to the 
lake, and the public benefits that would be derived by implementing 
pollution control and lake restoration procedures.
    (F) A description of any recreational uses of the lake that are 
impaired due to degraded water quality. Indicate the cause of the 
impairment, such as algae, vascular aquatic plants, sediments, or other 
pollutants.
    (G) A description of the local interests and fiscal resources 
committed to restoring the lake.
    (H) A description of the proposed monitoring program to provide the 
information required in appendix A paragraph (a)(10) of this section.
    (ii) Discretionary information. States should submit this 
information when available to assist EPA in reviewing the application.
    (A) A description of the lake watershed in terms of size, land use 
(list each major land use classification as a percentage of the whole), 
and the general topography, including major soil types.
    (B) An identification of the major point source pollution discharges 
in

[[Page 521]]

the watershed. If the sources are currently controlled under the 
National Pollutant Discharge Elimination System (NPDES), include the 
permit numbers.
    (C) An estimate of the percent contribution of total nutrient and 
sediment loading to the lake by the identified point sources.
    (D) An indication of the major nonpoint sources in the watershed. If 
the sources are being controlled describe the control practice(s), 
including best land management practices.
    (E) An indication of the lake restoration measures anticipated, 
including watershed management, and a projection of the net improvement 
in water quality.
    (F) A statement of known or anticipated adverse environmental 
impacts resulting from lake restoration.
    (c) Phase 2 applications shall include: (1) The information 
specified in Appendix A in a diagnostic/feasibility study or its 
equivalent; (2) certification by the appropriate areawide or State 208 
planning agencies that the proposed Phase 2 lake restoration proposal is 
consistent with any approved 208 planning; and (3) copies of all issued 
permits or permit applications (including a summary of the status of 
applications) that are required for the discharge of dredged or fill 
material under section 404 of the Act.



Sec. 35.1620-3  Environmental evaluation.

    Phase 2 applicants shall submit an evaluation of the environmental 
impacts of the proposed project in accordance with the requirements in 
Appendix A of this regulation.



Sec. 35.1620-4  Public participation.

    (a) General. (1) In accordance with this part and part 25 of this 
chapter, the applicant shall provide for, encourage, and assist public 
participation in developing a proposed lake restoration project.
    (2) Public consultation may be coordinated with related activities 
to enhance the economy, the effectiveness, and the timeliness of the 
effort, or to enhance the clarity of the issue. This procedure shall not 
discourage the widest possible participation by the public.
    (b) Phase 1. (1) Phase 1 recipients shall solicit public comment in 
developing, evaluating, and selecting alternatives; in assessing 
potential adverse environmental impacts; and in identifying measures to 
mitigate any adverse impacts that were identified. The recipient shall 
provide information relevant to these decisions, in fact sheet or 
summary form, and distribute them to the public at least 30 days before 
selecting a proposed method of lake restoration. Recipients shall hold a 
formal or informal meeting with the public after all pertinent 
information is distributed, but before a lake restoration method is 
selected. If there is significant public interest in the cooperative 
agreement activity, an advisory group to study the process shall be 
formed in accordance with the requirements of Sec. 25.3(d)(4) of this 
chapter.
    (2) A formal public hearing shall be held if the Phase 1 recipient 
selects a lake restoration method that involves major construction, 
dredging, or significant modifications to the environment, or if the 
recipient or the Regional Administrator determines that a hearing would 
be beneficial.
    (c) Phase 2. (1) A summary of the recipient's response to all public 
comments, along with copies of any written comments, shall be prepared 
and submitted to EPA with a Phase 2 application.
    (2) Where a proposed project has not been studied under a Phase 1 
cooperative agreement, the applicant for Phase 2 assistance shall 
provide an opportunity for public consultation with adequate and timely 
notices before submitting an application to EPA. The public shall be 
given the opportunity to discuss the proposed project, the alternatives, 
and any potentially adverse environmental impacts. A public hearing 
shall be held where the proposed project involves major construction, 
dredging or other significant modification of the environment. The 
applicant shall provide a summary of his responses to all public 
comments and submit the summary, along with copies of any written 
comments, with the application.

[[Page 522]]



Sec. 35.1620-5  State work programs and lake priority lists.

    (a)(1) A State shall submit to the Regional Administrator as part of 
its annual work program (Sec. 35.1513 of this subchapter) a description 
of the activities it will conduct during the Federal fiscal year to 
classify its lakes according to trophic condition (Sec. 35.1630) and to 
set priorities for implementing clean lakes projects within the State. 
The work plan must list in priority order the cooperative agreement 
applications that will be submitted by the State for Phase 1 and Phase 2 
projects during the upcoming fiscal year, along with the rationale used 
to establish project priorities. Each State must also list the 
cooperative agreement applications, with necessary funding, which it 
expects to submit in the following fiscal year. This information will 
assist EPA in targeting resources under Sec. 35.1613.
    (2) A State may petition the Regional Administrator by letter to 
modify the EPA approved priority list established under paragraph (a)(1) 
of this section. This may be done at any time if the State believes 
there is sufficient justification to alter the priority list contained 
in its annual work program, e.g., if a community with a lower priority 
project has sufficient resources available to provide the required 
matching funding while a higher priority project does not, or if new 
data indicates that a lower priority lake will have greater public 
benefit than a higher priority lake.
    (b) Clean lakes restoration priorities should be consistent with the 
Statewide water quality management strategy (see Sec. 35.1511-2 of this 
subchapter). In establishing priorities on particular lake restoration 
projects, States should use as criteria the application review criteria 
(Sec. 35.1640-1) that EPA will use in preparing funding recommendations 
for specific projects. If a State chooses to use different criteria, the 
State should indicate this to the Regional Administrator as part of the 
annual work program.



Sec. 35.1620-6  Intergovernmental review.

    EPA will not award funds under this subpart without review and 
consultation in accordance with the requirements of Executive Order 
12372, as implemented in 40 CFR part 29 of this chapter.

[48 FR 29302, June 24, 1983]



Sec. 35.1630  State lake classification surveys.

    States that wish to participate in the clean lakes program shall 
establish and submit to EPA by January 1, 1982, a classification, 
according to trophic condition, of their publicly owned freshwater lakes 
that are in need of restoration or protection. After December 31, 1981, 
States that have not complied with this requirement will not be eligible 
for Federal financial assistance under this subpart until they complete 
their survey.



Sec. 35.1640  Application review and evaluation.

    EPA will review applications as they are received. EPA may request 
outside review by appropriate experts to assist with technical 
evaluation. Funding decisions will be based on the merit of each 
application in accordance with the application review criteria under 
Sec. 35.1640-1. EPA will consider Phase 1 applications separately from 
Phase 2 applications.



Sec. 35.1640-1  Application review criteria.

    (a) When evaluating applications, EPA will consider information 
supplied by the applicant which address the following criteria:
    (1) The technical feasibility of the project, and where appropriate, 
the estimated improvement in lake water quality.
    (2) The anticipated positive changes that the project would produce 
in the overall lake ecosystem, including the watershed, such as the net 
reduction in sediment, nutrient, and other pollutant loadings.
    (3) The estimated improvement in fish and wildlife habitat and 
associated beneficial effects on specific fish populations of sport and 
commercial species.
    (4) The extent of anticipated benefits to the public. EPA will 
consider such factors as
    (i) The degree, nature and sufficiency of public access to the lake;

[[Page 523]]

    (ii) The size and economic structure of the population residing near 
the lake which would use the improved lake for recreational and other 
purposes;
    (iii) The amount and kind of public transportation available for 
transport of the public to and from the public access points;
    (iv) Whether other relatively clean publicly owned freshwater lakes 
within 80 kilometer radius already adequately serve the population; and
    (v) Whether the restoration would benefit primarily the owners of 
private land adjacent to the lake.
    (5) The degree to which the project considers the ``open space'' 
policies contained in sections 201(f), 201(g), and 208(b)(2)(A) of the 
Act.
    (6) The reasonableness of the proposed costs relative to the 
proposed work, the likelihood that the project will succeed, and the 
potential public benefits.
    (7) The means for controlling adverse environmental impacts which 
would result from the proposed restoration of the lake. EPA will give 
specific attention to the environmental concerns listed in section (c) 
of Appendix A.
    (8) The State priority ranking for a particular project.
    (9) The State's operation and maintenance program to ensure that the 
pollution control measures and/or in-lake restorative techniques 
supported under the project will be continued after the project is 
completed.
    (b) For Phase 1 applications, the review criteria presented in 
paragraph (a) of this section will be modified in relation to the 
smaller amount of technical information and analysis that is available 
in the application. Specifically, under criterion (a)(1), EPA will 
consider a technical assessment of the proposed project approach to meet 
the requirements stated in Appendix A to this regulation. Under 
criterion (a)(4), EPA will consider the degree of public access to the 
lake and the public benefit. Under criterion (a)(7), EPA will consider 
known or anticipated adverse environmental impacts identified in the 
application or that EPA can presume will occur. Criterion (a)(9) will 
not be considered.



Sec. 35.1650  Award.

    (a) Under 40 CFR 30.345, generally 90 days after EPA has received a 
complete application, the application will either be: (1) Approved for 
funding in an amount determined to be appropriate for the project; (2) 
returned to the applicant due to lack of funding; or (3) disapproved. 
The applicant shall be promptly notified in writing by the EPA Regional 
Administrator of any funding decisions.
    (b) Applications that are disapproved can be submitted as new 
applications to EPA if the State resolves the issues identified during 
EPA review.



Sec. 35.1650-1  Project period.

    (a) The project period for Phase 1 projects shall not exceed three 
years.
    (b) The project period for Phase 2 projects shall not exceed four 
years. Implementation of complex projects and projects incorporating 
major construction may have longer project periods if approved by the 
Regional Administrator.



Sec. 35.1650-2  Limitations on awards.

    (a) Before awarding assistance, the Regional Administrator shall 
determine that:
    (1) The applicant has met all of the applicable requirements of 
Sec. 35.1620 and Sec. 35.1630; and
    (2) State programs under section 314 of the Act are part of a State/
EPA Agreement which shall be completed before the project is awarded.
    (b) Before awarding Phase 2 projects, the Regional Administrator 
shall further determine that:
    (1) When a Phase 1 project was awarded, the final report prepared 
under Phase 1 is used by the applicant to apply for Phase 2 assistance. 
The lake restoration plan selected under the Phase 1 project must be 
implemented under a Phase 2 cooperative agreement.
    (2) Pollution control measures in the lake watershed authorized by 
section 201, included in an approved 208 plan, or required by section 
402 of the Act have been completed or are being implemented according to 
a schedule that is included in an approved plan or discharge permit.

[[Page 524]]

    (3) The project does not include costs for controlling point source 
discharges of pollutants where those sources can be alleviated by 
permits issued under section 402 of the Act, or by the planning and 
construction of wastewater treatment facilities under section 201 of the 
Act.
    (4) The State has appropriately considered the ``open space'' policy 
presented in sections 201(f), 201(g)(6), and 208(b)(2)(A) of the Act in 
any wastewater management activities being implemented by them in the 
lake watershed.
    (5)(i) The project does not include costs for harvesting aquatic 
vegetation, or for chemical treatment to alleviate temporarily the 
symptoms of eutrophication, or for operating and maintaining lake 
aeration devices, or for providing similar palliative methods and 
procedures, unless these procedures are the most energy efficient or 
cost effective lake restorative method.
    (ii) Palliative approaches can be supported only where pollution in 
the lake watershed has been controlled to the greatest practicable 
extent, and where such methods and procedures are a necessary part of a 
project during the project period. EPA will determine the eligibility of 
such a project, based on the applicant's justification for the proposed 
restoration, the estimated time period for improved lake water quality, 
and public benefits associated with the restoration.
    (6) The project does not include costs for desalinization procedures 
for naturally saline lakes.
    (7) The project does not include costs for purchasing or long term 
leasing of land used solely to provide public access to a lake.
    (8) The project does not include costs resulting from litigation 
against the recipient by EPA.
    (9) The project does not include costs for measures to mitigate 
adverse environmental impacts that are not identified in the approved 
project scope of work. (EPA may allow additional costs for mitigation 
after it has reevaluated the cost-effectiveness of the selected 
alternative and has approved a request for an increase from the 
recipient.)



Sec. 35.1650-3  Conditions on award.

    (a) All awards. (1) All assistance awarded under the Clean Lakes 
program is subject to the EPA General Grant conditions (subpart C and 
appendix A of part 30 of this chapter).
    (2) For each clean lakes project the State agrees to pay or arrange 
the payment of the non-Federal share of the project costs.
    (b) Phase 1. Phase 1 projects are subject to the following 
conditions:
    (1) The recipient must receive EPA project officer approval on any 
changes to satisfy the requirements of paragraph (a)(10) of appendix A 
before undertaking any other work under the grant.
    (2)(i) Before selecting the best alternative for controlling 
pollution and improving the lake, as required in paragraph (b)(1) of 
appendix A of this regulation, and before undertaking any other work 
stated under paragraph (b) of appendix A, the recipient shall submit an 
interim report to the project officer. The interim report must include a 
discussion of the various available alternatives and a technical 
justification for the alternative that the recipient will probably 
choose. The report must include a summary of the public involvement and 
the comments that occurred during the development of the alternatives.
    (ii) The recipient must obtain EPA project officer approval of the 
selected alternative before conducting additional work under the 
project.
    (c) Phase 2. Phase 2 projects are subject to the following 
conditions:
    (1)(i) The State shall monitor the project to provide data necessary 
to evaluate the efficiency of the project as jointly agreed to and 
approved by the EPA project officer. The monitoring program described in 
paragraph (b)(3) of appendix A of this regulation as well as any 
specific measurements that would be necessary to assess specific aspects 
of the project, must be considered during the development of a 
monitoring program and schedule. The project recipient shall receive the 
approval of the EPA project officer for a monitoring program and 
schedule to satisfy the requirements of appendix A paragraph (b)(3) 
before undertaking any other work under the project.

[[Page 525]]

    (ii) Phase 2 projects shall be monitored for at least one year after 
construction or pollution control practices are completed.
    (2) The State shall manage and maintain the project so that all 
pollution control measures supported under the project will be continued 
during the project period at the same level of efficiency as when they 
were implemented. The State will provide reports regarding project 
maintenance as required in the cooperative agreement.
    (3) The State shall upgrade its water quality standards to reflect a 
higher water quality use classification if the higher water quality use 
was achieved as a result of the project (see 40 CFR 35.1550(c)(2)).
    (4) If an approved project allows purchases of equipment for lake 
maintenance, such as weed harvesters, aeration equipment, and laboratory 
equipment, the State shall maintain and operate the equipment according 
to an approved lake maintenance plan for a period specified in the 
cooperative agreement. In no case shall that period be for less than the 
time it takes to completely amortize the equipment.
    (5) If primary adverse environmental impacts result from 
implementing approved lake restoration or protection procedures, the 
State shall include measures to mitigate these adverse impacts at part 
of the work under the project.
    (6) If adverse impacts could result to unrecorded archeological 
sites, the State shall stop work or modify work plans to protect these 
sites in accordance with the National Historic Preservation Act. (EPA 
may allow additional costs for ensuring proper protection of unrecorded 
archeological sites in the project area after reevaluating the cost 
effectiveness of the procedures and approving a request for a cost 
increase from the recipient.)
    (7) If a project involves construction or dredging that requires a 
section 404 permit for the discharge of dredged or fill material, the 
recipient shall obtain the necessary section 404 permits before 
performing any dredge or fill work.



Sec. 35.1650-4  Payment.

    (a) Under Sec. 30.615 of this chapter, EPA generally will make 
payments through letter of credit. However, the Regional Administrator 
may place any recipient on advance payment or on cost reimbursement, as 
necessary.
    (b) Phase 2 projects involving construction of facilities or 
dredging and filling activities shall be paid by reimbursement.



Sec. 35.1650-5  Allowable costs.

    (a) The State will be paid under Sec. 35.1650-4 for the Federal 
share of all necessary costs within the scope of the approved project 
and determined to be allowable under 40 CFR 30.705, the provisions of 
this subpart, and the cooperative agreement.
    (b) Costs for restoring lakes used solely for drinking water 
supplies are not allowable under the Clean Lakes Program.



Sec. 35.1650-6  Reports.

    (a) States with Phase 1 projects shall submit semi-annual progress 
reports (original and one copy) to the EPA project officer within 30 
days after the end of every other standard quarter. Standard quarters 
end on March 31, June 30, September 30, and December 31. These reports 
shall include the following:
    (1) Work progress relative to the milestone schedule, and 
difficulties encountered during the previous six months.
    (2) A brief discussion of the project findings appropriate to the 
work conducted during the previous six months.
    (3) A report of expenditures in the past six months and those 
anticipated in the next six months.
    (b) Phase 2. States with Phase 2 projects shall submit progress 
reports (original and one copy) according to the schedule established in 
the cooperative agreement. The frequency of Phase 2 project progress 
reports shall be determined by the size and complexity of the project, 
and shall be required no more frequently than quarterly. The Phase 2 
progress report shall contain all of the information required for Phase 
1 progress reports indicated in paragraph (a) of this section. This 
report also must include water quality

[[Page 526]]

monitoring data and a discussion of the changes in water quality which 
appear to have resulted from the lake restoration activities implemented 
during the reporting period.
    (c) Final Report. States shall prepare a final report for all grants 
in accordance with Sec. 30.635-2 of this subchapter. Phase 1 reports 
shall be organized according to the outline of information requirements 
stated in appendix A. All water quality data obtained under the grant 
shall be submitted in the final report. Phase 2 reports shall conform to 
the format presented in the EPA manual on ``Scientific and Technical 
Publications,'' May 14, 1974, as revised or updated. The States shall 
submit the report within 90 days after the project is completed.
    (d) Financial Status Report. Within 90 days after the end of each 
budget period, the grantee shall submit to the Regional Administrator an 
annual report of all expenditures (Federal and non-Federal) which 
accrued during the budget period. Beginning in the second quarter of any 
succeeding budget period, payments may be withheld under Sec. 30.615-3 
of this chapter until this report is received.

    Appendix A--Requirements for Diagnostic-Feasibility Studies and 
                        Environmental Evaluations

    Phase 1 clean lakes projects shall include in their scope of work at 
least the following requirements, preferably in the order presented and 
under appropriate subheadings. The information required by paragraph 
(a)(10) and the monitoring procedures stated in paragraph (b)(3) of this 
Appendix may be modified to conform to specific project requirements to 
reduce project costs without jeopardizing adequacy of technical 
information or the integrity of the project. All modifications must be 
approved by the EPA project officer as specified in Sec. Sec. 35.1650-
3(b)(1) and 35.1650-3(c)(1).
    (a) A diagnostic study consisting of:
    (1) An identification of the lake to be restored or studied, 
including the name, the State in which it is located, the location 
within the State, the general hydrologic relationship to associated 
upstream and downstream waters and the approved State water quality 
standards for the lake.
    (2) A geological description of the drainage basin including soil 
types and soil loss to stream courses that are tributary to the lake.
    (3) A description of the public access to the lake including the 
amount and type of public transportation to the access points.
    (4) A description of the size and economic structure of the 
population residing near the lake which would use the improved lake for 
recreation and other purposes.
    (5) A summary of historical lake uses, including recreational uses 
up to the present time, and how these uses may have changed because of 
water quality degradation.
    (6) An explanation, if a particular segment of the lake user 
population is or will be more adversely impacted by lake degradation.
    (7) A statement regarding the water use of the lake compared to 
other lakes within a 80 kilometer radius.
    (8) An itemized inventory of known point source pollution discharges 
affecting or which have affected lake water quality over the past 5 
years, and the abatement actions for these discharges that have been 
taken, or are in progress. If corrective action for the pollution 
sources is contemplated in the future, the time period should be 
specified.
    (9) A description of the land uses in the lake watershed, listing 
each land use classification as a percentage of the whole and discussing 
the amount of nonpoint pollutant loading produced by each category.
    (10) A discussion and analysis of historical baseline limnological 
data and one year of current limnological data. The monitoring schedule 
presented in paragraph (b)(3) of Appendix A must be followed in 
obtaining the one year of current limnological data. This presentation 
shall include the present trophic condition of the lake as well as its 
surface area (hectares), maximum depth (meters), average depth (meters), 
hydraulic residence time, the area of the watershed draining to the lake 
(hectares), and the physical, chemical, and biological quality of the 
lake and important lake tributary waters. Bathymetric maps should be 
provided. If dredging is expected to be included in the restoration 
activities, representative bottom sediment core samples shall be 
collected and analyzed using methods approved by the EPA project officer 
for phosphorus, nitrogen, heavy metals, other chemicals appropriate to 
State water quality standards, and persistent synthetic organic 
chemicals where appropriate. Further, the elutriate must be subjected to 
test procedures developed by the U.S. Army Corps of Engineers and 
analyzed for the same constituents. An assessment of the phosphorus (and 
nitrogen when it is the limiting lake nutrient) inflows and outflows 
associated with the lake and a hydraulic budget including ground water 
flow must be included. Vertical temperature and dissolved oxygen data 
must be included for the lake to determine if the hypolimnion becomes 
anaerobic and, if so, for how long and over what extent of the bottom. 
Total and soluble reactive

[[Page 527]]

phosphorus (P); and nitrite, nitrate, ammonia and organic nitrogen (N) 
concentrations must be determined for the lake. Chlorophyll a values 
should be measured for the upper mixing zone. Representative 
alkalinities should be determined. Algal assay bottle test data or total 
N to total P ratios should be used to define the growth limiting 
nutrient. The extent of algal blooms, and the predominant algal genera 
must be discussed. Algal biomass should be determined through algal 
genera identification, cell density counts (numbers of cells per 
milliliter) and converted to cell volume based on factors derived from 
direct measurements; and reported in biomass of each major genus 
identified. Secchi disk depth and suspended solids should be measured 
and reported. The portion of the shoreline and bottom that is impacted 
by vascular plants (submersed, floating, or emersed higher aquatic 
vegetation) must be estimated, specifically the lake surface area 
between 0 and the 10 meter depth contour or twice the Secchi disk 
transparency depth, whichever is less, and that estimate should include 
an identification of the predominant species. Where a lake is subject to 
significant public contact use or is fished for consumptive purposes, 
monitoring for public health reasons should be part of the monitoring 
program. Standard bacteriological analyses and fish flesh analyses for 
organic and heavy metal contamination should be included.
    (11) An identification and discussion of the biological resources in 
the lake, such as fish population, and a discussion of the major known 
ecological relationships.
    (b) A feasibility study consisting of:
    (1) An identification and discussion of the alternatives considered 
for pollution control or lake restoration and an identification and 
justification of the selected alternative. This should include a 
discussion of expected water quality improvement, technical feasibility, 
and estimated costs of each alternative. The discussion of each feasible 
alternative and the selected lake restoration procedure must include 
detailed descriptions specifying exactly what activities would be 
undertaken under each, showing how and where these procedures would be 
implemented, illustrating the engineering specifications that would be 
followed including preliminary engineering drawings to show in detail 
the construction aspects of the project, and presenting a quantitative 
analysis of the pollution control effectiveness and the lake water 
quality improvement that is anticipated.
    (2) A discussion of the particular benefits expected to result from 
implementing the project, including new public water uses that may 
result from the enhanced water quality.
    (3) A Phase 2 monitoring program indicating the water quality 
sampling schedule. A limited monitoring program must be maintained 
during project implementation, particularly during construction phases 
or in-lake treatment, to provide sufficient data that will allow the 
State and the EPA project officer to redirect the project if necessary, 
to ensure desired objectives are achieved. During pre-project, 
implementation, and post-project monitoring activities, a single in-lake 
site should be sampled monthly during the months of September through 
April and biweekly during May through August. This site must be located 
in an area that best represents the limnological properties of the lake, 
preferably the deepest point in the lake. Additional sampling sites may 
be warranted in cases where lake basin morphometry creates distinctly 
different hydrologic and limnologic sub-basins; or where major lake 
tributaries adversely affect lake water quality. The sampling schedule 
may be shifted according to seasonal differences at various latitudes. 
The biweekly samples must be scheduled to coincide with the period of 
elevated biological activity. If possible, a set of samples should be 
collected immediately following spring turnover of the lake. Samples 
must be collected between 0800 and 1600 hours of each sampling day 
unless diel studies are part of the monitoring program. Samples must be 
collected between one-half meter below the surface and one-half meter 
off the bottom, and must be collected at intervals of every one and one-
half meters, or at six equal depth intervals, whichever number of 
samples is less. Collection and analyses of all samples must be 
conducted according to EPA approved methods. All of the samples 
collected must be analyzed for total and soluble reactive phosphorus; 
nitrite, nitrate, ammonia, and organic nitrogen; pH; temperature; and 
dissolved oxygen. Representative alkalinities should be determined. 
Samples collected in the upper mixing zone must be analyzed for 
chlorophyll a. Algal biomass in the upper mixing zone should be 
determined through algal genera identification, cell density counts 
(number of cells per milliliter) and converted to cell volume based on 
factors derived from direct measurements; and reported in terms of 
biomass of each major genera identified. Secchi disk depth and suspended 
solids must be measured at each sampling period. The surface area of the 
lake covered by macrophytes between 0 and the 10 meter depth contour or 
twice the Secchi disk transparency depth, whichever is less, must be 
reported. The monitoring program for each clean lakes project must 
include all the required information mentioned above, in addition to any 
specific measurements that are found to be necessary to assess certain 
aspects of the project. Based on the information supplied by the Phase 2 
project applicant and the technical evaluation of the proposal, a 
detailed monitoring program for Phase 2 will be established for each 
approved

[[Page 528]]

project and will be a condition of the cooperative agreement. Phase 2 
projects will be monitored for at least one year after construction or 
pollution control practices are completed to evaluate project 
effectiveness.
    (4) A proposed milestone work schedule for completing the project 
with a proposed budget and a payment schedule that is related to the 
milestone.
    (5) A detailed description of how non-Federal funds will be obtained 
for the proposed project.
    (6) A description of the relationship of the proposed project to 
pollution control programs such as the section 201 construction grants 
program, the section 208 areawide wastewater management program, the 
Department of Agriculture Soil Conservation Service and Agriculture 
Stabilization and Conservation Service programs, the Department of 
Housing and Urban Development block grant program, the Department of 
Interior Heritage Conservation and Recreation Service programs and any 
other local, State, regional and Federal programs that may be related to 
the proposed project. Copies of any pertinent correspondence, contracts, 
grant applications and permits associated with these programs should be 
provided to the EPA project officer.
    (7) A summary of public participation in developing and assessing 
the proposed project which is in compliance with part 25 of this 
chapter. The summary shall describe the matters brought before the 
public, the measures taken by the reporting agency to meet its 
responsibilities under part 25 and related provisions elsewhere in this 
chapter, the public response, and the agency's response to significant 
comments. Section 25.8 responsiveness summaries may be used to meet 
appropriate portions of these requirements to avoid duplication.
    (8) A description of the operation and maintenance plan that the 
State will follow, including the time frame over which this plan will be 
operated, to ensure that the pollution controls implemented during the 
project are continued after the project is completed.
    (9) Copies of all permits or pending permit applications (including 
the status of such applications) necessary to satisfy the requirements 
of section 404 of the Act. If the approved project includes dredging 
activities or other activities requiring permits, the State must obtain 
from the U.S. Army Corps of Engineers or other agencies the permits 
required for the discharge of dredged or fill material under section 404 
of the Act or other Federal, State or local requirements. Should 
additional information be required to obtain these permits, the State 
shall provide it. Copies of section 404 permit applications and any 
associated correspondence must be provide to the EPA project officer at 
the time they are submitted to the U.S. Army Corps of Engineers. After 
reviewing the 404 permit application, the project officer may provide 
recommendations for appropriate controls and treatment of supernatant 
derived from dredged material disposal sites to ensure the maximum 
effectiveness of lake restoration procedures.
    (c) States shall complete and submit an environmental evaluation 
which considers the questions listed below. In many cases the questions 
cannot be satisfactorily answered with a mere ``Yes'' or ``No''. States 
are encouraged to address other considerations which they believe apply 
to their project.
    (1) Will the proposed project displace any people?
    (2) Will the proposed project deface existing residences or 
residential areas? What mitigative actions such as landscaping, 
screening, or buffer zones have been considered? Are they included?
    (3) Will the proposed project be likely to lead to a change in 
established land use patterns, such as increased development pressure 
near the lake? To what extent and how will this change be controlled 
through land use planning, zoning, or through other methods?
    (4) Will the proposed project adversly affect a significant amount 
of prime agricultural land or agricultural operations on such land?
    (5) Will the proposed project result in a significant adverse effect 
on parkland, other public land, or lands of recognized scenic value?
    (6) Has the State Historical Society or State Historical 
Preservation Officer been contacted? Has he responded, and if so, what 
was the nature of that response? Will the proposed project result in a 
significant adversely effect on lands or structures of historic, 
architectural, archaeological or cultural value?
    (7) Will the proposed project lead to a significant long-range 
increase in energy demands?
    (8) Will the proposed project result in significant and long range 
adverse changes in ambient air quality or noise levels? Short term?
    (9) If the proposed project involves the use of in-lake chemical 
treatment, what long and short term adverse effects can be expected from 
that treatment? How will the project recipient mitigate these effects?
    (10) Does the proposal contain all the information that EPA requires 
in order to determine whether the project complies with Executive Order 
11988 on floodplains? Is the proposed project located in a floodplain? 
If so, will the project involve construction of structures in the 
floodplain? What steps will be taken to reduce the possible effects of 
flood damage to the project?

[[Page 529]]

    (11) If the project involves physically modifying the lake shore or 
its bed or its watershed, by dredging, for example, what steps will be 
taken to minimize any immediate and long term adverse effects of such 
activities? When dredging is employed, where will the dredged material 
be deposited, what can be expected and what measures will the recipient 
employ to minimize any significant adverse impacts from its deposition?
    (12) Does the project proposal contain all information that EPA 
requires in order to determine whether the project complies with 
Executive Order 11990 on wetlands? Will the proposed project have a 
significant adverse effect on fish and wildlife, or on wetlands or any 
other wildife habitat, especially those of endangered species? How 
significant is this impact in relation to the local or regional critical 
habitat needs? Have actions to mitigate habitat destruction been 
incorporated into the project? Has the recipient properly consulted with 
appropriate State and Federal fish, game and wildlife agencies and with 
the U.S. Fish and Wildlife Service? What were their replies?
    (13) Describe any feasible alternatives to the proposed project in 
terms of environmental impacts, commitment of resources, public interest 
and costs and why they were not proposed.
    (14) Describe other measures not discussed previously that are 
necessary to mitigate adverse environmental impacts resulting from the 
implementation of the proposed project.



          Subpart I--Grants for Construction of Treatment Works

    Authority: Secs. 101(e), 109(b), 201 through 205, 207, 208(d), 210 
through 212, 215 through 219, 304(d)(3), 313, 501, 502, 511 and 516(b) 
of the Clean Water Act, as amended, 33 U.S.C. 1251 et seq.

    Source: 49 FR 6234, Feb. 17, 1984, unless otherwise noted.



Sec. 35.2000  Purpose and policy.

    (a) The primary purpose of Federal grant assistance available under 
this subpart is to assist municipalities in meeting enforceable 
requirements of the Clean Water Act, particularly, applicable National 
Pollutant Discharge Elimination System (NPDES) permit requirements.
    (b) This subpart supplements EPA's Uniform Relocation and Real 
Property Acquisition Policies Act regulation (part 4 of this chapter), 
its National Environmental Policy Act (NEPA) regulation (part 6 of this 
chapter), its public participation regulation (part 25 of this chapter), 
its intergovernmental review regulation (part 29 of this chapter), its 
general grant regulation (part 30 of this chapter), its debarment 
regulation (part 32 of this chapter), and its procurement under 
assistance regulation (part 33 of this chapter), and establishes 
requirements for Federal grant assistance for the building of wastewater 
treatment works. EPA may also find it necessary to publish other 
requirements applicable to the construction grants program in response 
to Congressional action and executive orders.
    (c) EPA's policy is to delegate administration of the construction 
grants program on individual projects to State agencies to the maximum 
extent possible (see subpart F). Throughout this subpart we have used 
the term Regional Administrator. To the extent that the Regional 
Administrator delegates review of projects for compliance with the 
requirements of this subpart to a State agency under a delegation 
agreement (Sec. 35.1030), the term Regional Administrator may be read 
State agency. This paragraph does not affect the rights of citizens, 
applicants or grantees provided in subpart F.
    (d) In accordance with the Federal Grant and Cooperative Agreement 
Act (Pub. L. 95-224) EPA will, when substantial Federal involvement is 
anticipated, award assistance under cooperative agreements. Throughout 
this subpart we have used the terms grant and grantee but those terms 
may be read cooperative agreement and recipient if appropriate.
    (e) From time to time EPA publishes technical and guidance materials 
on various topics relevant to the construction grants program. Grantees 
may find this information useful in meeting requirements in this 
subpart. These publications, including the MCD and FRD series, may be 
ordered from: EPA, 401 M St. SW., room 1115 ET, WH 547, Washington, DC 
20460. In order to expedite processing of requests, persons wishing to 
obtain these publications should request a copy of EPA form 7500-21 (the 
order form listing all available publications), from EPA Headquarters, 
Municipal Construction Division (WH-547) or from any EPA Regional 
Office.

[[Page 530]]



Sec. 35.2005  Definitions.

    (a) Words and terms not defined below shall have the meaning given 
to them in 40 CFR parts 30 and 33.
    (b) As used in this subpart, the following words and terms mean:
    (1) Act. The Clean Water Act (33 U.S.C. 1251 et seq., as amended).
    (2) Ad valorem tax. A tax based upon the value of real property.
    (3) Allowance. An amount based on a percentage of the project's 
allowable building cost, computed in accordance with appendix B.
    (4) Alternative technology. Proven wastewater treatment processes 
and techniques which provide for the reclaiming and reuse of water, 
productively recycle wastewater constitutuents or otherwise eliminate 
the discharge of pollutants, or recover energy. Specifically, 
alternative technolgy includes land application of effluent and sludge; 
aquifer recharge; aquaculture; direct reuse (non-potable); horticulture; 
revegetation of disturbed land; containment ponds; sludge composting and 
drying prior to land application; self-sustaining incineration; and 
methane recovery.
    (5) Alternative to conventional treatment works for a small 
community. For purposes of Sec. Sec. 35.2020 and 35.2032, alternative 
technology used by treatment works in small communities include 
alternative technologies defined in paragraph (b)(4), as well as, 
individual and onsite systems; small diameter gravity, pressure or 
vacuum sewers conveying treated or partially treated wastewater. These 
systems can also include small diameter gravity sewers carrying raw 
wastewater to cluster systems.
    (6) Architectural or engineering services. Consultation, 
investigations, reports, or services for design-type projects within the 
scope of the practice of architecture or professional engineering as 
defined by the laws of the State or territory in which the grantee is 
located.
    (7) Best Practicable Waste Treatment Technology (BPWTT). The cost-
effective technology that can treat wastewater, combined sewer overflows 
and nonexcessive infiltration and inflow in publicly owned or individual 
wastewater treatment works, to meet the applicable provisions of:
    (i) 40 CFR part 133--secondary treatment of wastewater;
    (ii) 40 CFR part 125, subpart G--marine discharge waivers;
    (iii) 40 CFR 122.44(d)--more stringent water quality standards and 
State standards; or
    (iv) 41 FR 6190 (February 11, 1976)--Alternative Waste Management 
Techniques for Best Practicable Waste Treatment (treatment and 
discharge, land application techniques and utilization practices, and 
reuse).
    (8) Building. The erection, acquisition, alteration, remodeling, 
improvement or extension of treatment works.
    (9) Building completion. The date when all but minor components of a 
project have been built, all equipment is operational and the project is 
capable of functioning as designed.
    (10) Collector sewer. The common lateral sewers, within a publicly 
owned treatment system, which are primarily installed to receive 
wastewaters directly from facilities which convey wastewater from 
individual systems, or from private property, and which include service 
``Y'' connections designed for connection with those facilities 
including:
    (i) Crossover sewers connecting more than one property on one side 
of a major street, road, or highway to a lateral sewer on the other side 
when more cost effective than parallel sewers; and
    (ii) Except as provided in paragraph (b)(10)(iii) of this section, 
pumping units and pressurized lines serving individual structures or 
groups of structures when such units are cost effective and are owned 
and maintained by the grantee.
    (iii) This definition excludes other facilities which convey 
wastewater from individual structures, from private property to the 
public lateral sewer, or its equivalent and also excludes facilities 
associated with alternatives to conventional treatment works in small 
communities.
    (11) Combined sewer. A sewer that is designed as a sanitary sewer 
and a storm sewer.

[[Page 531]]

    (12) Complete waste treatment system. A complete waste treatment 
system consists of all the treatment works necessary to meet the 
requirements of title III of the Act, involving: (i) The transport of 
wastewater from individual homes or buildings to a plant or facility 
where treatment of the wastewater is accomplished; (ii) the treatment of 
the wastewater to remove pollutants; and (iii) the ultimate disposal, 
including recycling or reuse, of the treated wastewater and residues 
which result from the treatment process.
    (13) Construction. Any one or more of the following: Preliminary 
planning to determine the feasibility of treatment works, engineering, 
architectural, legal, fiscal, or economic investigations or studies, 
surveys, designs, plans, working drawings, specifications, procedures, 
field testing of innovative or alternative wastewater treatment 
processes and techniques (excluding operation and maintenance) meeting 
guidelines promulgated under section 304(d)(3) of the Act, or other 
necessary actions, erection, building, acquisition, alteration, 
remodeling, improvement, or extension of treatment works, or the 
inspection or supervision of any of the foregoing items.
    (14) Conventional technology. Wastewater treatment processes and 
techniques involving the treatment of wastewater at a centralized 
treatment plant by means of biological or physical/chemical unit 
processes followed by direct point source discharge to surface waters.
    (15) Enforceable requirements of the Act. Those conditions or 
limitations of section 402 or 404 permits which, if violated, could 
result in the issuance of a compliance order or initiation of a civil or 
criminal action under section 309 of the Act or applicable State laws. 
If a permit has not been issued, the term shall include any requirement 
which, in the Regional Administrator's judgment, would be included in 
the permit when issued. Where no permit applies, the term shall include 
any requirement which the Regional Administrator determines is necessary 
for the best practicable waste treatment technology to meet applicable 
criteria.
    (16) Excessive infiltration/inflow. The quantities of infiltration/
inflow which can be economically eliminated from a sewer system as 
determined in a cost-effectiveness analysis that compares the costs for 
correcting the infiltration/inflow conditions to the total costs for 
transportation and treatment of the infiltration/inflow. (See 
Sec. Sec. 35.2005(b) (28) and (29) and 35.2120.)
    (17) Field testing. Practical and generally small-scale testing of 
innovative or alternative technologies directed to verifying performance 
and/or refining design parameters not sufficiently tested to resolve 
technical uncertainties which prevent the funding of a promising 
improvement in innovative or alternative treatment technology.
    (18) Individual systems. Privately owned alternative wastewater 
treatment works (including dual waterless/gray water systems) serving 
one or more principal residences, or small commercial establishments. 
Normally these are onsite systems with localized treatment and disposal 
of wastewater, but may be systems utilizing small diameter gravity, 
pressure or vacuum sewers conveying treated or partially treated 
wastewater. These systems can also include small diameter gravity sewers 
carrying raw wastewater to cluster systems.
    (19) Industrial user. Any nongovernmental, nonresidential user of a 
publicly owned treatment works which is identified in the Standard 
Industrial Classification Manual, 1972, Office of Management and Budget, 
as amended and supplemented, under one of the following divisions:

Division A. Agriculture, Forestry, and Fishing
Division B. Mining
Division D. Manufacturing
Division E. Transportation, Communications, Electric, Gas, and Sanitary 
Services
Division I. Services

    (20) Infiltration. Water other than wastewater that enters a sewer 
system (including sewer service connections and foundation drains) from 
the ground through such means as defective pipes, pipe joints, 
connections, or manholes. Infiltration does not include, and is 
distinguished from, inflow.
    (21) Inflow. Water other than wastewater that enters a sewer system

[[Page 532]]

(including sewer service connections) from sources such as, but not 
limited to, roof leaders, cellar drains, yard drains, area drains, 
drains from springs and swampy areas, manhole covers, cross connections 
between storm sewers and sanitary sewers, catch basins, cooling towers, 
storm waters, surface runoff, street wash waters, or drainage. Inflow 
does not include, and is distinguished from, infiltration.
    (22) Initiation of operation. The date specified by the grantee on 
which use of the project begins for the purpose for which it was 
planned, designed, and built.
    (23) Innovative technology. Developed wastewater treatment processes 
and techniques which have not been fully proven under the circumstances 
of their contemplated use and which represent a significant advancement 
over the state of the art in terms of significant reduction in life 
cycle cost or significant environmental benefits through the reclaiming 
and reuse of water, otherwise eliminating the discharge of pollutants, 
utilizing recycling techniques such as land treatment, more efficient 
use of energy and resources, improved or new methods of waste treatment 
management for combined municipal and industrial systems, or the 
confined disposal of pollutants so that they will not migrate to cause 
water or other environmental pollution.
    (24) Interceptor sewer. A sewer which is designed for one or more of 
the following purposes:
    (i) To intercept wastewater from a final point in a collector sewer 
and convey such wastes directly to a treatment facility or another 
interceptor.
    (ii) To replace an existing wastewater treatment facility and 
transport the wastes to an adjoining collector sewer or interceptor 
sewer for conveyance to a treatment plant.
    (iii) To transport wastewater from one or more municipal collector 
sewers to another municipality or to a regional plant for treatment.
    (iv) To intercept an existing major discharge of raw or inadequately 
treated wastewater for transport directly to another interceptor or to a 
treatment plant.
    (25) Interstate agency. An agency of two or more States established 
under an agreement or compact approved by the Congress, or any other 
agency of two or more States, having substantial powers or duties 
pertaining to the control of water pollution.
    (26) Marine bays and estuaries. Semi-enclosed coastal waters which 
have a free connection to the territorial sea.
    (27) Municipality. A city, town, borough, county, parish, district, 
association, or other public body (including an intermunicipal agency of 
two or more of the foregoing entities) created under State law, or an 
Indian tribe or an authorized Indian tribal organization, having 
jurisdiction over disposal of sewage, industrial wastes, or other waste, 
or a designated and approved management agency under section 208 of the 
Act.
    (i) This definition includes a special district created under State 
law such as a water district, sewer district, sanitary district, utility 
district, drainage district or similar entity or an integrated waste 
management facility, as defined in section 201(e) of the Act, which has 
as one of its principal responsibilities the treatment, transport, or 
disposal of domestic wastewater in a particular geographic area.
    (ii) This definition excludes the following:
    (A) Any revenue producing entity which has as its principal 
responsibility an activity other than providing wastewater treatment 
services to the general public, such as an airport, turnpike, port 
facility or other municipal utility.
    (B) Any special district (such as school district or a park 
district) which has the responsibility to provide wastewater treatment 
services in support of its principal activity at specific facilities, 
unless the special district has the responsibility under State law to 
provide wastewater treatment services to the community surrounding the 
special district's facility and no other municipality, with concurrent 
jurisdiction to serve the community, serves or intends to serve the 
special district's facility or the surrounding community.
    (28) Nonexcessive infiltration. The quantity of flow which is less 
than 120 gallons per capita per day (domestic

[[Page 533]]

base flow and infiltration) or the quantity of infiltration which cannot 
be economically and effectively eliminated from a sewer system as 
determined in a cost-effectiveness analysis. (See 
Sec. Sec. 35.2005(b)(16) and 35.2120.)
    (29) Nonexcessive inflow. The maximum total flow rate during storm 
events which does not result in chronic operational problems related to 
hydraulic overloading of the treatment works or which does not result in 
a total flow of more than 275 gallons per capita per day (domestic base 
flow plus infiltration plus inflow). Chronic operational problems may 
include surcharging, backups, bypasses, and overflows. (See 
Sec. Sec. 35.2005(b)(16) and 35.2120).
    (30) Operation and Maintenance. Activities required to assure the 
dependable and economical function of treatment works.
    (i) Maintenance: Preservation of functional integrity and efficiency 
of equipment and structures. This includes preventive maintenance, 
corrective maintenance and replacement of equipment (See 
Sec. 35.2005(b)(36)) as needed.)
    (ii) Operation: Control of the unit processes and equipment which 
make up the treatment works. This includes financial and personnel 
management; records, laboratory control, process control, safety and 
emergency operation planning.
    (31) Principal residence. For the purposes of Sec. 35.2034, the 
habitation of a family or household for at least 51 percent of the year. 
Second homes, vacation or recreation residences are not included in this 
definition.
    (32) Project. The activities or tasks the Regional Administrator 
identifies in the grant agreement for which the grantee may expend, 
obligate or commit funds.
    (33) Project performance standards. The performance and operations 
requirements applicable to a project including the enforceable 
requirements of the Act and the specifications, including the quantity 
of excessive infiltration and inflow proposed to be eliminated, which 
the project is planned and designed to meet.
    (34) Priority water quality areas. For the purposes of Sec. 35.2015, 
specific stream segments or bodies of water, as determined by the State, 
where municipal discharges have resulted in the impairment of a 
designated use or significant public health risks, and where the 
reduction of pollution from such discharges will substantially restore 
surface or groundwater uses.
    (35) Project schedule. A timetable specifying the dates of key 
project events including public notices of proposed procurement actions, 
subagreement awards, issuance of notice to proceed with building, key 
milestones in the building schedule, completion of building, initiation 
of operation and certification of the project.
    (36) Replacement. Obtaining and installing equipment, accessories, 
or appurtenances which are necessary during the design or useful life, 
whichever is longer, of the treatment works to maintain the capacity and 
performance for which such works were designed and constructed.
    (37) Sanitary sewer. A conduit intended to carry liquid and water-
carried wastes from residences, commercial buildings, industrial plants 
and institutions together with minor quantities of ground, storm and 
surface waters that are not admitted intentionally.
    (38) Services. A contractor's labor, time or efforts which do not 
involve the delivery of a specific end item, other than documents (e.g., 
reports, design drawings, specifications). This term does not include 
employment agreements or collective bargaining agreements.
    (39) Small commercial establishments. For purposes of Sec. 35.2034 
private establishments such as restaurants, hotels, stores, filling 
stations, or recreational facilities and private, nonprofit entities 
such as churches, schools, hospitals, or charitable organizations with 
dry weather wastewater flows less than 25,000 gallons per day.
    (40) Small Community. For purposes of Sec. Sec. 35.2020(b) and 
35.2032, any municipality with a population of 3,500 or less or highly 
dispersed sections of larger municipalities, as determined by the 
Regional Administrator.
    (41) State. A State, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, American Samoa, the Trust 
Territory of the

[[Page 534]]

Pacific Islands, and the Commonwealth of the Northern Marianas. For the 
purposes of applying for a grant under section 201(g)(1) of the act, a 
State (including its agencies) is subject to the limitations on revenue 
producing entities and special districts contained in 
Sec. 35.2005(b)(27)(ii).
    (42) State agency. The State agency designated by the Governor 
having responsibility for administration of the construction grants 
program under section 205(g) of the Act.
    (43) Step 1. Facilities planning.
    (44) Step 2. Preparation of design drawings and specifications.
    (45) Step 3. Building of a treatment works and related services and 
supplies.
    (46) Step 2+3. Design and building of a treatment works and building 
related services and supplies.
    (47) Step 7. Design/building of treatment works wherein a grantee 
awards a single contract for designing and building certain treatment 
works.
    (48) Storm sewer. A sewer designed to carry only storm waters, 
surface run-off, street wash waters, and drainage.
    (49) Treatment works. Any devices and systems for the storage, 
treatment, recycling, and reclamation of municipal sewage, domestic 
sewage, or liquid industrial wastes used to implement section 201 of the 
Act, or necessary to recycle or reuse water at the most economical cost 
over the design life of the works. These include intercepting sewers, 
outfall sewers, sewage collection systems, individual systems, pumping, 
power, and other equipment and their appurtenances; extensions, 
improvement, remodeling, additions, and alterations thereof; elements 
essential to provide a reliable recycled supply such as standby 
treatment units and clear well facilities; and any works, including 
acquisition of the land that will be an integral part of the treatment 
process or is used for ultimate disposal of residues resulting from such 
treatment (including land for composting sludge, temporary storage of 
such compost and land used for the storage of treated wastewater in land 
treatment systems before land application); or any other method or 
system for preventing, abating, reducing, storing, treating, separating, 
or disposing of municipal waste or industrial waste, including waste in 
combined storm water and sanitary sewer systems.
    (50) Treatment works phase or segment. A treatment works phase or 
segment may be any substantial portion of a facility and its 
interceptors described in a facilities plan under Sec. 35.2030, which 
can be identified as a subagreement or discrete subitem. Multiple 
subagreements under a project shall not be considered to be segments or 
phases. Completion of building of a treatment works phase or segment 
may, but need not in and of itself, result in an operable treatment 
works.
    (51) Useful life. The period during which a treatment works 
operates. (Not ``design life'' which is the period during which a 
treatment works is planned and designed to be operated.)
    (52) User charge. A charge levied on users of a treatment works, or 
that portion of the ad valorem taxes paid by a user, for the user's 
proportionate share of the cost of operation and maintenance (including 
replacement) of such works under sections 204(b)(1)(A) and 201(h)(2) of 
the Act and this subpart.
    (53) Value engineering. A specialized cost control technique which 
uses a systematic and creative approach to identify and to focus on 
unnecessarily high cost in a project in order to arrive at a cost saving 
without sacrificing the reliability or efficiency of the project.

[49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45894, Nov. 4, 1985; 55 
FR 27095, June 29, 1990]



Sec. 35.2010  Allotment; reallotment.

    (a) Allotments are made on a formula or other basis which Congress 
specifies for each fiscal year (FY). The allotment for each State and 
the availability period shall be announced each fiscal year in the 
Federal Register. This section applies only to funds allotted under 
section 205 of the Act.
    (b) Unless otherwise provided by Congress, all sums allotted to a 
State under section 205 of the Act shall remain available for obligation 
until the end of the one year after the close of the fiscal year for 
which the sums were appropriated. Except as provided in Sec. 35.2020(a), 
sums not obligated at the end of that period shall be subject to

[[Page 535]]

reallotment on the basis of the same ratio as applicable to the then-
current fiscal year, adjusted for the States which failed to obligate 
any of the fiscal year funds being reallotted, but none of the funds 
reallotted shall be made available to any State which failed to obligate 
any of the fiscal year funds being reallotted. Any sum made available to 
a State by reallotment under this section shall be in addition to any 
funds otherwise allotted to such State for grants under this subpart 
during any fiscal year and the reallotted funds shall remain available 
for obligation until the last day of the fiscal year following the 
fiscal year in which the reallotted funds are issued by the Comptroller 
to the Regional Administrator.
    (c) Except for funds appropriated for FY 72 and fiscal years prior 
to 1972, sums which are deobligated and reissued by the Comptroller to 
the Regional Administrator before their reallotment date shall be 
available for obligation in the same State and treated in the same 
manner as the allotment from which such funds were derived.
    (d) Except for funds appropriated for FY 72 and fiscal years prior 
to 1972, deobligated sums which are reissued by the Comptroller to the 
Regional Administrator after their reallotment date shall be available 
for obligation in the same State until the last day of the fiscal year 
following the fiscal year in which the reissuance occurs.
    (e) Deobligated FY 72 and prior to 1972 fiscal year funds, except 
1964, 1965 and 1966 funds, will be credited to the allowances of the 
same Region from which such funds are recovered, and the Regional 
Administrator may determine how these recoveries are credited to the 
States within the Region.

[49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45895, Nov. 4, 1985]



Sec. 35.2012  Capitalization grants.

    Amounts allotted to a State under title II may be deposited in that 
State's water pollution control revolving fund as a capitalization grant 
in accordance with 40 CFR 35.5020 (f) and (g).

[55 FR 27095, June 29, 1990]



Sec. 35.2015  State priority system and project priority list.

    (a) General. The Regional Administrator will award grant assistance 
from annual allotments to projects on a State project priority list 
developed in accordance with an approved State priority system. The 
State priority system and list must be designed to achieve optimum water 
quality management consistent with the goals and requirements of the 
Act. All projects for building treatment works to be funded by EPA must 
be included on a State project list, except training facilities funded 
under section 109(b) of the Act and marine CSO projects funded under 
section 201(n)(2) of the Act.
    (b) State priority system. The State priority system describes the 
methodology used to rank projects that are considered eligible for 
assistance. The priority system should give high priority to projects in 
priority water quality areas. The priority system may also include the 
administrative, management, and public participation procedures required 
to develop and revise the State project priority list. The priority 
system includes at least the following elements:
    (1) Criteria. (i) The priority system shall include at least the 
following criteria for ranking projects:
    (A) The impairment of classified water uses resulting from existing 
municipal pollutant discharges; and
    (B) The extent of surface or ground water use restoration or public 
health improvement resulting from the reduction in pollution.
    (ii) The State may also include other criteria in its priority 
system for ranking projects, such as the use of innovative or 
alternative technology, the need to complete a waste treatment system 
for which a grant for a phase or segment was previously awarded; and the 
category of need and the existing population affected.
    (iii) In ranking phased and segmented projects States must comply 
with Sec. 35.2108.
    (2) Categories of need. All projects must fit into at least one of 
the categories of need described in this paragraph to be eligible for 
funding, except as provided in paragraphs (b)(2) (iii) and (iv) of this 
section. States will

[[Page 536]]

have sole authority to determine the priority for each category of need.
    (i) Before October 1, 1984, these categories of need shall include 
at least the following:
    (A) Secondary treatment (category I);
    (B) Treatment more stringent than secondary (category II);
    (C) Infiltration/inflow correction (category IIIA);
    (D) Major sewer system rehabilitation (category IIIB);
    (E) New collector sewers and appurtenances (category IVA);
    (F) New interceptors and appurtenances (category IVB);
    (G) Correction of combined sewer overflows (category V).
    (ii) After September 30, 1984, except as provided in paragraphs 
(b)(2) (iii) and (iv) of this section, these categories of need shall 
include only the following:
    (A) Secondary treatment or any cost-effective alternative;
    (B) Treatment more stringent than secondary or any cost-effective 
alternative;
    (C) New interceptors and appurtenances; and
    (D) Infiltration/inflow correction.
    (iii) After September 30, 1984, up to 20 percent (as determined by 
the Governor) of a State's annual allotment may be used for categories 
of need other than those listed in paragraph (b)(2)(ii) of this section 
and for any purpose for which grants may be made under sections 319 (h) 
and (i) of the Act (including any innovative and alternative approaches 
for the control of nonpoint sources of pollution).
    (iv) After September 30, 1984, the Governor may include in the 
priority system a category for projects needed to correct combined sewer 
overflows which result in impaired uses in priority water quality areas. 
Only projects which comply with the requirements of Sec. 35.2024(a) may 
be included in this category.
    (c) Project priority list. The State's annual project priority list 
is an ordered listing of projects for which the State expects Federal 
financial assistance. The priority list contains two portions: the 
fundable portion, consisting of those projects anticipated to be funded 
from funds available for obligation; and the planning portion, 
consisting of projects anticipated to be funded from future authorized 
allotments.
    (1) The State shall develop the project priority list consistent 
with the criteria established in the approved priority system. In 
ranking projects, the State must also consider total funds available, 
needs and priorities set forth in areawide water quality management 
plans, and any other factors contained in the State priority system.
    (2) The list shall include an estimate of the eligible cost of each 
project.
    (d) Public participation. (1) In addition to any requirements in 40 
CFR part 25, the State shall hold public hearings as follows:
    (i) Before submitting its priority system to the Regional 
Administrator for approval and before adopting any significant change to 
an approved priority system; and
    (ii) Before submitting its annual project priority list to the 
Regional Administrator for acceptance and before revising its priority 
list unless the State agency and the Regional Administrator determine 
that the revision is not significant.
    (iii) If the approved State priority system contains procedures for 
bypassing projects on the fundable portion of the priority list, such 
bypasses will not be significant revisions for purposes of this section.
    (2) Public hearings may be conducted as directed in the State's 
continuing planning process document or may be held in conjunction with 
any regular public meeting of the State agency.
    (e) Regional Administrator review. The State must submit its 
priority system, project priority list and revisions of the priority 
system or priority list to the Regional Administrator for review. The 
State must also submit each year, by August 31, a new priority list for 
use in the next fiscal year.
    (1) After submission and approval of the initial priority system and 
submission and acceptance of the project priority lists under paragraph 
(c) of this section, the State may revise its priority system and list 
as necessary.
    (2) The Regional Administrator shall review the State priority 
system and any revisions to insure that they are

[[Page 537]]

designed to obtain compliance with the criteria established in 
accordance with paragraphs (b) and (d) of this section and the 
enforceable requirements of the Act as defined in Sec. 35.2005(b)(15). 
The Regional Administrator shall complete review of the priority system 
within 30 days of receipt of the system from the State and will notify 
the State in writing of approval or disapproval of the priority system, 
stating any reasons for disapproval.
    (3) The Regional Administrator will review the project priority list 
and any revisions to insure compliance with the State's approved 
priority system and the requirements of paragraph (c) of this section. 
The Regional Administrator will complete review of the project priority 
list within 30 days of receipt from the State and will notify the State 
in writing of acceptance or rejection, stating the reasons for the 
rejection. Any project which is not contained on an accepted current 
priority list will not receive funding.
    (f) Compliance with the enforceable requirements of the Act. (1) 
Except as limited under paragraph (f)(2) of this section, the Regional 
Administrator, after a public hearing, shall require the removal of a 
specific project or portion thereof from the State project priority list 
if the Regional Administrator determines it will not contribute to 
compliance with the enforceable requirements of the Act.
    (2) The Regional Administrator shall not require removal of projects 
in categories under paragraphs (b)(2)(i) (D) through (G) of this section 
which do not meet the enforceable requirements of the Act unless the 
total Federal share of such projects would exceed 25 percent of the 
State's annual allotment.

[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27095, June 29, 1990]



Sec. 35.2020  Reserves.

    In developing its priority list the State shall establish the 
reserves required or authorized under this section. The amount of each 
mandatory reserve shall be based on the allotment to each State from the 
annual appropriation under Sec. 35.2010. The State may also establish 
other reserves which it determines appropriate.
    (a) Reserve for State management assistance grants. Each State may 
request that the Regional Administrator reserve, from the State's annual 
allotment, up to 4 percent of the State's allotment based on the amount 
authorized to be appropriated, or $400,000, whichever is greater, for 
State management assistance grants under subpart A of this part. Grants 
may be made from these funds to cover the costs of administering 
activities delegated or scheduled to be delegated to a State. Funds 
reserved for this purpose that are not obligated by the end of the 
allotment period will be added to the amounts last allotted to a State. 
These funds shall be immediately available for obligation to projects in 
the same manner and to the same extent as the last allotment.
    (b) Reserve for alternative systems for small communities. Each 
State with 25 percent or more rural population (as determined by the 
population estimates of the Bureau of Census) shall reserve not less 
than 4 percent nor more than 7\1/2\ percent of the State's annual 
allotment for alternatives to conventional treatment works for small 
communities. The Governor of any non-rural State may reserve up to 7\1/
2\ percent of the State's allotment for the same purpose.
    (c) Reserve for innovative and alternative technologies. Each State 
shall reserve not less than 4 percent nor more than 7\1/2\ percent from 
its annual allotment to increase the Federal share of grant awards under 
Sec. 35.2032 for projects which use innovative or alternative wastewater 
treatment processes and techniques. Of this amount not less than one-
half of one percent of the State's allotment shall be set aside to 
increase the Federal share for projects using innovative processes and 
techniques.
    (d) Reserve for water quality management. Each State shall reserve 
not less than $100,000 nor more than 1 percent from its annual 
allotments, to carry out water quality management planning under 
Sec. 35.2023, except that in the case of Guam, the Virgin Islands, 
American Samoa, the Trust Territory of the Pacific Islands and the 
Commonwealth of the Northern Marianas, a

[[Page 538]]

reasonable amount shall be reserved for this purpose.
    (e) Reserve for Advances of Allowance. Each State shall reserve a 
reasonable portion of its annual allotment not to exceed 10 percent for 
advances of allowance under Sec. 35.2025. The Regional Administrator may 
waive this reserve requirement where a State can demonstrate that such a 
reserve is not necessary because no new facilities planning or design 
work requiring an advance and resulting in Step 3 grant awards is 
expected to begin during the period of availability of the annual 
allotment.
    (f) Nonpoint source reserve. Each State shall reserve 1 percent of 
its annual allotment or $100,000, whichever is greater, for development 
and implementation of a nonpoint source management program under section 
319 of the Act. Sums reserved by the State under this paragraph that are 
in excess of $100,000 and that are not used for these purposes, may be 
used by the State for any other purpose under title II of the Act.
    (g) Marine estuary reserve. The Administrator shall reserve, before 
allotment of funds to the States, 1 percent of the funds appropriated 
under section 207 in fiscal years 1987 and 1988, and 1\1/2\ percent of 
the funds appropriated under section 207 in fiscal years 1989 and 1990, 
to carry out section 205(l) of the Act.
    (h) Indian program reserve. The Administrator shall reserve, before 
allotment of funds to the States, one-half of 1 percent of the funds 
appropriated under section 207 in fiscal years 1987, 1988, 1989 and 
1990, for grants for the development of waste treatment management plans 
and for the construction of sewage treatment works to serve Indian 
tribes.
[49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45895, Nov. 4, 1985; 55 
FR 27095, June 29, 1990]



Sec. 35.2021  Reallotment of reserves.

    (a) Mandatory portions of reserves under Sec. 35.2020(b) through (g) 
shall be reallotted if not obligated during the allotment period 
(Sec. 35.2010(b) and (d)). Such reallotted sums are not subject to 
reserves. The State management assistance reserve under Sec. 35.2020(a) 
is not subject to reallotment.
    (b) States may request the Regional Administrator to release funds 
in optional reserves or optional portions of required reserves under 
Sec. 35.2020(b) through (e) for funding projects at any time before the 
reallotment date. If these optional reserves are not obligated or 
released and obligated for other purposes before the reallotment date, 
they shall be subject to reallotment under Sec. 35.2010(b).
    (c) Sums deobligated from the mandatory portion of reserves under 
paragraphs (b) through (e) of Sec. 35.2020 which are reissued by the 
Comptroller to the Regional Administrator before the initial reallotment 
date for those funds shall be returned to the same reserve. (See 
Sec. 35.2010(c)).

[49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45895, Nov. 4, 1985; 55 
FR 27095, June 29, 1990]



Sec. 35.2023  Water quality management planning.

    (a) From funds reserved under Sec. 35.2020(d) the Regional 
Administrator shall make grants to the States to carry out water quality 
management planning including but not limited to:
    (1) Identifying the most cost-effective and locally acceptable 
facility and non-point measures to meet and maintain water quality 
standards;
    (2) Developing an implementation plan to obtain State and local 
financial and regulatory commitments to implement measures developed 
under paragraph (a)(1) of this section;
    (3) Determining the nature, extent and causes of water quality 
problems in various areas of the State and interstate region, and 
reporting on these annually; and
    (4) Determining which publicly owned treatment works should be 
constructed, in which areas and in what sequence, taking into account 
the relative degree of effluent reduction attained, the relative 
contributions to water quality of other point or nonpoint sources, and 
the consideration of alternatives to such construction, and implementing 
section 303(e) of the Act.
    (b) In carrying out planning with grants made under paragraph (a) of 
this section, a State shall develop

[[Page 539]]

jointly with local, regional and interstate entities, a plan for 
carrying out the program and give funding priority to such entities and 
designated or undesignated public comprehensive planning organizations 
to carry out the purposes of this section.



Sec. 35.2024  Combined sewer overflows.

    (a) Grant assistance from State allotment. As provided in 
Sec. 35.2015(b)(2)(iv), after September 30, 1984, upon request from a 
State, the Administrator may award a grant under section 201(n)(1) of 
the Act from the State allotment for correction of combined sewer 
overflows provided that the project is on the project priority list, it 
addresses impaired uses in priority water quality areas which are due to 
the impacts of the combined sewer overflows and otherwise meets the 
requirements of this subpart. The State must demonstrate to the 
Administrator that the water quality goals of the Act will not be 
achieved without correcting the combined sewer overflows. The 
demonstration shall as a minimum prove that significant usage of the 
water for fishing and swimming will not be possible without the proposed 
project, and that the project will result in substantial restoration of 
an existing impaired use.
    (b) Separate fund for combined sewer overflows in marine waters. (1) 
After September 30, 1982, the Administrator may award grants under 
section 201(n)(2) of the Act for addressing impaired uses or public 
health risks in priority water quality areas in marine bays and 
estuaries due to the impacts of combined sewer overflows. The 
Administrator may award such grants provided that the water quality 
benefits of the proposed project have been demonstrated by the State. 
The demonstration shall as a minimum prove that significant usage of the 
water for shellfishing and swimming will not be possible without the 
proposed project for correction of combined sewer overflows, and the 
proposed project will result in substantial restoration of an existing 
impaired use.
    (2) The Administrator shall establish priorities for projects with 
demonstrated water quality benefits based upon the following criteria:
    (i) Extent of water use benefits that would result, including 
swimming and shellfishing;
    (ii) Relationship of water quality improvements to project costs; 
and
    (iii) National and regional significance.
    (3) If the project is a phase or segment of the proposed treatment 
works described in the facilities plan, the criteria in paragraph (b)(2) 
of this section must be applied to the treatment works described in the 
facilities plan and each segment proposed for funding.
    (4) All requirements of this subpart apply to grants awarded under 
section 201(n)(2) of the Act except Sec. Sec. 35.2010, 35.2015, 35.2020, 
35.2021, 35.2025(b), 35.2042, 35.2103, 35.2109, and 35.2202.



Sec. 35.2025  Allowance and advance of allowance.

    (a) Allowance. Step 2+3 and Step 3 grant agreements will include an 
allowance for facilities planning and design of the project and Step 7 
agreements will include an allowance for facility planning in accordance 
with appendix B of this subpart.
    (b) Advance of allowance to potential grant applicants. (1) After 
application by the State (see Sec. 35.2040(d)), the Regional 
Administrator will award a grant to the State in the amount of the 
reserve under Sec. 35.2020(e) to advance allowances to potential grant 
applicants for facilities planning and project design.
    (2) The State may request that the right to receive payments under 
the grant be assigned to specified potential grant applicants.
    (3) The State may provide advances of allowance only to small 
communities, as defined by the State, which would otherwise be unable to 
complete an application for a grant under Sec. 35.2040 in the judgment 
of the State.
    (4) The advance shall not exceed the Federal share of the estimate 
of the allowance for such costs which a grantee would receive under 
paragraph (a) of this section.
    (5) In the event a Step 2+3, Step 3 or Step 7 grant is not awarded 
to a recipient of an advance, the State may seek repayment of the 
advance on such

[[Page 540]]

terms and conditions as it may determine. When the State recovers such 
advances they shall be added to its most recent grant for advances of 
allowance.

[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27095, June 29, 1990]



Sec. 35.2030  Facilities planning.

    (a) General. (1) Facilities planning consists of those necessary 
plans and studies which directly relate to treatment works needed to 
comply with enforceable requirements of the Act. Facilities planning 
will investigate the need for proposed facilities. Through a systematic 
evaluation of alternatives that are feasible in light of the unique 
demographic, topographic, hydrologic and institutional characteristics 
of the area, it will demonstrate that, except for innovative and 
alternative technology under Sec. 35.2032, the selected alternative is 
cost effective (i.e., is the most economical means of meeting the 
applicable effluent, water quality and public health requirements over 
the design life of the facility while recognizing environmental and 
other non-monetary considerations). For sewered communities with a 
population of 10,000 or less, consideration must be given to appropriate 
low cost technologies such as facultative ponds, trickling filters, 
oxidation ditches, or overland-flow land treatment; and for unsewered 
portions of communities of 10,000 or less, consideration must be given 
to onsite systems. The facilities plan will also demonstrate that the 
selected alternative is implementable from legal, institutional, 
financial and management standpoints.
    (2) Grant assistance may be awarded before certification of the 
completed facilities plan if:
    (i) The Regional Administrator determines that applicable statutory 
and regulatory requirements (including part 6) have been met; that the 
facilities planning related to the project has been substantially 
completed; and that the project for which grant assistance is awarded 
will not be significantly affected by the completion of the facilities 
plan and will be a component part of the complete waste treatment 
system; and
    (ii) The applicant agrees to complete the facilities plan on a 
schedule the State accepts and such schedule is inserted as a special 
condition of the grant agreement.
    (b) Facilities plan contents. A completed facilities plan must 
include:
    (1) A description of both the proposed treatment works, and the 
complete waste treatment system of which it is a part.
    (2) A description of the Best Practicable Wastewater Treatment 
Technology. (See Sec. 35.2005(b)(7).)
    (3) A cost-effectiveness analysis of the feasible conventional, 
innovative and alternative wastewater treatment works, processes and 
techniques capable of meeting the applicable effluent, water quality and 
public health requirements over the design life of the facility while 
recognizing environmental and other non-monetary considerations. The 
planning period for the cost-effectiveness analysis shall be 20 years. 
The monetary costs to be considered must include the present worth or 
equivalent annual value of all capital costs and operation and 
maintenance costs. The discount rate established by EPA for the 
construction grants program shall be used in the cost-effectiveness 
analysis. The population forecasting in the analysis shall be consistent 
with the current Needs Survey. A cost-effectiveness analysis must 
include:
    (i) An evaluation of alternative flow reduction methods. (If the 
grant applicant demonstrates that the existing average daily base flow 
(ADBF) from the area is less than 70 gallons per capita per day (gpcd), 
or if the Regional Administrator determines the area has an effective 
existing flow reduction program, additional flow reduction evaluation is 
not required.)
    (ii) A description of the relationship between the capacity of 
alternatives and the needs to be served, including capacity for future 
growth expected after the treatment works become operational. This 
includes letters of intent from significant industrial users and all 
industries intending to increase their flows or relocate in the area 
documenting capacity needs and characteristics for existing or projected 
flows;
    (iii) An evaluation of improved effluent quality attainable by 
upgrading

[[Page 541]]

the operation and maintenance and efficiency of existing facilities as 
an alternative or supplement to construction of new facilities;
    (iv) An evaluation of the alternative methods for the reuse or 
ultimate disposal of treated wastewater and sludge material resulting 
from the treatment process;
    (v) A consideration of systems with revenue generating applications;
    (vi) An evaluation of opportunities to reduce use of, or recover 
energy;
    (vii) Cost information on total capital costs, and annual operation 
and maintenance costs, as well as estimated annual or monthly costs to 
residential and industrial users.
    (4) A demonstration of the non-existence or possible existence of 
excessive inflitration/inflow in the sewer system. See Sec. 35.2120.
    (5) An analysis of the potential open space and recreation 
opportunities associated with the project.
    (6) An adequate evaluation of the environmental impacts of 
alternatives under part 6 of this chapter.
    (7) An evaluation of the water supply implications of the project.
    (8) For the selected alternative, a concise description at an 
appropriate level of detail, of at least the following:
    (i) Relevant design parameters;
    (ii) Estimated capital construction and operation and maintenance 
costs, (identifying the Federal, State and local shares), and a 
description of the manner in which local costs will be financed;
    (iii) Estimated cost of future expansion and long-term needs for 
reconstruction of facilities following their design life;
    (iv) Cost impacts on wastewater system users; and
    (v) Institutional and management arrangements necessary for 
successful implementation.
    (c) Submission and review of facilities plan. Each facilities plan 
must be submitted to the State for review. EPA recommends that potential 
grant applicants confer with State reviewers early in the facilities 
planning process. In addition, a potential grant applicant may request 
in writing from the State and EPA an early determination under part 6 of 
this chapter of the appropriateness of a categorical exclusion from NEPA 
requirements, the scope of the environmental information document or the 
early preparation of an environmental impact statement.



Sec. 35.2032  Innovative and alternative technologies.

    (a) Funding for innovative and alternative technologies. Projects or 
portions of projects using unit processes or techniques which the 
Regional Administrator determines to be innovative or alternative 
technology shall receive increased grants under Sec. 35.2152.
    (1) Only funds from the reserve in Sec. 35.2020(c) shall be used to 
increase these grants.
    (2) If the project is an alternative to conventional treatment works 
for a small community, funds from the reserve in Sec. 35.2020(b) may be 
used for the 75 percent portion, or any lower Federal share of the grant 
as determined under Sec. 35.2152.
    (b) Cost-effectiveness preference. The Regional Administrator may 
award grant assistance for a treatment works or portion of a treatment 
works using innovative or alternative technologies if the total present 
worth cost of the treatment works for which the grant is to be made does 
not exceed the total present worth cost of the most cost-effective 
alternative by more than 15 percent.
    (1) Privately-owned individual systems (Sec. 35.2034) are not 
eligible for this preference.
    (2) If the present worth costs of the innovative or alternative unit 
processes are 50 percent or less of the present worth cost of the 
treatment works, the cost-effectiveness preference applies only to the 
innovative or alternative components.
    (c) Modification or replacement of innovative and alternative 
projects. The Regional Administrator may award grant assistance to fund 
100 percent of the allowable costs of the modification or replacement of 
any project funded with increased grant funding in accordance with 
paragraph (a) of this section if he determines that:
    (1) The innovative or alternative elements of the project have 
caused the project or significant elements of the complete waste 
treatment system of

[[Page 542]]

which the project is a part to fail to meet project performance 
standards;
    (2) The failure has significantly increased operation and 
maintenance expenditures for the project or the complete waste treatment 
system of which the project is a part; or requires significant 
additional capital expenditures for corrective action;
    (3) The failure has occurred prior to two years after initiation of 
operation of the project; and
    (4) The failure is not attributable to negligence on the part of any 
person.



Sec. 35.2034  Privately owned individual systems.

    (a) An eligible applicant may apply for a grant to build privately 
owned treatment works serving one or more principal residences or small 
commercial establishments.
    (b) In addition to those applicable limitations set forth in 
Sec. Sec. 35.2100 through 35.2127 the grant applicant shall:
    (1) Demonstrate that the total cost and environmental impact of 
building the individual system will be less than the cost of a 
conventional system;
    (2) Certify that the principal residence or small commercial 
establishment was constructed before December 27, 1977, and inhabited or 
in use on or before that date;
    (3) Apply on behalf of a number of individual units to be served in 
the facilities planning area;
    (4) Certify that public ownership of such works is not feasible and 
list the reasons; and
    (5) Certify that such treatment works will be properly operated and 
maintained and will comply with all other requirements of section 204 of 
the Act.



Sec. 35.2035  Rotating biological contractor (RBC) replacement grants.

    The Regional Administrator may award a grant for 100 percent of the 
cost, including planning and design costs, of modification or 
replacement of RBCs which have failed to meet design performance 
specifications, provided:
    (a) The applicant for a modification/replacement grant demonstrates 
to the Regional Administrator's satisfaction, by a preponderance of the 
evidence, that the RBC failure is not due to the negligence of any 
person, including the treatment works owner, the applicant, its 
engineers, contractors, equipment manufacturers or suppliers;
    (b) The RBC failure has significantly increased the project's 
capital or operation and maintenance costs;
    (c) The modification/replacement project meets all requirements of 
EPA's construction grant and other applicable regulations, including 40 
CFR parts 31, 32 and 35;
    (d) The modification/replacement project is included within the 
fundable range of the State's annual project priority list; and
    (e) The State certifies the project for funding from its regular 
(i.e. non-reserve) allotments and from funds appropriated or otherwise 
available after February 4, 1987.

[55 FR 27095, June 29, 1990]



Sec. 35.2036  Design/build project grants.

    (a) Terms and conditions. The Regional Administrator may award a 
design/build (Step 7) project grant provided that:
    (1) The proposed treatment works has an estimated total cost of $8 
million or less;
    (2) The proposed treatment works is an aerated lagoon, trickling 
filter, waste stabilization pond, land application system (wastewater or 
sludge), slow rate (intermittent) sand filter or subsurface disposal 
system;
    (3) The proposed treatment works will be an operable unit, will meet 
all requirements of title II of the Act, and will be operated to meet 
the requirements of any applicable permit;
    (4) The grantee obtains bonds from the contractor in an amount the 
Regional Administrator determines adequate to protect the Federal 
interest in the treatment works (see 40 CFR 31.36(h));
    (5) The grantee will not allow any engineer, engineering firm or 
contractor which provided facilities planning or pre-bid services to bid 
or carry out any part of the design/build work;
    (6) Contracts will be firm, fixed price contracts;
    (7) The grantee agrees that the grant amount, as amended to reflect 
the lowest responsive/responsible bid (see

[[Page 543]]

paragraph (e) of this section), will not be increased;
    (8) The grantee will establish reasonable building start and 
completion dates;
    (9) The grantee agrees that EPA will not pay more than 95 percent of 
the grant amount until after completion of building and the Regional 
Administrator's final project approval, based on initiation of operation 
and acceptance of the facility by the grantee;
    (10) The grantee agrees that a recipient of a Step 7 grant is not 
eligible for any other grant for the project under title II of the Act; 
and
    (11) The grantee accepts other terms and conditions deemed necessary 
by the Regional Administrator.
    (b) Procurement. (1) Grantee procurement for developing or 
supplementing the facilities plan to prepare the pre-bid package, as 
well as for designing and building the project and performing 
construction management and contract administration, will be in 
accordance with EPA procurement requirements at 40 CFR part 31.
    (2) The grantee will use the sealed bid (formal advertising) method 
of procurement to select the design/build contractor.
    (3) The grantee may use the same architect or engineer that prepared 
the facilities plan to provide any or all of the pre-bid, construction 
management, and contract and/or project administration services provided 
the initial procurement met EPA requirements (see 40 CFR 31.36(k)).
    (c) Pre-bid package. Each design/build project grant will provide 
for the preparation of a pre-bid package that is sufficiently detailed 
to insure that the bids received for the design/build work are complete, 
accurate and comparable and will result in a cost-effective, operable 
facility.
    (d) Grant amount. The grant amount will be based on an estimate of 
the design/build project's final cost, including:
    (1) An allowance for facilities planning if the grantee did not 
receive a Step 1 grant (the amount of the allowance is established as a 
percentage of the estimated design/build cost in accordance with 
appendix B of this subpart);
    (2) An estimated cost of sup- plementing the facilities plan and 
other costs necessary to prepare the pre-bid package (see appendix 
A.I.1(a) of this subpart); and
    (3) The estimated cost of the design/build contract.
    (e) Amended grant amount. (1) After bids are accepted for the 
design/build contract, and the price of the lowest responsive, 
responsible bidder is determined, EPA will amend the design/build 
project grant based on:
    (i) The amount of the lowest responsive, responsible bid;
    (ii) A lump sum for construction management, contract and project 
administration services and contingencies;
    (iii) Any adjustments to the final allowance for facilities planning 
if included as required by paragraph (c)(1) of this section (the amount 
of the final allowance is established as a percentage of the actual 
building cost in accordance with appendix B of this subpart);
    (iv) The actual reasonable and necessary cost of supplementing the 
facilities plan to prepare the pre-bid package (see paragraph (c)(1) of 
this section); and
    (v) The submission of approvable items required by Sec. 35.2203 of 
this part.
    (2) Changes to Step 7 projects cannot increase the amount of EPA 
assistance established at the time of the grant amendment.
    (f) Allotment limit for design/build grants. The Governor may use up 
to 20 percent of the State's annual allotment for design/build project 
grants.

[55 FR 27096, June 29, 1990]



Sec. 35.2040  Grant application.

    Applicants for Step 2+3 or Step 3 assistance shall submit 
applications to the State. In addition to the information required in 
parts 30 and 33 of this subchapter, applicants shall provide the 
following information:
    (a) Step 2+3: Combined design and building of a treatment works and 
building related services and supplies. An application (EPA form 5700-
32) for Step 2+3 grant assistance shall include:
    (1) A facilities plan prepared in accordance with subpart E or I as 
appropriate;

[[Page 544]]

    (2) Certification from the State that there has been adequate public 
participation based on State and local statutes;
    (3) Notification of any advance received under Sec. 35.2025(b);
    (4) Evidence of compliance with all application limitations on award 
(Sec. 35.2100 through Sec. 35.2127); and
    (5) The project schedule.
    (b) Step 3: Building of a treatment works and related services and 
supplies. An application (EPA form 5700-32) for Step 3 grant assistance 
shall include:
    (1) A facilities plan prepared in accordance with subpart E or I as 
appropriate;
    (2) Certification from the State that there has been adequate public 
participation based on State and local statutes;
    (3) Notification of any advance received under Sec. 35.2025(b);
    (4) Evidence of compliance with all applicable limitations on award 
(Sec. Sec. 35.2100 through 35.2127);
    (5) Final design drawings and specifications;
    (6) The project schedule; and
    (7) In the case of an application for Step 3 assistance that is 
solely for the acquisition of eligible real property, a plat which shows 
the legal description of the property to be acquired, a preliminary 
layout of the distribution and drainage systems, and an explanation of 
the intended method of acquiring the real property (see 40 CFR part 4).
    (c) Training facility project. An application (EPA form 5700-32) for 
a grant for construction and support of a training facility, facilities 
or training programs under section 109(b) of the Act shall include:
    (1) A written commitment from the State agency to carry out at such 
facility a program of training; and
    (2) If a facility is to be built, an engineering report including 
facility design data and cost estimates for design and building.
    (d) Advances of allowance. State applications for advances of 
allowance to small communities shall be on EPA form 5700-31, Application 
for Federal Assistance (short form). The application shall include:
    (1) A list of communities that received an advance of allowance and 
the amount received by each under the previous State grant; and
    (2) The basis for the amount requested.
    (e) Field Testing of Innovative and Alternative Technology. An 
application (EPA Form 5700-32) for field testing of I/A projects shall 
include a field testing plan containing:
    (1) Identification; including size, of all principal components to 
be tested;
    (2) Location of testing facilities in relationship to full scale 
design;
    (3) Identification of critical design parameters and performance 
variables that are to be verified as the basis for I/A determinations:
    (4) Schedule for construction of field testing facilities and 
duration of proposed testing;
    (5) Capital and O&M cost estimate of field testing facilities with 
documentation of cost effectiveness of field testing approach; and
    (6) Design drawing, process flow diagram, equipment specification 
and related engineering data and information sufficient to describe the 
overall design and proposed performance of the field testing facility.
    (f) Marine CSO Fund Project. An application (EPA Form 5700-32) for 
marine CSO grant assistance under Sec. 35.2024(b) shall include:
    (1) All information required under paragraphs (b) (1), (2), (4), 
(6), and (7), of this section;
    (2) Final design drawings and specifications or a commitment to 
provide them by a date set by the Regional Administrator; and
    (3) The water quality benefits demonstration required under 
Sec. 35.2024(b)(1).
    (g) Design/build project grant (Step 7). An application (EPA Form 
5700-20) for a design/build project grant shall include:
    (1) All the information required in paragraphs (b)(1), (2) and (4) 
of this section; and
    (2) The estimated building start and completion dates and Federal 
payment schedule (the start and completion dates may be revised when the 
design/

[[Page 545]]

build bids are accepted and included in the amended grant).

(Approved by the Office of Management and Budget under control number 
2040-0027)

[49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45895, Nov. 4, 1985; 55 
FR 27096, June 29, 1990]



Sec. 35.2042  Review of grant applications.

    (a) All States shall review grant applications to ensure that they 
are complete. When the State determines the proposed project is entitled 
to priority it shall forward the State priority certification and, 
except where application review is delegated, the complete application 
to the regional Administrator for review.
    (b)(1) All States delegated authority to manage the construction 
grants program under section 205(g) of the Act and subpart F of this 
part shall furnish a written certification to the Regional 
Administrator, on a project-by-project basis, stating that the 
applicable Federal requirements within the scope of authority delegated 
to the State under the delegation agreement have been met. The 
certification must be supported by documentation specified in the 
delegation agreement which will be made available to the Regional 
Administrator upon request. The Regional Administrator shall accept the 
certification unless he determines the State has failed to establish 
adequate grounds for the certification or that an applicable requirement 
has not been met.
    (2)(i) When EPA receives a certification covering all delegable 
preaward requirements, the Regional Administrator shall approve or 
disapprove the grant within 45 calendar days of receipt of the 
certification. The Regional Administrator shall state in writing the 
reasons for any disapproval, and he shall have an additional 45 days to 
review any subsequent revised submissions. If the Regional Administrator 
fails to approve or disapprove the grant within 45 days of receipt of 
the application, the grant shall be deemed approved and the Regional 
Adminstrator shall issue the grant agreement.
    (ii) Grant increase requests are subject to the 45 day provision of 
this section if the State has been delegated authority over the subject 
matter of the request.
    (c) Applications for assistance for training facilities funded under 
section 109(b) and for State advances of allowance under section 
201(l)(1) of the Act and Sec. 35.2025 will be reviewed in accordance 
with part 30 of this subchapter.

(Approved by the Office of Management and Budget under control number 
2040-0027)



Sec. 35.2050  Effect of approval or certification of documents.

    Review or approval of facilities plans, design drawings and 
specifications or other documents by or for EPA is for administrative 
purposes only and does not relieve the grantee of its responsibility to 
properly plan, design, build and effectively operate and maintain the 
treatment works described in the grant agreement as required under law, 
regulations, permits, and good management practices. EPA is not 
responsible for increased costs resulting from defects in the plans, 
design drawings and specifications or other subagreement documents.



Sec. 35.2100  Limitations on award.

    (a) Facilities plan approval. Before awarding grant assistance for 
any project the Regional Administrator shall approve the facilities plan 
and final design drawings and specifications and determine that the 
applicant and the applicant's project have met all the applicable 
requirements of Sec. Sec. 35.2040 and 35.2100 through Sec. 35.2127 
except as provided in Sec. 35.2202 for Step 2+3 projects and 
Sec. 35.2203 for Step 7 projects.
    (b) Agreement on eligible costs. (1) Concurrent with the approval of 
a Step 3, Step 2+3 or Step 7 grant, the Regional Administrator and the 
grant applicant will enter into a written agreement which will specify 
the items in the proposed project that are eligible for Federal payments 
and which shall be incorporated as a special grant condition in the 
grant award.
    (2) Notwithstanding such agreement, the Regional Administrator may:
    (i) Modify eligibility determinations that are found to violate 
applicable Federal statutes and regulations;
    (ii) Conduct an audit of the project;

[[Page 546]]

    (iii) Withhold or recover Federal funds for costs that are found to 
be unreasonable, unsupported by adequate documentation or otherwise 
unallowable under applicable Federal cost principles;
    (iv) Withhold or recover Federal funds for costs that are incurred 
on a project that fails to meet the design specifications or effluent 
limitations contained in the grant agreement and NPDES permit issued 
under section 402 of the Act.

[55 FR 27096, June 29, 1990]



Sec. 35.2101  Advanced treatment.

    Projects proposing advanced treatment shall be awarded grant 
assistance only after the project has been reviewed under EPA's advanced 
treatment review policy. This review must be completed before submission 
of any application. EPA recommends that potential grant applicants 
obtain this review before initiation of design.



Sec. 35.2102  Water quality management planning.

    Before grant assistance can be awarded for any treatment works 
project, the Regional Administrator shall first determine that the 
project is:
    (a) Included in any water quality management plan being implemented 
for the area under section 208 of the Act or will be included in any 
water quality management plan that is being developed for the area and 
reasonable progress is being made toward the implementation of that 
plan; and
    (b) In conformity with any plan or report implemented or being 
developed by the State under sections 303(e) and 305(b) of the Act.

[55 FR 27097, June 29, 1990]



Sec. 35.2103  Priority determination.

    The project shall be entitled to priority in accordance with 
Sec. 35.2015, and the award of grant assistance for the project shall 
not jeopardize the funding of any project of higher priority under the 
approved priority system.



Sec. 35.2104  Funding and other considerations.

    (a) The applicant shall;
    (1) Agree to pay the non-Federal project costs;
    (2) Demonstrate the legal, institutional, managerial, and financial 
capability to ensure adequate building and operation and maintenance of 
the treatment works throughout the applicant's jurisdiction including 
the ability to comply with part 30 of this subchapter. This 
demonstration must include: An explanation of the roles and 
responsibilities of the local governments involved; how construction and 
operation and maintenance of the facilities will be financed; a current 
estimate of the cost of the facilities; and a calculation of the annual 
costs per household. It must also include a written certification signed 
by the applicant that the applicant has analyzed the costs and financial 
impacts of the proposed facilities, and that it has the capability to 
finance and manage their building and operation and maintenance in 
accordance with this regulation;
    (3) Certify that it has not violated any Federal, State or local law 
pertaining to fraud, bribery, graft, kickbacks, collusion, conflict of 
interest or other unlawful or corrupt practice relating to or in 
connection with facilities planning or design work on a wastewater 
treatment works project.
    (4) Indicate the level of participation for minority and women's 
business enterprises during facilities planning and design of the 
project.
    (b) Federal assistance made available by the Farmers Home 
Administration may be used to provide the non-Federal share of the 
project's cost.

(Approved by the Office of Management and Budget under control number 
2040-0027)

[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27097, June 29, 1990]



Sec. 35.2105  Debarment and suspension.

    The applicant shall indicate whether it used the services of any 
individual, organization, or unit of government for facilities planning 
or design work whose name appears on the master list of debarments, 
suspensions, and voluntary exclusions. See 40 CFR 32.400. If the 
applicant indicates it has used the services of a debarred individual or

[[Page 547]]

firm, EPA will closely examine the facilities plan, design drawings and 
specifications to determine whether to award a grant. EPA will also 
determine whether the applicant should be found non-responsible under 
part 30 of this subchapter or be the subject of possible debarment or 
suspension under part 32 of this subchapter.



Sec. 35.2106  Plan of operation.

    The applicant shall submit a draft plan of operation that addresses 
development of: An operation and maintenance manual; an emergency 
operating program; personnel training; an adequate budget consistent 
with the user charge system approved under Sec. 35.2140; operational 
reports; laboratory testing needs; and an operation and maintenance 
program for the complete waste treatment system.



Sec. 35.2107  Intermunicipal service agreements.

    If the project will serve two or more municipalities, the applicant 
shall submit the executed intermunicipal agreements, contracts or other 
legally binding instruments necessary for the financing, building and 
operation of the proposed treatment works. At a minimum they must 
include the basis upon which costs are allocated, the formula by which 
costs are allocated, and the manner in which the cost allocation system 
will be administered. The Regional Administrator may waive this 
requirement provided the applicant can demonstrate:
    (a) That such an agreement is already in place; or
    (b) Evidence of historic service relationships for water supply, 
wastewater or other services between the affected communities regardless 
of the existence of formal agreements, and
    (c) That the financial strength of the supplier agency is adequate 
to continue the project, even if one of the proposed customer agencies 
fails to participate.

(Approved by the Office of Management and Budget under control number 
2040-0027)



Sec. 35.2108  Phased or segmented treatment works.

    Grant funding may be awarded for a phase or segment of a treatment 
works, subject to the limitations of Sec. 35.2123, although that phase 
or segment does not result in compliance with the enforceable 
requirements of the Act, provided:
    (a) The grant agreement requires the recipient to make the treatment 
works of which the phase or segment is a part operational and comply 
with the enforceable requirements of the Act according to a schedule 
specified in the grant agreement regardless of whether grant funding is 
available for the remaining phases and segments; and
    (b) Except in the case of a grant solely for the acquisition of 
eligible real property, one or more of the following conditions exist:
    (1) The Federal share of the cost of building the treatment works 
would require a disproportionate share of the State's annual allotment 
relative to other needs or would require a major portion of the State's 
annual allotment;
    (2) The period to complete the building of the treatment works will 
cover three years or more;
    (3) The treatment works must be phased or segmented to meet the 
requirements of a Federal or State court order; or
    (4) The treatment works is being phased or segmented to build only 
the less-than-secondary facility pending a final decision on the 
applicant's request for a secondary treatment requirement waiver under 
section 301(h) of the Act.

[49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45895, Nov. 4, 1985]



Sec. 35.2109  Step 2+3.

    The Regional Administrator may award a Step 2+3 grant which will 
provide the Federal share of an allowance under appendix B and the 
estimated allowable cost of the project only if:
    (a) The population of the applicant municipality is 25,000 or less 
according to the most recent U.S. Census;
    (b) The total Step 3 building cost is estimated to be $8 million or 
less; and
    (c) The project is not for a treatment works phase or segment.



Sec. 35.2110  Access to individual systems.

    Applicants for privately owned individual systems shall provide 
assurance

[[Page 548]]

of access to the systems at all reasonable times for such purposes as 
inspection, monitoring, building, operation, rehabilitation and 
replacement.



Sec. 35.2111  Revised water quality standards.

    After December 29, 1984, no grant can be awarded for projects that 
discharge into stream segments which have not, at least once since 
December 29, 1981, had their water quality standards reviewed and 
revised or new standards adopted, as appropriate, under section 303(c) 
of the Act, unless:
    (a) The State has in good faith submitted such water quality 
standards and the Regional Administrator has failed to act on them 
within 120 days of receipt;
    (b) The grant assistance is for the construction of non-discharging 
land treatment or containment ponds; or
    (c) The grant assistance is a State program grant awarded under 
section 205(g) or 205(j) of the Act.

[50 FR 45895, Nov. 4, 1985]



Sec. 35.2112  Marine discharge waiver applicants.

    If the applicant is also an applicant for a secondary treatment 
requirement waiver under section 301(h) of the Act, a plan must be 
submitted which contains a modified scope of work, a schedule for 
completion of the less-than-secondary facility and an estimate of costs 
providing for building the proposed less-than-secondary facilities, 
including provisions for possible future additions of treatment 
processes or techniques to meet secondary treatment requirements.



Sec. 35.2113  Environmental review.

    (a) The environmental review required by part 6 of this chapter must 
be completed before submission of any application. The potential 
applicant should work with the State and EPA as early as possible in the 
facilities planning process to determine if the project qualifies for a 
categorical exclusion from part 6 requirements, or whether a finding of 
no significant impact or an environmental impact statement is required.
    (b) In conjunction with the facilities planning process as described 
in Sec. 35.2030(c), a potential applicant may request, in writing, that 
EPA make a formal determination under part 6 of this chapter.



Sec. 35.2114  Value engineering.

    (a) If the project has not received Step 2 grant assistance the 
applicant shall conduct value engineering if the total estimated cost of 
building the treatment works is more than $10 million.
    (b) The value engineering recommendations shall be implemented to 
the maximum extent feasible.

(Approved by the Office of Management and Budget under control number 
2040-0027)



Sec. 35.2116  Collection system.

    Except as provided in Sec. 35.2032(c), if the project involves 
collection system work, such work:
    (a) Shall be for the replacement or major rehabilitation of an 
existing collection system which was not build with Federal funds 
awarded on or after October 18, 1972, and shall be necessary to the 
integrity and performance of the complete waste treatment system; or
    (b) Shall be for a new cost-effective collection system in a 
community in existence on October 18, 1972, which has sufficient 
existing or planned capacity to adequately treat such collected 
wastewater and where the bulk (generally two-thirds) of the expected 
flow (flow from existing plus future residential users) will be from the 
resident population on October 18, 1972. The expected flow will be 
subject to the limitations for interceptors contained in Sec. 35.2123. 
If assistance is awarded, the grantee shall provide assurances that the 
existing population will connect to the collection system within a 
reasonable time after project completion.



Sec. 35.2118  Preaward costs.

    (a) EPA will not award grant assistance for Step 2+3 and Step 3 work 
performed before award of grant assistance for that project, except:
    (1) In emergencies or instances where delay could result in 
significant cost increases, the Regional Administrator may approve 
preliminary building work (such as procurement of major equipment 
requiring long lead times,

[[Page 549]]

field testing of innovative and alternative technologies, minor sewer 
rehabilitation, acquisition of eligible land or an option for the 
purchase of eligible land or advance building on minor portions of 
treatment works) after completion of the environmental review as 
required by Sec. 35.2113.
    (2) If the Regional Administrator approves preliminary Step 3 work, 
such approval is not an actual or implied commitment of grant assistance 
and the applicant proceeds at its own risk.
    (b) Any procurement is subject to the requirements of 40 CFR part 
33, and in the case of acquisition of eligible real property, 40 CFR 
part 4.

(Approved by the Office of Management and Budget under control number 
2040-0027)

[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27097, June 29, 1990]



Sec. 35.2120  Infiltration/Inflow.

    (a) General. The applicant shall demonstrate to the Regional 
Administrator's satisfaction that each sewer system discharging into the 
proposed treatment works project is not or will not be subject to 
excessive infiltration/inflow. For combined sewers, inflow is not 
considered excessive in any event.
    (b) Inflow. If the rainfall induced peak inflow rate results or will 
result in chronic operational problems during storm events, or the 
rainfall-induced total flow rate exceeds 275 gpcd during storm events, 
the applicant shall perform a study of the sewer system to determine the 
quantity of excessive inflow and to propose a rehabilitation program to 
eliminate the excessive inflow. All cases in which facilities are 
planned for the specific storage and/or treatment of inflow shall be 
subject to a cost-effectiveness analysis.
    (c) Infiltration. (1) If the flow rate at the existing treatment 
facility is 120 gallons per capita per day or less during periods of 
high groundwater, the applicant shall build the project including 
sufficient capacity to transport and treat any existing infiltration. 
However, if the applicant believes any specific portion of its sewer 
system is subject to excessive infiltration, the applicant may confirm 
its belief in a cost-effectiveness analysis and propose a sewer 
rehabilitation program to eliminate that specific excessive 
infiltration.
    (2) If the flow rate at the existing treatment facility is more than 
120 gallons per capita per day during periods of high groundwater, the 
applicant shall either:
    (i) Perform a study of the sewer system to determine the quantity of 
excessive infiltration and to propose a sewer rehabilitation program to 
eliminate the excessive infiltration; or
    (ii) If the flow rate is not significantly more than 120 gallons per 
capita per day, request the Regional Administrator to determine that he 
may proceed without further study, in which case the allowable project 
cost will be limited to the cost of a project with a capacity of 120 
gallons per capita per day under Appendix A.G.2.a.

(Approved by the Office of Management and Budget under control number 
2040-0027)

[49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45895, Nov. 4, 1985]



Sec. 35.2122  Approval of user charge system and proposed sewer use ordinance.

    If the project is for Step 3 grant assistance, unless it is solely 
for acquisition of eligible land, the applicant must obtain the Regional 
Administrator's approval of its user charge system (Sec. 35.2140) and 
proposed (or existing) sewer use ordinance Sec. 35.2130). If the 
applicant has a sewer use ordinance or user charge system in affect, the 
applicant shall demonstrate to the Regional Administrator's satisfaction 
that they meet the requirements of this part and are being enforced.

(Approved by the Office of Management and Budget under control number 
2040-0027)



Sec. 35.2123  Reserve capacity.

    EPA will limit grant assistance for reserve capacity as follows:
    (a) If EPA awarded a grant for a Step 3 interceptor segment before 
December 29, 1981, EPA may award grants for remaining interceptor 
segments included in the facilities plan with reserve capacity as 
planned, up to 40 years.
    (b) Except as provided in paragraph (a) of this section, if EPA 
awards a grant for a Step 3 or Step 3 segment of a primary, secondary, 
or advanced treatment facility or its interceptors

[[Page 550]]

included in the facilities plan before October 1, 1984, the grant for 
that Step 3 or Step 3 segment, and any remaining segments, may include 
20 years reserve capacity.
    (c) Except as provided in paragraph (b) of this section, after 
September 30, 1984, no grant shall be made to provide reserve capacity 
for a project for secondary treatment or more stringent treatment or new 
interceptors and appurtenances. Grants for such projects shall be based 
on capacity necessary to serve existing needs (including existing needs 
of residential, commercial, industrial, and other users) as determined 
on the date of the approval of the Step 3 grant. Grant assistance 
awarded after September 30, 1990 shall be limited to the needs existing 
on September 30, 1990.
    (d) For any application with capacity in excess of that provided by 
this section:
    (1) All incremental costs shall be paid by the applicant. 
Incremental costs include all costs which would not have been incurred 
but for the additional excess capacity, i.e., any cost in addition to 
the most cost-effective alternative with eligible reserve capacity 
described under paragraphs (a) and (b) of this section.
    (2) It must be determined that the actual treatment works to be 
built meets the requirements of the National Environmental Policy Act 
and all applicable laws and regulations.
    (3) The Regional Administrator shall approve the plans, 
specifications and estimates for the actual treatment works.
    (4) The grantee shall assure the Regional Administrator 
satisfactorily that it has assessed the costs and financial impacts of 
the actual treatment works and has the capability to finance and manage 
their construction and operation.
    (5) The grantee must implement a user charge system which applies to 
the entire service area of the grantee.
    (6) The grantee shall execute appropriate grant conditions or 
releases protecting the Federal Government from any claim for any of the 
costs of construction due to the additional capacity.



Sec. 35.2125  Treatment of wastewater from industrial users.

    (a) Grant assistance shall not be provided for a project unless the 
project is included in a complete waste treatment system and the 
principal purpose of both the project and the system is for the 
treatment of domestic wastewater of the entire community, area, region 
or district concerned.
    (b) Allowable project costs do not include:
    (1) Costs of interceptor or collector sewers constructed 
exclusively, or almost exclusively, to serve industrial users; or
    (2) Costs for control or removal of pollutants in wastewater 
introduced into the treatment works by industrial users, unless the 
applicant is required to remove such pollutants introduced from 
nonindustrial users.



Sec. 35.2127  Federal facilities.

    Grant assistance shall not be provided for costs to transport or 
treat wastewater produced by a facility that is owned and operated by 
the Federal Government which contributes more than 250,000 gallons per 
day or 5 percent of the design flow of the complete waste treatment 
system, whichever is less.

(Approved by the Office of Management and Budget under control number 
2040-0027)



Sec. 35.2130  Sewer use ordinance.

    The sewer use ordinance (see also Sec. Sec. 35.2122 and 35.2208) or 
other legally binding document shall prohibit any new connections from 
inflow sources into the treatment works and require that new sewers and 
connections to the treatment works are properly designed and 
constructed. The ordinance or other legally binding document shall also 
require that all wastewater introduced into the treatment works not 
contain toxics or other pollutants in amounts or concentrations that 
endanger public safety and physical integrity of the treatment works; 
cause violation of effluent or water quality limitations; or preclude 
the selection of the most cost-effective alternative for

[[Page 551]]

wastewater treatment and sludge disposal.

(Approved by the Office of Management and Budget under control number 
2040-0027)



Sec. 35.2140  User charge system.

    The user charge system (see Sec. Sec. 35.2122 and 35.2208) must be 
designed to produce adequate revenues required for operation and 
maintenance (including replacement). It shall provide that each user 
which discharges pollutants that cause an increase in the cost of 
managing the effluent or sludge from the treatment works shall pay for 
such increased cost. The user charge system shall be based on either 
actual use under paragraph (a) of this section, ad valorem taxes under 
paragraph (b) of this section, or a combination of the two.
    (a) User charge system based on actual use. A grantee's user charge 
system based on actual use (or estimated use) of wastewater treatment 
services shall provide that each user (or user class) pays its 
proportionate share of operation and maintenance (including replacement) 
costs of treatment works within the grantee's service area, based on the 
user's proportionate contribution to the total wastewater loading from 
all users (or user classes).
    (b) User charge system based on ad valorem taxes. A grantee's user 
charge system which is based on ad valorem taxes may be approved if:
    (1) On December 27, 1977, the grantee had in existence a system of 
dedicated ad valorem taxes which collected revenues to pay the cost of 
operation and maintenance of wastewater treatment works within the 
grantee's service area and the grantee has continued to use that system;
    (2) The ad valorem user charge system distributes the operation and 
maintenance (including replacement) costs for all treatment works in the 
grantee's jurisdiction to the residential and small non-residential user 
class (including at the grantee's option nonresidential, commercial and 
industrial users that introduce no more than the equivalent of 25,000 
gallons per day of domestic sanitary wastes to the treatment works), in 
proportion to the use of the treatment works by this class; and
    (3) Each member of the industrial user and commercial user class 
which discharges more than 25,000 gallons per day of sanitary waste pays 
its share of the costs of operation and maintenance (including 
replacement) of the treatment works based upon charges for actual use.
    (c) Notification. Each user charge system must provide that each 
user be notified, at least annually, in conjunction with a regular bill 
(or other means acceptable to the Regional Administrator), of the rate 
and that portion of the user charges or ad valorem taxes which are 
attributable to wastewater treatment services.
    (d) Financial management system. Each user charge system must 
include an adequate financial management system that will accurately 
account for revenues generated by the system and expenditures for 
operation and maintenance (including replacement) of the treatment 
system, based on an adequate budget identifying the basis for 
determining the annual operation and maintenance costs and the costs of 
personnel, material, energy and administration.
    (e) Charges for operation and maintenance for extraneous flows. The 
user charge system shall provide that the costs of operation and 
maintenance for all flow not directly attributable to users (i.e., 
infiltration/inflow) be distributed among all users based upon either of 
the following:
    (1) In the same manner that it distributes the costs for their 
actual use, or
    (2) Under a system which uses one or any combination of the 
following factors on a reasonable basis:
    (i) Flow volume of the users;
    (ii) Land area of the users;
    (iii) Number of hookups or discharges of the users;
    (iv) Property valuation of the users, if the grantee has an approved 
user charge system based on ad valorem taxes.
    (f) After completion of building a project, revenue from the project 
(e.g., sale of a treatment-related by-product; lease of the land; or 
sale of crops grown on the land purchased under the grant agreement) 
shall be used to offset the costs of operation and maintenance.

[[Page 552]]

The grantee shall proportionately reduce all user charges.
    (g) Adoption of system. One or more municipal legislative enactments 
or other appropriate authority must incorporate the user charge system. 
If the project accepts wastewater from other municipalities, the 
subscribers receiving waste treatment services from the grantee shall 
adopt user charge systems in accordance with this section. These user 
charge systems shall also be incorporated in appropriate municipal 
legislative enactments or other appropriate authority of all 
municipalities contributing wastes to the treatment works.
    (h) Inconsistent agreements. The user charge system shall take 
precedence over any terms or conditions of agreements or contracts which 
are inconsistent with the requirements of section 204(b)(1)(A) of the 
Act and this section.
    (i) Low income residential user rates. (1) Grantees may establish 
lower user charge rates for low income residential users after providing 
for public notice and hearing. A low income residential user is any 
residence with a household income below the Federal poverty level as 
defined in 45 CFR 1060.2 or any residence designated as low income under 
State law or regulation.
    (2) Any lower user charge rate for low income residential users must 
be defined as a uniform percentage of the user charge rate charged other 
residential users.
    (3) The costs of any user charge reductions afforded a low income 
residential class must be proportionately absorbed by all other user 
classes. The total revenue for operation and maintenance (including 
equipment replacement) of the facilities must not be reduced as a result 
of establishing a low income residential user class.
(Approved by the Office of Management and Budget under control number 
2040-0027)
[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27097, June 29, 1990]



Sec. 35.2152  Federal share.

    (a) General. The Federal share for each project shall be based on 
the sum of the total Step 3 or Step 7 allowable costs and the allowance 
established in the grant agreement under appendix B. Except as provided 
elsewhere in this section, the Federal share shall be:
    (1) 75 percent for grant assistance awarded before October 1, 1984;
    (2) 55 percent for grant assistance awarded after September 30, 
1984, except as provided in paragraph (a)(3) of this section; and
    (3) Subject to paragraphs (c) and (d) of this section, 75 percent 
for grant assistance awarded after September 30, 1984 and before October 
1, 1990, for sequential phases or segments of a primary, secondary, or 
advanced treatment facility or its interceptors, or infiltration/inflow 
correction provided:
    (i) The treatment works being phased or segmented is described in a 
facilities plan approved by the Regional Administrator before October 1, 
1984;
    (ii) The Step 3 grant for the initial phase or segment of the 
treatment works described in (a)(3)(i) of this section is awarded prior 
to October 1, 1984; and
    (iii) The phase or segment that receives 75 percent funding is 
necessary to (A) make a phase or segment previously funded by EPA 
operational and comply with the enforceable requirements of the Act, or 
(B) complete the treatment works referenced in (a)(3)(i) of this section 
provided that all phases or segments previously funded by EPA are 
operational and comply with the enforceable requirements of the Act.
    (b) Innovative and alternative technology. In accordance with 
Sec. 35.2032, the Federal share for eligible treatment works or unit 
processes and techniques that the Regional Administrator determines meet 
the definition of innovative or alternative technology shall be 20 
percent greater than the Federal share under paragraph (a) or (c) of 
this section, but in no event shall the total Federal share be greater 
than 85 percent. This increased Federal share depends on the 
availability of funds from the reserve under Sec. 35.2020. The 
proportional State contribution to the non-Federal share of building 
costs for I/A projects must be the same as or greater than the 
proportional State contribution (if any) to the non-Federal share of 
eligible building costs for all treatment works which receive 75 or 55 
percent grants or such other Federal share

[[Page 553]]

under paragraph (c) of this section in the State.
    (c) A project for which an application for grant assistance has been 
made before October 1, 1984, but which was under judicial injunction at 
that time prohibiting its construction, shall be eligible for a grant at 
75 percent of the cost of its construction.
    (d) Uniform lower Federal share. (1) Except as provided in 
Sec. 35.2032 (c) and (d) of this section, the Governor of a State may 
request the Regional Administrator's approval to revise uniformly 
throughout the State the Federal share of grant assistance for all 
future projects. The revised Federal share must apply to all needs 
categories (see Sec. 35.2015(b)(2)).
    (2) After EPA awards grant assistance for a project, the Federal 
share shall be the same for any grant increase that is within the scope 
of the project.
    (3) The uniform lower Federal share established by the Governor does 
not apply to projects funded under Sec. 35.2024(b).
    (e) Training facilities. The Federal share of treatment works 
required to train and upgrade waste treatment works operations and 
maintenance personnel may be up to 100 percent of the allowable cost of 
the project.
    (1) Where a grant is made to serve two or more States, the 
Administrator is authorized to make an additional grant for a 
supplemental facility in each State. The Federal funds awarded to any 
State under section 109(b) for all training facilities shall not exceed 
$500,000.
    (2) Any grantee who received a grant under section 109(b) before 
December 27, 1977, may have the grant increased up to $500,000 by funds 
made available under the Act, not to exceed 100 percent of the allowable 
costs.

(Approved by the Office of Management and Budget under control number 
2040-0027)

[49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45896, Nov. 4, 1985; 55 
FR 27097, June 29, 1990]



Sec. 35.2200  Grant conditions.

    In addition to the EPA General Grant Conditions (part 30 of this 
subchapter), each treatment works grant shall be subject to the 
conditions under Sec. Sec. 35.2202 through 35.2218.



Sec. 35.2202  Step 2+3 projects.

    (a) Prior to initiating action to acquire eligible real property, a 
Step 2+3 grantee shall submit for Regional Administrator review and 
written approval the information required under Sec. 35.2040(b)(7).
    (b) Before initiating procurement action for the building of the 
project, a Step 2+3 grantee shall submit for the Regional 
Administrator's review and written approval the information required 
under Sec. Sec. 35.2040(b) (5) and (6), 35.2106, 35.2107, 35.2130 and 
35.2140.



Sec. 35.2203  Step 7 projects.

    (a) Prior to initiating action to acquire real property, a Step 7 
grantee shall submit for Regional Administrator review and written 
approval the information required under Sec. 35.2040(b)(7).
    (b) Before approving a Step 7 grant amendment under Sec. 25.2036, 
the Regional Administrator shall determine that the applicant and its 
project have met the requirements of Sec. Sec. 35.2040(b)(6) and (g), 
35.2106, 35.2107, and 35.2122.

[55 FR 27097, June 29, 1990]



Sec. 35.2204  Project changes.

    (a) Minor changes in the project work that are consistent with the 
objectives of the project and within the scope of the grant agreement do 
not require the execution of a formal grant amendment before the 
grantee's implementation of the change. However, the amount of the 
funding provided by the grant agreement may only be increased by a 
formal grant amendment.
    (b) The grantee must receive from the Regional Administrator a 
formal grant amendment before implementing changes which:
    (1) Alter the project performance standards;
    (2) Alter the type of wastewater treatment provided by the project;
    (3) Significantly delay or accelerate the project schedule;
    (4) Substantially alter the facilities plan, design drawings and 
specifications, or the location, size, capacity, or

[[Page 554]]

quality of any major part of the project; or
    (5) Otherwise require a formal grant amendment under part 30 of this 
subchapter.
    (c) Notwithstanding paragraph (a) of this section, changes to Step 7 
projects cannot increase the amount of EPA assistance established at the 
time of the grant amendment.

[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27097, June 29, 1990]



Sec. 35.2205  Maximum allowable project cost.

    (a) Grants awarded on or after the effective date of this 
regulation. Except as provided in paragraph (c) of this section, for 
Step 2+3 or Step 3 grants awarded on or after the effective date of this 
regulation, the maximum allowable project cost will be the sum of:
    (1) The allowable cost of the following:
    (i) The initial award amount of all project subagreements between 
the grantee and its contractors;
    (ii) The initial amounts approved for force account work to be 
performed on the project;
    (iii) The purchase price of eligible real property; and
    (iv) The initial amount approved for project costs not included 
under paragraphs (a)(1)(i) through (a)(1)(iii) of this section, 
excluding any amounts approved for an allowance under Sec. 35.2025 and 
for contingencies; and
    (2) Five percent of the sum of the amounts included under paragraphs 
(a)(1)(i) through (a)(1)(iv) of this section.
    (b) Grants awarded before the effective date of the regulation. 
Except as provided in paragraph (c) of this section, for Step 2+3 or 
Step 3 grants awarded before the effective date of this regulation, the 
maximum allowable increase in the cost for work covered by each 
subagreement finally advertised or, where there will be no 
advertisement, each subagreement awarded on or after the effective date 
of this regulation will be five percent of the initial award amount of 
the subagreement.
    (c) Differing site conditions. In determining whether the maximum 
allowable project cost or increase in subagreement cost will be 
exceeded, costs of equitable adjustments for differing site conditions 
will be exempt, provided the requirements of 40 CFR part 35, subpart I, 
Appendix A, paragraph A.1.g. and all other applicable laws and 
regulations have been met.

[50 FR 46649, Nov. 12, 1985]



Sec. 35.2206  Operation and maintenance.

    (a) The grantee must assure economical and effective operation and 
maintenance (including replacement) of the treatment works.
    (b) Except as provided in paragraphs (c) (1) and (2) of this 
section, the Regional Administrator shall not pay more than 50 percent 
of the Federal share of any project unless the grantee has furnished and 
the Regional Administrator has approved the final plan of operation 
required by Sec. 35.2106, and shall not pay more than 90 percent of the 
Federal share of any project unless the grantee has furnished and the 
Regional Administrator has approved an operation and maintenance manual.
    (c)(1) In projects where segmenting of a proposed treatment works 
has occurred, the Regional Administrator shall not pay more than 90 
percent of the Federal share of the total allowable costs of the 
proposed treatment works until the grantee has furnished and the 
Regional Administrator has approved an operation and maintenance manual.
    (2) In projects where a component is placed in operation before 
completion of the entire project, the Regional Administrator shall not 
make any additional payment on that project until a final operation and 
maintenance manual for the operating component is furnished and 
approved.

(Approved by the Office of Management and Budget under control number 
2040-0027)



Sec. 35.2208  Adoption of sewer use ordinance and user charge system.

    The grantee shall adopt its sewer use ordinance and implement its 
user charge system developed under Sec. Sec. 35.2130 and 35.2140 before 
the treatment works is placed in operation. Further, the grantee shall 
implement the user charge system and sewer use ordinance for the useful 
life of the treatment works.

[[Page 555]]



Sec. 35.2210  Land acquisition.

    The grantee shall not acquire real property determined allowable for 
grant assistance until the Regional Administrator has determined that 
applicable provisions of 40 CFR part 4 have been met.



Sec. 35.2211  Field testing for Innovative and Alternative Technology Report.

    The grantee shall submit a report containing the procedure, cost, 
results and conclusions of any field testing. The report shall be 
submitted to the Regional Administrator in accordance with a schedule to 
be specified in the grant agreement.

(Approved by the Office of Management and Budget under control number 
2040-0027)



Sec. 35.2212  Project initiation.

    (a) The grantee shall expeditiously initiate and complete the 
project, in accordance with the project schedule contained in the grant 
application and agreement. Failure to promptly initiate and complete a 
project may result in the imposition of sanctions under part 30 of this 
chapter.
    (b) The grantee shall initiate procurement action for building the 
project promptly after award of a Step 3 grant or, after receiving 
written approval of the information required under Sec. 35.2202 under a 
Step 2+3 grant or, for a Step 7 project, after completing the facilities 
plan and the preparation of a pre-bid package that is sufficiently 
detailed to insure that the bids received form the design/build work 
will be complete, accurate, comparable and will result in a cost-
effective operable facility. Public notice of proposed procurement 
action should be made promptly after Step 3 award or after final 
approvals for a Step 2+3 grant under Sec. 35.2202, or after completing 
the pre-bid package for the Step 7 award. The grantee shall award the 
subagreement(s) and issue notice(s) to proceed, where required, for 
building all significant elements of the project within twelve months of 
the Step 3 award or final Step 2+3 approvals.
    (c) Failure to promptly award all subagreement(s) for building the 
project will result in a limitation on allowable costs. (See Appendixes 
A, A.2.e.).
    (d) The grantee shall notify the Regional Administrator immediately 
upon award of the subagreement(s) for building all significant elements 
of the project (see 40 CFR 33.211).

(Approved by the Office of Management and Budget under control number 
2040-0027)

[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27097, June 29, 1990]



Sec. 35.2214  Grantee responsibilities.

    (a) The grantee shall complete the project in accordance with the 
grant agreement including: The facilities plan that establishes the need 
for the project; the design drawings and specifications; the plan of 
operation under Sec. 35.2106 that identifies the basis to determine 
annual operating costs; the financial management system under 
Sec. 35.2140(d) that adequately accounts for revenues and expenditures; 
the user charge system under Sec. 35.2140 that will generate sufficient 
revenue to operate and maintain the treatment works; the project 
schedule; and all other applicable regulations. The grantee shall 
maintain and operate the project to meet project performance standards 
including the enforceable requirements of the Act for the design life.
    (b) The grantee shall provide the architectural and engineering 
services and other services necessary to fulfill the obligation in 
paragraph (a) of this section.



Sec. 35.2216  Notice of building completion and final inspection.

    The grantee shall notify the Regional Administrator when the 
building of the project is complete. Final inspection shall be made by 
the Regional Administrator after receipt of the notice of building 
completion.

(Approved by the Office of Management and Budget under control number 
2040-0027)



Sec. 35.2218  Project performance.

    (a) The grantee shall notify the Regional Administrator in writing 
of the actual date of initiation of operation.
    (b) Subject to the provisions of 40 CFR part 33, the grantee shall 
select

[[Page 556]]

the engineer or engineering firm principally responsible for either 
supervising construction or providing architectural and engineering 
services during construction as the prime engineer to provide the 
following services during the first year following the initiation of 
operation:
    (1) Direct the operation of the project and revise the operation and 
maintenance manual as necessary to accommodate actual operating 
experience;
    (2) Train or provide for training of operating personnel and prepare 
curricula and training material for operating personnel; and
    (3) Advise the grantee whether the project is meeting the project 
performance standards.
    (c) On the date one year after the initiation of operation of the 
project, the grantee shall certify to the Regional Administrator whether 
the project meets the project performance standards. If the Regional 
Administrator or the grantee concludes that the project does not meet 
the project performance standards, the grantee shall submit the 
following:
    (1) A corrective action report which includes an analysis of the 
cause of the project's failure to meet the performance standards 
(including the quantity of infiltration/inflow proposed to be 
eliminated), and an estimate of the nature, scope and cost of the 
corrective action necessary to bring the project into compliance;
    (2) The schedule for undertaking in a timely manner the corrective 
action necessary to bring the project into compliance; and
    (3) The scheduled date for certifying to the Regional Administrator 
that the project is meeting the project performance standards.
    (d) Except as provided in Sec. 35.2032(c) the grantee shall take 
corrective action necessary to bring a project into compliance with the 
project performance standards at its own expense. This limitation on 
Federal funding for corrective actions does not apply to training funds 
under section 104(g)(1) of the Act.
    (e) Nothing in this section:
    (1) Prohibits a grantee from requiring more assurances, guarantees, 
or indemnity or other contractual requirements from any party performing 
project work; or
    (2) Affects EPA's right to take remedial action, including 
enforcement, against a grantee that fails to carry out its obligations 
under Sec. 35.2214.

(Approved by the Office of Management and Budget under control number 
2040-0027)

[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27098, June 29, 1990]



Sec. 35.2250  Determination of allowable costs.

    The Regional Administrator will determine the allowable costs of the 
project based on applicable provisions of laws and regulations, the 
scope of the approved project, Sec. 30.705 of this subchapter, and 
Appendix A of this subpart.



Sec. 35.2260  Advance purchase of eligible land.

    In the case of grant assistance awarded solely for the acquisition 
of eligible land, the following provisions are deferred until the award 
of the ensuing Step 3 assistance for the building of facilities: 
Sec. Sec. 35.2105, 35.2130, 35.2140, 35.2206 and 35.2208.



Sec. 35.2262  Funding of field testing.

    In the case of grant assistance for field testing of innovative or 
alternative wastewater process and techniques, the following provisions 
are deferred until the award of assistance for building the approved 
facilities: Sec. Sec. 35.2105, 35.2106, 35.2122, 35.2130, 35.2140, 
35.2206, and 35.2208.



Sec. 35.2300  Grant payments.

    Except as provided in Sec. 35.2206, the Regional Administrator shall 
pay the Federal share of the allowance under Sec. 35.2025 and the 
allowable project costs incurred to date and currently due and payable 
by the grantee, as certified in the grantee's most recent payment 
request.
    (a) Adjustment. The Regional Administrator may at any time review 
and audit requests for payment and payments and make appropriate 
adjustments as provided in part 30 of this chapter.
    (b) Refunds, rebates and credits. The Federal share of any refunds, 
rebates, credits, or other amounts (including

[[Page 557]]

any interest) that accrue to or are received by the grantee for the 
project, and that are properly allocable to costs for which the grantee 
has been paid under a grant, must be credited to the current State 
allotment or paid to the United States. Examples include rebates for 
prompt payment and sales tax refunds. Reasonable expenses incurred by 
the grantee securing such refunds, rebates, credits, or other amounts 
shall be allowable under the grant when approved by the Regional 
Administrator.
    (c) Release. By its acceptance of final payment, the grantee 
releases and discharges the United States, its officers, agents, and 
employees from all liabilities, obligations, and claims arising out of 
the project work or under the grant, subject only to exceptions 
previously specified in writing between the Regional Administrator and 
the grantee.
    (d) Payment of costs incurred under the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act. Notwithstanding 
the provisions of the introductory paragraph of this section, if the 
Regional Administrator determines it is necessary for the expeditious 
completion of a project, he may make advance payment after grant award 
for the Federal share of the eligible cost of any payment of relocation 
assistance under Sec. 4.502(c) of this chapter by the grantee. The 
requirements in part 30 of this subchapter apply to any advances of 
funds for assistance payments.
    (e) Payment under grants to States for advances of allowance--(1) 
Advance payment to State. Notwithstanding the provisions of the 
introductory paragraph of this section, the Regional Administrator, 
under a State grant for advances of allowance (see Sec. 35.2025), may 
make payments on an advance or letter-of-credit payment method in 
accordance with the requirements under part 30 of this chapter. The 
State and the Regional Administrator shall agree to the payment terms.
    (2) Assignment. If the State chooses to assign its payments to a 
potential grant applicant, it shall execute an agreement with the 
potential grant applicant authorizing direct payment from EPA and 
establishing appropriate terms for payment. The State shall provide a 
copy of the agreement to EPA.
    (f) Design/build projects. For design/build projects, the Regional 
Administrator shall not pay more than 95 percent of the grant amount 
until completion of building and the RA's final project approval (see 
Sec. 35.2036(a)(6)).

(Approved by the Office of Management and Budget under control number 
2040-0027)

[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27098, June 29, 1990]



Sec. 35.2350  Subagreement enforcement.

    (a) Regional Administrator authority. At the grantee's request the 
Regional Administrator may provide technical and legal assistance in the 
administration and enforcement of any subagreement related to treatment 
works for which an EPA grant was made and to intervene in any civil 
action involving the enforcement of such subagreements, including 
subagreement disputes which are the subject of either arbitration or 
court action.
    (b) Privity of subagreement. The Regional Administrator's technical 
or legal involvement in any subagreement dispute will not make EPA a 
party to any subagreement entered into by the grantee.
    (c) Grantee responsibilities. The provision of technical or legal 
assistance under this section in no way releases the grantee from its 
obligations under Sec. 35.2214, or affects EPA's right to take remedial 
action, including enforcement, against a grantee that fails to carry out 
those obligations.

              Appendix A--Determination of Allowable Costs

    (a) Purpose. The information in this appendix represents Agency 
policies and procedures for determining the allowability of project 
costs based on the Clean Water Act, EPA policy, appropriate Federal cost 
principles under part 30 of this subchapter and reasonableness.
    (b) Applicability. This cost information applies to grant assistance 
awarded on or after the effective date of this regulation. Project cost 
determinations under this subpart are not limited to the items listed in 
this appendix. Additional cost determinations based on applicable law 
and regulations must of course be made on a project-by-project basis. 
Those cost items not previously included in program requirements are not 
mandatory for

[[Page 558]]

decisions under grants awarded before the effective date. They are only 
to be used as guidance in those cases.

                    A. Costs Related to Subagreements

    1. Allowable costs related to sub- agreements include:
    a. The costs of subagreements for building the project.
    b. The costs of complying with the procurement requirements of part 
33 of this subchapter, other than the costs of self-certification under 
Sec. 33.110.
    c. The cost of legal and engineering services incurred by grantees 
in deciding procurement protests and defending their decisions in 
protest appeals under subpart G of 40 CFR part 33.
    d. The costs for establishing or using minority and women's business 
liaison services.
    e. The costs of services incurred during the building of a project 
to ensure that it is built in conformance with the design drawings and 
specifications.
    f. The costs (including legal, technical, and administrative costs) 
of assessing the merits of or negotiating the settlement of a claim by 
or against a grantee under a subagreement provided:
    (1) The claim arises from work within the scope of the grant;
    (2) A formal grant amendment is executed specifically covering the 
costs before they are incurred;
    (3) The costs are not incurred to prepare documentation that should 
be prepared by the contractor to support a claim against the grantee; 
and
    (4) The Regional Administrator determines that there is a 
significant Federal interest in the issues involved in the claim.
    g. Change orders and the costs of meritorious contractor claims for 
increased costs under subagreements as follows:
    (1) Change orders and the costs of meritorious contractor claims 
provided the costs are:
    (i) Within the scope of the project;
    (ii) Not caused by the grantee's mismanagement; and
    (iii) Not caused by the grantee's vicarious liability for the 
improper actions of others.
    (2) Provided the requirements of paragraph g(1) are met, the 
following are examples of allowable change orders and contractor claim 
costs:
    (i) Building costs resulting from defects in the plans, design 
drawings and specifications, or other subagreement documents only to the 
extent that the costs would have been incurred if the subagreement 
documents on which the bids were based had been free of the defects, and 
excluding the costs of any rework, delay, acceleration, or disruption 
caused by such defects;
    (ii) Costs of equitable adjustments under Clause 4, Differing Site 
Conditions, of the model subagreement clauses required under 
Sec. 33.1030 of this Subchapter.
    (3) Settlements, arbitration awards, and court judgments which 
resolve contractor claims shall be reviewed by the grant award official 
and shall be allowable only to the extent that they meet the 
requirements of paragraph g(1), are reasonable, and do not attempt to 
pass on to EPA the cost of events that were the responsibility of the 
grantee, the contractor, or others.
    h. The costs of the services of the prime engineer required by 
Sec. 35.2218 during the first year following initiation of operation of 
the project.
    i. The cost of development of a plan of operation including an 
operation and maintenance manual required by Sec. 35.2106.
    j. Start-up services for onsite training of operating personnel in 
operation and control of specific treatment processes, laboratory 
procedures, and maintenance and records management.
    k. The specific and unique costs of field testing an innovative or 
alternative process or technique, which may include equipment leasing 
costs, personnel costs, and utility costs necessary for constructing, 
conducting, and reporting the results of the field test.
    2. Unallowable costs related to sub- agreements include:
    a. The costs of architectural or engineering services incurred in 
preparing a facilities plan and the design drawings and specifications 
for a project. This provision does not apply to planning and design 
costs incurred in the modification or replacement of an innovative or 
alternative project funded under Sec. 35.2032(c).
    b. Except as provided in 1.g. above, architectural or engineering 
services or other services necessary to correct defects in a facilities 
plan, design drawings and specifications, or other subagreement 
documents.
    c. The costs (including legal, technical and administrative) of 
defending against a contractor claim for increased costs under a 
subagreement or of prosecuting a claim to enforce any subagreement 
unless:
    (1) The claim arises from work within the scope of the grant;
    (2) A formal grant amendment is executed specifically covering the 
costs before they are incurred;
    (3) The claim cannot be settled without arbitration or litigation;
    (4) The claim does not result from the grantee's mismanagement;
    (5) The Regional Administrator determines that there is a 
significant Federal interest in the issues involved in the claim; and
    (6) In the case of defending against a contractor claim, the claim 
does not result from the grantee's responsibility for the improper 
action of others.

[[Page 559]]

    d. Bonus payments, not legally required, for completion of building 
before a contractual completion date.
    e. All incremental costs due to the award of any subagreements for 
building significant elements of the project more than 12 months after 
the Step 3 grant award or final Step 2+3 approvals unless specified in 
the project schedule approved by the Regional Administrator at the time 
of grant award.

                              B. Mitigation

    1. Allowable costs include:
    a. Costs necessary to mitigate only direct, adverse, physical 
impacts resulting from building of the treatment works.
    b. The costs of site screening necessary to comply with NEPA related 
studies and facilities plans, or necessary to screen adjacent 
properties.
    c. The cost of groundwater monitoring facilities necessary to 
determine the possibility of groundwater deterioration, depletion or 
modification resulting from building the project.
    2. Unallowable costs include:
    a. The costs of solutions to aesthetic problems, including design 
details which require expensive building techniques and architectural 
features and hardware, that are unreasonable or substantially higher in 
cost than approvable alternatives and that neither enhance the function 
or appearance of the treatment works nor reflect regional architectural 
tradition.
    b. The cost of land acquired for the mitigation of adverse 
environmental effects identified pursuant to an environmental review 
under NEPA.

         C. Privately or Publicly Owned Small and Onsite Systems

    1. Allowable costs for small and onsite systems serving residences 
and small commercial establishments inhabited on or before December 27, 
1977, include a. through e. below. Alternatively, the two-thirds rule at 
40 CFR Sec. 35.2116(b) may be used to determine allowable residential 
flows to be served by publicly owned small and alternative wastewater 
systems, including a. through e. below:
    a. The cost of major rehabilitation, upgrading, enlarging and 
installing small and onsite systems, but in the case of privately owned 
systems, only for principal residences.
    b. Conveyance pipes from property line to offsite treatment unit 
which serves a cluster of buildings.
    c. Treatment and treatment residue disposal portions of toilets with 
composting tanks, oil flush mechanisms, or similar in-house devices.
    d. Treatment or pumping units from the incoming flange when located 
on private property and conveyance pipes, if any, to the collector 
sewer.
    e. The cost of restoring individual system building sites to their 
original condition.
    2. Unallowable costs for small and onsite systems include:
    a. Modification to physical structure of homes or commercial 
establishments.
    b. Conveyance pipes from the house to the treatment unit located on 
user's property or from the house to the property line if the treatment 
unit is not located on that user's property.
    c. Wastewater generating fixtures such as commodes, sinks, tubs, and 
drains.

                            D. Real Property

    1. Allowable costs for land and rights-of-way include:
    a. The cost (including associated legal, administrative and 
engineering costs) of land acquired in fee simple or by lease or 
easement under grants awarded after October 17, 1972, that will be an 
integral part of the treatment process or that will be used for the 
ultimate disposal of residues resulting from such treatment provided the 
Regional Administrator approves it in the grant agreement. These costs 
include:
    (1) The cost of a reasonable amount of land, considering 
irregularities in application patterns, and the need for buffer areas, 
berms, and dikes;
    (2) The cost of land acquired for a soil absorption system for a 
group of two or more homes;
    (3) The cost of land acquired for composting or temporary storage of 
compost residues which result from wastewater treatment;
    (4) The cost of land acquired for storage of treated wastewater in 
land treatment systems before land application. The total land area for 
construction of a pond for both treatment and storage of wastewater is 
allowable if the volume necessary for storage is greater then the volume 
necessary for treatment. Otherwise, the allowable cost will be 
determined by the ratio of the storage volume to the total volume of the 
pond.
    b. The cost of complying with the requirements of the Uniform 
Relocation Assistance and Real Property Acquisition Policies Act of 1970 
(42 U.S.C. 4621 et seq., 4651 et seq.), under part 4 of this chapter for 
land necessary for the building of treatment works.
    c. The cost of contracting with another public agency or qualified 
private contractor for part or all of the required acquisition and/or 
relocation services.
    d. The cost associated with the preparation of the treatment works 
site before, during and, to the extent agreed on in the grant agreement, 
after building. These costs include:
    (1) The cost of demolition of existing structures on the treatment 
works site (including

[[Page 560]]

rights-of-way) if building cannot be undertaken without such demolition;
    (2) The cost (considering such factors as betterment, cost of 
contracting and useful life) of removal, relocation or replacement of 
utilities, provided the grantee is legally obligated to pay under state 
or local law; and
    (3) The cost of restoring streets and rights-of-way to their 
original condition. The need for such restoration must result directly 
from the construction and is generally limited to repaving the width of 
trench.
    e. The cost of acquiring all or part of an existing publicly or 
privately owned wastewater treatment works provided all the following 
criteria are met:
    (1) The acquisition, in and of itself, considered apart from any 
upgrade, expansion or rehabilitation, provides new pollution control 
benefits;
    (2) The acquired treatment works was not built with previous Federal 
or State financial assistance;
    (3) The primary purpose of the acquisition is not the reduction, 
elimination, or redistribution of public or private debt; and
    (4) The acquisition does not circumvent the requirements of the Act, 
these regulations, or other Federal, State or local requirements.
    2. Unallowable costs for land and rights-of-way include:
    a. The costs of acquisition (including associated legal, 
administrative and engineering etc.) of sewer rights-of-way, waste 
treatment plant sites (including small system sites), sanitary landfill 
sites and sludge disposal areas except as provided in paragraphs 1. a. 
and b. of this section.
    b. Any amount paid by the grantee for eligible land in excess of 
just compensation, based on the appraised value, the grantee's record of 
negotiation or any condemnation proceeding, as determined by the 
Regional Administrator.
    c. Removal, relocation or replacement of utilities located on land 
by privilege, such as franchise.

                  E. Equipment, Materials and Supplies

    1. Allowable costs of equipment, materials and supplies include:
    a. The cost of a reasonable inventory of laboratory chemicals and 
supplies necessary to initiate plant operations and laboratory items 
necessary to conduct tests required for plant operation.
    b. The costs for purchase and/or transportation of biological 
seeding materials required for expeditiously initiating the treatment 
process operation.
    c. Cost of shop equipment installed at the treatment works necessary 
to the operation of the works.
    d. The costs of necessary safety equipment, provided the equipment 
meets applicable Federal, State, local or industry safety requirements.
    e. A portion of the costs of collection system maintenance 
equipment. The portion of allowable costs shall be the total equipment 
cost less the cost attributable to the equipment's anticipated use on 
existing collection sewers not funded on the grant. This calculation 
shall be based on: (1) The portion of the total collection system paid 
for by the grant, (2) a demonstrable frequency of need, and (3) the need 
for the equipment to preclude the discharge or bypassing of untreated 
wastewater.
    f. The cost of mobile equipment necessary for the operation of the 
overall wastewater treatment facility, transmission of wastewater or 
sludge, or for the maintenance of equipment. These items include:
    (1) Portable stand-by generators;
    (2) Large portable emergency pumps to provide ``pump-around'' 
capability in the event of pump station failure or pipeline breaks; and
    (3) Sludge or septage tankers, trailers, and other vehicles having 
as their sole purpose the transportation of liquid or dewatered wastes 
from the collector point (including individual or on-site systems) to 
the treatment facility or disposal site.
    g. Replacement parts identified and approved in advance by the 
Regional Administrator as necessary to assure uninterrupted operation of 
the facility, provided they are critical parts or major systems 
components which are:
    (1) Not immediately available and/or whose procurement involves an 
extended ``lead-time;''
    (2) Identified as critical by the equipment supplier(s); or
    (3) Critical but not included in the inventory provided by the 
equipment supplier(s).
    2. Unallowable costs of equipment, materials and supplies include:
    a. The costs of equipment or material procured in violation of the 
procurement requirements of 40 CFR part 33.
    b. The cost of furnishings including draperies, furniture and office 
equipment.
    c. The cost of ordinary site and building maintenance equipment such 
as lawnmowers and snowblowers.
    d. The cost of vehicles for the transportation of the grantees' 
employees.
    e. Items of routine ``programmed'' maintenance such as ordinary 
piping, air filters, couplings, hose, bolts, etc.

                     F. Industrial and Federal Users

    1. Except as provided in paragraph F.2.a., allowable costs for 
treatment works serving industrial and Federal facilities include 
development of a municipal pretreatment program approvable under part 
403 of this chapter, and purchase of monitoring equipment and 
construction of facilities to be used by

[[Page 561]]

the municipal treatment works in the pretreatment program.
    2. Unallowable costs for treatment works serving industrial and 
Federal facilities include:
    a. The cost of developing an approvable municipal pretreatment 
program when performed solely for the purpose of seeking an allowance 
for removal of pollutants under part 403 of this chapter.
    b. The cost of monitoring equipment used by industry for sampling 
and analysis of industrial discharges to municipal treatment works.
    c. All incremental costs for sludge management incurred as a result 
of the grantee providing removal credits to industrial users under 40 
CFR 403.7 beyond those sludge management costs that would otherwise be 
incurred in the absence of such removal credits.

                         G. Infiltration/Inflow

    1. Allowable costs include:
    a. The cost of treatment works capacity adequate to transport and 
treat nonexcessive infiltration/inflow under Sec. 35.2120.
    b. The costs of sewer system rehabilitation necessary to eliminate 
excessive infiltration/inflow as determined in a sewer system study 
under Sec. 35.2120.
    2. Unallowable costs include:
    a. When the Regional Administrator determines that the flow rate is 
not significantly more than 120 gallons per capita per day under 
Sec. 35.2120(c)(2)(ii), the incremental cost of treatment works capacity 
which is more than 120 gallons per capita per day.

                         H. Miscellaneous Costs

    1. Allowable costs include:
    a. The costs of salaries, benefits and expendable materials the 
grantee incurs for the project.
    b. Unless otherwise specified in this regulation, the costs of 
meeting specific Federal statutory procedures.
    c. Costs for necessary travel directly related to accomplishment of 
project objectives. Travel not directly related to a specific project, 
such as travel to professional meetings, symposia, technology transfer 
seminars, lectures, etc., may be recovered only under an indirect cost 
agreement.
    d. The costs of additions to a treatment works that was assisted 
under the Federal Water Pollution Control Act of 1956 (Pub. L. 84-660), 
or its amendments, and that fails to meet its project performance 
standards provided:
    (1) The project is identified on the State priority list as a 
project for additions to a treatment works that has received previous 
Federal funds;
    (2) The grant application for the additions includes an analysis of 
why the treatment works cannot meet its project performance standards; 
and
    (3) The additions could have been included in the original grant 
award and:
    (a) Are the result of one of the following:
    (i) A change in the project performance standards required by EPA or 
the State;
    (ii) A written understanding between the Regional Administrator and 
grantee prior to or included in the original grant award;
    (iii) A written direction by the Regional Administrator to delay 
building part of the treatment works; or
    (iv) A major change in the treatment works' design criteria that the 
grantee cannot control; or
    (b) Meet all the following conditions:
    (i) If the original grant award was made after December 28, 1981, 
the treatment works has not completed its first full year of operation;
    (ii) The additions are not caused by the grantee's mismanagement or 
the improper actions of others;
    (iii) The costs of rework, delay, acceleration or disruption that 
are a result of building the additions are not included in the grant; 
and
    (iv) The grant does not include an allowance for facilities planning 
or design of the additions.
    (4) This provision applies to failures that occur either before or 
after the initiation of operation. This provision does not cover a 
treatment works that fails at the end of its design life.
    e. Costs of royalties for the use of or rights in a patented process 
or product with the prior approval of the Regional Administrator.
    f. Costs allocable to the water pollution control purpose of 
multiple purpose projects as determined by applying the Alternative 
Justifiable Expenditure (AJE) method described in the CG series. 
Multiple purpose projects that combine wastewater treatment with 
recreation do not need to use the AJE method, but can be funded at the 
level of the most cost-effective single-purpose alternative.
    g. Costs of grantee employees attending training workshops/seminars 
that are necessary to provide instruction in administrative, fiscal or 
contracting procedures required to complete the construction of the 
treatment works, if approved in advance by the Regional Administrator.
    2. Unallowable costs include:
    a. Ordinary operating expenses of the grantee including salaries and 
expenses of elected and appointed officials and preparation of routine 
financial reports and studies.
    b. Preparation of applications and permits required by Federal, 
State or local regulations or procedures.
    c. Administrative, engineering and legal activities associated with 
the establishment

[[Page 562]]

of special departments, agencies, commissions, regions, districts or 
other units of government.
    d. Approval, preparation, issuance and sale of bonds or other forms 
of indebtedness required to finance the project and the interest on 
them.
    e. The costs of replacing, through reconstruction or substitution, a 
treatment works that was assisted under the Federal Water Pollution 
Control Act of 1956 (Pub. L. 84-660), or its amendments, and that fails 
to meet its project performance standards. This provision applies to 
failures that occur either before or after the initiation of operation. 
This provision does not apply to an innovative and alternative treatment 
works eligible for funding under Sec. 35.2032(c) or a treatment works 
that fails at the end of its design life or to a failed rotating 
biological contactor eligible for funding under Sec. 35.2035.
    f. Personal injury compensation or damages arising out of the 
project.
    g. Fines and penalties due to violations of, or failure to comply 
with, Federal, State or local laws, regulations or procedures.
    h. Costs outside the scope of the approved project.
    i. Costs for which grant payment has been or will be received from 
another Federal agency.
    j. Costs of treatment works for control of pollutant discharges from 
a separate storm sewer system.
    k. The cost of treatment works that would provide capacity for new 
habitation or other establishments to be located on environmentally 
sensitive land such as wetlands or floodplains.
    l. The costs of preparing a corrective action report required by 
Sec. 35.2218(c).

                     I. Design/Build Project Grants

    1. Allowable costs include:
    a. The costs of supplementing the facilities plan to prepare the 
pre-bid package including the cost of preliminary boring and site plans, 
concept and layout drawings, schematic, general material and major 
equipment lists and specifications, instructions to builders, general 
and special conditions, project performance standards and permit limits, 
applicable State or other design standards, any requirements to go into 
bid analyses, and other contract documents, schedules, forms and 
certificates.
    b. The costs for building the project, including:
    (1) Project costs based on the lowest responsive, responsible 
competitive design/build project bid.
    (2) Construction management services including detailed plans and 
specifications review and approval, change order review and approval, 
resident inspection, shop drawing approval and preparation of an O & M 
manual and of user charge and sewer use ordinance systems.
    (3) Any adjustments to reflect the actual reasonable and necessary 
costs for preparing the pre-bid package.
    (4) Post-construction activities required by project performance 
certification requirements.
    (5) Contract and project administration activities including the 
review of contractor vouchers and payment requests, preparation of 
monitoring reports, grant administration and accounting services, 
routine legal costs, cost of eligible real property.
    (6) Contingencies.
    2. Unallowable costs include:
    a. All costs in excess of the maximum agreed Federal share.
    b. Costs of facilities planning where the grantee has received a 
Step 1 grant.
[49 FR 6234, Feb. 17, 1984, as amended at 50 FR 45896, Nov. 4, 1985; 55 
FR 27098, June 29, 1990]

        Appendix B--Allowance for Facilities Planning and Design

    1. This appendix provides the method EPA will use to determine both 
the estimated and the final allowance under Sec. 35.2025 for facilities 
planning and design. The Step 2+3, Step 3 and Step 7 grant agreements 
will include an estimate of the allowance.
    2. The Federal share of the allowance is determined by applying the 
applicable grant percentage in Sec. 35.2152 to the allowance.
    3. The allowance is not intended to reimburse the grantee for costs 
actually incurred for facilities planning or design. Rather, the 
allowance is intended to assist in defraying those costs. Under this 
procedure, questions of equity (i.e., reimbursement on a dollar-for-
dollar basis) will not be appropriate.
    4. The estimated and final allowance will be determined in 
accordance with this appendix and Tables 1, 2 and 3. Table 2 is to be 
used in the event the grantee received a grant for facilities planning. 
Table 3 is to be used to determine the facilities planning allowance for 
a Step 7 grant if the grantee did not receive a Step 1 grant. The amount 
of the allowance is computed by applying the resulting allowance 
percentage to the initial allowable building cost.
    5. The initial allowable building cost is the initial allowable cost 
of erecting, altering, remodeling, improving, or extending a treatment 
works, whether accomplished through subagreement or force account. 
Specifically, the initial allowable building cost is the allowable cost 
of the following:
    a. The initial award amount of all prime subagreements for building 
the project.
    b. The initial amounts approved for force account work performed in 
lieu of awarding a subagreement for building the project.

[[Page 563]]

    c. The purchase price of eligible real property.
    6. The estimated allowance is to be based on the estimate of the 
initial allowable building cost.
    7. The final allowance will be determined one time only for each 
project, based on the initial allowable building cost, and will not be 
adjusted for subsequent cost increases or decreases.
    8. For a Step 3 or Step 7 project, the grantee may request payment 
of 50 percent of the Federal share of the estimated allowance 
immediately after grant award. Final payment of the Federal share of the 
allowance may be requested in the first payment after the grantee has 
awarded all prime subagreements for building the project, received the 
Regional Administrator's approval for force account work, and completed 
the acquisition of all eligible real property.
    9. For a Step 2+3 project, if the grantee has not received a grant 
for facilities planning, the grantee may request payment of 30 percent 
of the Federal share of the estimated allowance immediately after the 
grant award. Half of the remaining estimated allowance may be requested 
when design of the project is 50 percent complete. If the grantee has 
received a grant for facilities planning, the grantee may request half 
of the Federal share of the estimated allowance when design of the 
project is 50 percent complete. Final payment of the Federal share of 
the allowance may be requested in the first payment after the grantee 
has awarded all prime subagreements for building the project, received 
the Regional Administrator's approval for force account work, and 
completed the acquisition of all eligible real property.
    10. The allowance does not include architect or engineering services 
provided during the building of the project, e.g., reviewing bids, 
checking shop drawings, reviewing change orders, making periodic visits 
to job sites, etc. Architect or engineering services during the building 
of the project are allowable costs subject to this regulation and 40 CFR 
part 33.
    11. The State will determine the amount and conditions of any 
advance under Sec. 35.2025(b), not to exceed the Federal share of the 
estimated allowance.
    12. EPA will reduce the Federal share of the allowance by the amount 
of any advances the grantee received under Sec. 35.2025(b).

          Table 1--Allowance for Facilities Planning and Design         
------------------------------------------------------------------------
                                                         Allowance as a 
                     Building cost                        percentage of 
                                                         building cost* 
------------------------------------------------------------------------
$100,000 or less......................................           14.4945
120,000...............................................           14.1146
150,000...............................................           13.6631
175,000...............................................           13.3597
200,000...............................................           13.1023
250,000...............................................           12.6832
300,000...............................................           12.3507
350,000...............................................           12.0764
400,000...............................................           11.8438
500,000...............................................           11.4649
600,000...............................................           11.1644
700,000...............................................           10.9165
800,000...............................................           10.7062
900,000...............................................           10.5240
1,000,000.............................................           10.3637
1,200,000.............................................           10.0920
1,500,000.............................................            9.7692
1,750,000.............................................            9.5523
2,000,000.............................................            9.3682
2,500,000.............................................            9.0686
3,000,000.............................................            8.8309
3,500,000.............................................            8.6348
4,000,000.............................................            8.4684
5,000,000.............................................            8.1975
6,000,000.............................................            7.9827
7,000,000.............................................            7.8054
8,000,000.............................................            7.6550
9,000,000.............................................            7.5248
10,000,000............................................            7.4101
12,000,000............................................            7.2159
15,000,000............................................            6.9851
17,500,000............................................            6.8300
20,000,000............................................            6.6984
25,000,000............................................            6.4841
30,000,000............................................            6.3142
35,000,000............................................            6.1739
40,000,000............................................            6.0550
50,000,000............................................            5.8613
60,000,000............................................            5.7077
70,000,000............................................            5.5809
80,000,000............................................            5.4734
90,000,000............................................            5.3803
100,000,000...........................................            5.2983
120,000,000...........................................            5.1594
150,000,000...........................................            4.9944
175,000,000...........................................            4.8835
200,000,000...........................................            4.7894
------------------------------------------------------------------------
Note: The allowance does not reimburse for costs incurred. Accordingly, 
  the allowance Tables shall not be used to determine the compensation  
  for facilities planning or design services. The compensation for      
  facilities planning or design services should be based upon the       
  nature, scope and complexity of the services required by the          
  community.                                                            
*Interpolate between values.                                            


                   Table 2--Allowance for Design Only                   
------------------------------------------------------------------------
                                                         Allowance as a 
                     Building cost                        percentage of 
                                                         building cost* 
------------------------------------------------------------------------
$100,000 or less......................................            8.5683
120,000...............................................            8.3808
150,000...............................................            8.1570
175,000...............................................            8.0059
200,000...............................................            7.8772
250,000...............................................            7.6668
300,000...............................................            7.4991
350,000...............................................            7.3602
400,000...............................................            7.2419
500,000...............................................            7.0485
600,000...............................................            6.8943
700,000...............................................            6.7666

[[Page 564]]

                                                                        
800,000...............................................            6.6578
900,000...............................................            6.5634
1,000,000.............................................            6.4300
1,200,000.............................................            6.3383
1,500,000.............................................            6.1690
1,750,000.............................................            6.0547
2,000,000.............................................            5.9574
2,500,000.............................................            5.7983
3,000,000.............................................            5.6714
3,500,000.............................................            5.5664
4,000,000.............................................            5.4769
5,000,000.............................................            5.3306
6,000,000.............................................            5.2140
7,000,000.............................................            5.1174
8,000,000.............................................            5.0352
9,000,000.............................................            4.9637
10,000,000............................................            4.9007
12,000,000............................................            4.7935
15,000,000............................................            4.6655
17,500,000............................................            4.5790
20,000,000............................................            4.5054
25,000,000............................................            4.3851
30,000,000............................................            4.2892
35,000,000............................................            4.2097
40,000,000............................................            4.1421
50,000,000............................................            4.0314
60,000,000............................................            3.9432
70,000,000............................................            3.8702
80,000,000............................................            3.8080
90,000,000............................................            3.7540
100,000,000...........................................            3.7063
120,000,000...........................................            3.6252
150,000,000...........................................            3.5284
175,000,000...........................................            3.4630
200,000,000...........................................            3.4074
------------------------------------------------------------------------
Note: The allowance does not reimburse for costs incurred. Accordingly, 
  the allowance Tables shall not be used to determine the compensation  
  for facilities planning or design services. The compensation for      
  facilities planning or design services should be based upon the       
  nature, scope and complexity of the services required by the          
  community.                                                            
*Interpolate between values.                                            


  Table 3.--Allowance for Facilities Planning for Design/Build Projects 
------------------------------------------------------------------------
                                                         Allowance as a 
                Building cost (dollars)                   percentage of 
                                                         building cost* 
------------------------------------------------------------------------
100,000 or less.......................................            5.9262
120,000...............................................            5.7337
150,000...............................................            5.5061
175,000...............................................            5.3538
200,000...............................................            5.2250
250,000...............................................            5.0163
300,000...............................................            4.8516
350,000...............................................            4.7162
400,000...............................................            4.6019
500,000...............................................            4.4164
600,000...............................................            4.2701
700,000...............................................            4.1499
800,000...............................................            4.0483
900,000...............................................            3.9606
1,000,000.............................................            3.8837
1,200,000.............................................            3.7538
1,500,000.............................................            3.6003
1,750,000.............................................            3.4976
2,000,000.............................................            3.4109
2,500,000.............................................            3.2703
3,000,000.............................................            3.1595
3,500,000.............................................            3.0684
4,000,000.............................................            2.9915
5,000,000.............................................            2.8669
6,000,000.............................................            2.7686
7,000,000.............................................            2.6880
8,000,000.............................................            2.6198 
------------------------------------------------------------------------
Note: Building cost is the sum of the allowable cost of (1) the initial 
  award amount of the prime subagreement for building and designing the 
  project; and (2) the purchase price of eligible real property.        
*Interpolate between values.                                            


[49 FR 6234, Feb. 17, 1984, as amended at 55 FR 27098, June 29, 1990]



       Subpart J--Construction Grants Program Delegation to States

    Authority: Sections 205(g) and 518(e) of the Clean Water Act, as 
amended, 33 U.S.C. 1251 et. seq.

    Source: 48 FR 37818, Aug. 19, 1983, unless otherwise noted.



Sec. 35.3000  Purpose.

    (a) This regulation establishes policies and procedures for the 
development, management, and EPA overview of State administration of the 
wastewater treatment works construction grants program under section 
205(g) of the Clean Water Act, as amended. The delegation agreement 
between EPA and the State is a precondition for construction management 
assistance under section 205(g). Program requirements for other 
assistance agreements authorized by section 205(g) for activities under 
sections 402 and 404 and section 208(b)(4) are provided in part 130. 
Administration of all section 205(g) assistance agreements follows the 
procedures established in subpart A of this part.
    (b) A State, for purposes of receiving delegation of construction 
grant program responsibilities under this subpart, shall include a 
State, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, Guam, American Samoa, the Trust Territories of the 
Pacific Islands (Palau), the Commonwealth of the Northern Marianas, and 
any Indian Tribe, band, group, or

[[Page 565]]

community recognized by the Secretary of the Interior and exercising 
governmental authority over a Federal Indian reservation, provided that 
the Tribe satisfies the following criteria:
    (1) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers. The Tribe must submit a narrative 
statement to the Regional Administrator describing the form of the 
Tribal government, describing the types of essential governmental 
functions currently performed and identifying the source of the 
authority to perform these functions.
    (2) The functions to be exercised by the Indian Tribe pertain to the 
management and protection of water resources which are held by an Indian 
Tribe, held by the United States in trust for Indians, held by a member 
of an Indian Tribe if such property is subject to a trust restriction on 
alienation, or otherwise within the borders of an Indian reservation. 
Assertions by the Indian Tribe with respect to this criterion will be 
provided by EPA to adjacent governmental entities in accordance with 40 
CFR 130.15.
    (3) The Indian Tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions to be 
exercised in a manner consistent with the terms and purposes of the 
Clean Water Act and applicable regulations.
    (c) Where a Tribe has previously qualified for treatment as a State 
under a Clean Water Act or Safe Drinking Water Act program, the Tribe 
need only provide the required information which had not been submitted 
in a previous treatment as a State application.

[48 FR 37818, Aug. 19, 1983, as amended at 55 FR 27098, June 29, 1990]



Sec. 35.3005  Policy.

    (a) EPA's policy is to delegate management of the wastewater 
treatment works construction grant program to the maximum extent 
possible consistent with the objectives of the Act, prudent fiscal 
management, and EPA's overall national responsibility for the program. 
The policy is premised on an on-going partnership between EPA and the 
States that includes consultation with the States in formulation of 
policy and guidance by EPA. EPA expects States to undertake full 
delegation of all project level activities, including preliminary 
determinations of non-delegable requirements. The objective of 
delegation is to eliminate duplication of Federal and State effort in 
the management of the construction grant program, to increase State 
participation in the construction grant program, and to improve 
operating efficiency.
    (b) Program delegation is to be accomplished through a formal 
delegation agreement between the Regional Administrator and the State. 
The delegation agreement will specify the functions which the State will 
perform and procedures for State certification to EPA.
    (c) EPA will overview the performance of the program under 
delegation to ensure that progress is being made toward meeting the 
construction grant program objectives and that the State is continuing 
to employ administrative, fiscal, and program controls to guard against 
fraud, misuse, and mismanagement of public funds. Overview will also 
include review of the State management process to ensure it is 
efficient, effective and assures timely State reviews.



Sec. 35.3010  Delegation agreement.

    (a) Before execution of the delegation agreement, the Regional 
Administrator must determine that the unit of the State agency 
designated to implement the agreement is capable of carrying out the 
delegated functions. The Regional Administrator will evaluate those 
aspects of the unit which directly affect the State's capability to 
implement the agreement.
    (b) In the delegation agreement, the State agency will assure the 
Regional Administrator that it will execute its responsibilities under 
the delegation agreement in conformance with all applicable Federal 
laws, regulations, orders, and policies.
    (c) The delegation agreement will:
    (1) Designate the organizational unit within the State responsible 
for the implementation of the delegation agreement;
    (2) List the functions delegated and functions to be delegated, with 
a schedule for their assumption by the State;

[[Page 566]]

    (3) Identify procedures to be followed and records to be kept by the 
State and EPA in carrying out each delegated function;
    (4) Identify the staffing, hiring, training, and funding necessary 
to carry out the delegated functions;
    (5) Estimate program costs by year for the term of the delegation 
agreement;
    (6) Identify an accounting system, acceptable to the Regional 
Administrator, which will properly identify and relate State costs to 
the conduct of delegated functions; and
    (7) Identify the form and content of the system for EPA overview of 
State performance consistent with the requirements in Sec. 35.3025 of 
this subpart, including the frequency, method, and extent of monitoring, 
evaluation, and reporting.
    (d) The term of the delegation agreement shall generally be five 
years. As subsequent construction management assistance is awarded, the 
delegation agreement may be amended to maintain a five-year period.
    (e) The delegation agreement will be revised, as necessary, to 
reflect substantial program or procedural changes, as determined by the 
Regional Administrator.

(Approved by the Office of Management and Budget under control number 
2000-0417)



Sec. 35.3015  Extent of State responsibilities.

    (a) Except as provided in paragraph (c) of this section, the 
Regional Administrator may delegate to the State agency authority to 
review and certify all construction grant documents required before and 
after grant award and to perform all construction grant review and 
management activities necessary to administer the construction grants 
program.
    (b) The State may also act as the manager of waste treatment 
construction grant projects for small communities. The State, with the 
approval of the community, may serve as the community contracting agent 
and undertake responsibilities such as negotiating subagreements, 
providing technical assistance, and assisting the community in 
exercising its resident engineering responsibility. In this capacity, 
the State is in the same position as a private entity and cannot require 
a small community to hold the State harmless from negligent acts or 
omissions. The State may also execute an agreement with any organization 
within the State government, other than the State agency, which is 
capable of performing these services. The terms of the agreement to 
provide these services to small communities must be approved by the 
Regional Administrator before execution of the agreement.
    (c) The Regional Administrator shall retain overall responsibility 
for the construction grant program and exercise direct authority for the 
following:
    (1) Construction grant assistance awards, grant amendments, 
payments, and terminations;
    (2) Projects where an overriding Federal interest requires greater 
Federal involvement;
    (3) Final determinations under Federal statutes and Executive Orders 
(e.g., the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et 
seq.), except for sections 201, 203, 204, and 212 of the Clean Water 
Act;
    (4) Final resolution of construction grant audit exceptions; and
    (5) Procurement determinations listed under 40 CFR 33.001(g).



Sec. 35.3020  Certification procedures.

    (a) The State will furnish a written certification to the Regional 
Administrator for each construction grant project application submitted 
to EPA for award. The certification must state that all Federal 
requirements, within the scope of authority delegated to the State under 
the delegation agreement, have been met. This certification must be 
supported by documentation specified in the delegation agreement. The 
documentation must be made available to the Regional Administrator upon 
request.
    (b) Certification that a construction grant project application 
complies with all delegable pre-award requirements consists of 
certification of compliance with the following sections of subpart I of 
this part: Sec. 35.2030 (Facilities planning); Sec. 35.2040 (a) and (b) 
(Grant application); Sec. 35.2042 (Review of

[[Page 567]]

grant applications); and Sec. Sec. 35.2100 (Limitations on award) 
through and including 35.2125, except for Sec. 35.2101 (Advanced 
treatment reviews for projects with incremental capital advanced 
treatment costs of over $3 million), Sec. 35.2112 (Marine waiver 
discharge applicants), and Sec. 35.2113 (final decisions under the 
National Environmental Policy Act).



Sec. 35.3025  Overview of State performance under delegation.

    The Regional Administrator will review the performance of a 
delegated State through an annual overview program, developed in 
accordance with procedures agreed to in the delegation agreement 
(Sec. 35.3010(c)(7)). The purpose of the overview program is to ensure 
that both the delegated State and EPA efficiently and effectively 
execute the fiscal and program responsiblilities under the Clean Water 
Act and related legislation. The overview program is comprised of three 
steps:
    (a) Developing a plan for overview. The plan for overview specifies 
priority objectives, key measures of performance, and monitoring and 
evaluation activities (including State reporting to EPA) for the 
upcoming year. EPA and the State should agree to a plan for overview in 
advance of the upcoming year.
    (1) Priority objectives will include both program and management 
objectives. In developing the State priority objectives, the national 
priorities identified by the Administrator on an annual basis must, at a 
minimum, be addressed and applied as appropriate to each State. In 
addition, the Regional Administrator and the State may identify other 
objectives unique to the situation in the State.
    (2) For each priority objective, the plan for overview will specify 
key measures of performance (both quantitative and qualitative), 
identify which measures will require the negotiation of outputs, and 
enumerate the specific monitoring and evaluation activities and methods 
planned for the upcoming year.
    (b) Negotiating annual outputs. Annually, the Region and delegated 
State will negotiate and agree upon outputs, where required by the plan 
for overview, to cover priority objectives for the upcoming year. This 
negotiation should also result in development of the work program 
required for the section 205(g) assistance application, pursuant to 
subpart A, Sec. 35.130 of this part. Where the assistance application 
covers a budget period beyond the annual overview program period, the 
assistance award may be made for the full budget period, contingent on 
future negotiation of annual outputs under this paragraph for subsequent 
years of the budget period.
    (c) Monitoring and evaluating program performance. Monitoring and 
evaluation of program performance (including State reporting) is based 
on the plan for overview agreed to in advance, and should be appropriate 
to the delegation situation existing between the Region and State. It 
should take into account past performance of the State and the extent of 
State experience in administering the delegated functions. An on-site 
evaluation will occur at least annually and will cover, at a minimum, 
negotiated annual outputs, performance expected in the delegation 
agreement and, where applicable, evaluation of performance under the 
assistance agreement as provided in 40 CFR 35.150. The evaluation will 
cover performance of both the Region and the State. Upon completion of 
the evaluation, the delegation agreement may be revised, if necessary, 
to reflect changes resulting from the evaluation. The Regional 
Administrator may terminate or annul any section 205(g) financial 
assistance for cause in accordance with the procedures in subpart A, 
Sec. 35.150, and part 30.

(Approved by the Office of Management and Budget under control number 
2000-0417)



Sec. 35.3030  Right of review of State decision.

    (a) Any construction grant application or grantee who has been 
adversely affected by a State's action or omission may request Regional 
review of such action or omission, but must first submit a petition for 
review to the State agency that made the initial decision. The State 
agency will make a final decision in accordance with procedures set 
forth in the delegation agreement. The State must provide, in writing, 
normally within 45 days of the date it receives the petition, the basis 
for its

[[Page 568]]

decision regarding the disputed action or omission. The final State 
decision must be labeled as such and, if adverse to the applicant or 
grantee, must include notice of the right to request Regional review of 
the State decision under this section. A State's failure to address the 
disputed action or omission in a timely fashion, or in writing, will not 
preclude Regional review.
    (b) Requests for Regional review must include:
    (1) A copy of any written State decision.
    (2) A statement of the amount in dispute,
    (3) A description of the issues involved, and
    (4) A concise statement of the objections to the State decision.
The request must be filed by registered mail, return receipt requested, 
within thirty days of the date of the State decision or within a 
reasonable time if the State fails to respond in writing to the request 
for review.
    (c) The Region shall determine whether the State's review is 
comparable to a dispute decision official's (DDO) review pursuant to 40 
CFR part 30, subpart L. If the State's review is comparable, Regional 
review of the State's decision will be conducted by the Regional 
Administrator. If the State's review is not comparable, the DDO will 
review the State's decision and issue a written decision. Review of 
either a Regional Administrator or DDO decision may be requested 
pursuant to subpart L.

(Approved by the Office of Management and Budget under control number 
2040-0095)

[50 FR 45896, Nov. 4, 1985]



Sec. 35.3035  Public participation.

    (a) Public participation during the development, review, approval, 
and substantial revision of the delegation agreement will be in 
accordance with the requirements of section 101(e) of the Act, part 25 
of this chapter, and this subpart.
    (b) The Regional Administrator or the State, as mutually agreed, 
will make the draft delegation agreement, any proposed substantial 
amendment to the delegation agreement, and the proposed annual overview 
program, available to the public for comment, and provide notice of 
availability, sufficiently in advance of execution to allow for timely 
comment.
    (c) If, based on comments received, the Regional Administrator or 
State determines that significant interest exists, the State and EPA 
will consult with interested and affected groups and citizens prior to 
execution of the delegation agreement, substantial amendment, or annual 
overview program. If the Regional Administrator or State determines that 
significant interest and desire for a public meeting exist, the Region 
or State will hold one or more public meetings at least 30 days prior to 
execution.



        Subpart K--State Water Pollution Control Revolving Funds

    Authority: Sections 205(m), 501(a) and title VI of the Clean Water 
Act, as amended, 33 U.S.C. 1285(m), 33 U.S.C. 1361(a), 33 U.S.C. 1381-
1387.

    Source: 55 FR 10178, Mar. 19, 1990, unless otherwise noted.



Sec. 35.3100  Policy and purpose.

    (a) The Agency intends to implement the State water pollution 
control revolving fund program in a manner that preserves for States a 
high degree of flexibility for operating their revolving funds in 
accordance with each State's unique needs and circumstances. The purpose 
of these regulations is to advance the general intent of title VI of the 
Clean Water Act, which is to ensure that each State's program is 
designed and operated to continue providing assistance for water 
pollution control activities in perpetuity.
    (b) These regulations reflect statutory and program requirements 
that have been previously published in the Initial Guidance for State 
Revolving Funds, which was signed by the Assistant Administrator for 
Water on January 28, 1988, and the supplementary memorandum to the 
Initial Guidance for State Revolving Funds, which was signed by the 
Assistant Administrator for Water on September 30, 1988. Copies of both 
documents can be obtained by writing the Office of Municipal Pollution 
Control (WH-546), Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460.

[[Page 569]]

    (c) These regulations supplement title VI by codifying all major 
program requirements, applicable to the SRF program. EPA will not impose 
additional major program requirements without an opportunity for 
affected parties to comment. The process for amending this regulation to 
incorporate these requirements will begin within three months of their 
issuance.



Sec. 35.3105  Definitions.

    Words and terms that are not defined below and that are used in this 
rule shall have the same meaning they are given in 40 CFR part 31 and 40 
CFR part 35, subpart I.
    (a) Act. The Federal Water Pollution Control Act, more commonly 
known as the Clean Water Act (Pub. L. 92-500), as amended by the Water 
Quality Act of 1987 (Pub. L. 100-4). 33 U.S.C. 1251 et seq.
    (b) Binding Commitment. A legal obligation by the State to a local 
recipient that defines the terms for assistance under the SRF.
    (c) Capitalization Grant. The assistance agreement by which the EPA 
obligates and awards funds allotted to a State for purposes of 
capitalizing that State's revolving fund.
    (d) Cash draw. The transfer of cash under a letter of credit (LOC) 
from the Federal Treasury into the State's SRF.
    (e) Disbursement. The transfer of cash from an SRF to an assistance 
recipient.
    (f) Equivalency projects. Those section 212 wastewater treatment 
projects constructed in whole or in part before October 1, 1994, with 
funds ``directly made available by'' the capitalization grant. These 
projects must comply with the requirements of section 602(b)(6) of the 
Act.
    (g) Funds ``directly made available by'' capitalization grants. 
Funds equaling the amount of the grant.
    (h) Payment. An action by the EPA to increase the amount of 
capitalization grant funds available for cash draw from an LOC.
    (i) SRF. State water pollution control revolving fund.



Sec. 35.3110  Fund establishment.

    (a) Generally. Before the Regional Administrator (RA) may award a 
capitalization grant, the State must establish an SRF that complies with 
section 603 of the Act and this rule.
    (b) SRF accounts. The SRF can be established within a multiple-
purpose State financing program. However, the SRF must be a separate 
account or series of accounts that is dedicated solely to providing 
loans and other forms of financial assistance, but not grants.
    (c) SRF administration. The SRF must be administered by an 
instrumentality of the State that is empowered to manage the Fund in 
accordance with the requirements of the Act. Where more than one agency 
of the State is involved in administering the activities of the State's 
program, the functions and the relationships of those agencies must be 
established to the satisfaction of the RA.
    (d) Documentation of the establishment of an SRF program. (1) As 
part of its initial application for the capitalization grant, the State 
must furnish the RA with documentation of the establishment of an SRF 
and designation of the State instrumentality that will administer the 
SRF in accordance with the Act.
    (2) With each capitalization grant application, the State's Attorney 
General (AG), or someone designated by the AG, must sign or concur in a 
certification that the State legislation establishing the SRF and the 
powers it confers are consistent with State law, and that the State may 
legally bind itself to the terms of the capitalization grant agreement.
    (3) Where waiting for the AG's signature or concurrence would by 
itself significantly delay awarding the first grant (i.e., there are no 
other issues holding up the award), the head or chief legal officer of 
the State agency which has direct responsibility for administering the 
SRF program may sign the certification at the time of the capitalization 
grant award, provided the capitalization grant agreement contains a 
special condition requiring the State to submit the AG/designee's 
concurrence to EPA within a reasonable time, not to exceed 120 days, 
after the grant is awarded.
    (e) Allotment. (1) Appropriations for fiscal years 1987 through 1990 
under both title II and title VI programs will

[[Page 570]]

be allotted in accordance with the formula contained in section 
205(c)(3) of the Act.
    (2) Title VI funds are available for the Agency to obligate to the 
State during the fiscal year in which they are allotted and during the 
following fiscal year. The amount of any title VI allotment not 
obligated to the State at the end of this period of availability will be 
reallotted for title VI purposes in accordance with 40 CFR 35.2010.
    (3) A State that does not receive grants that obligate all the funds 
allotted to it under title VI in the first year of its availability will 
not receive reallotted funds from that appropriation.
    (4) Notwithstanding 40 CFR 35.910 and 40 CFR 35.2010(a), 
deobligations and reallotments of title II funds may be transferred to a 
title VI capitalization grant regardless of either the year in which the 
title II funds were originally allotted or the year in which they are 
deobligated or reallotted.
    (f) Transfer of title II allotments. A State may exercise the option 
to transfer a portion of its title II allotment for deposit, through a 
capitalization grant, into an established water pollution control 
revolving fund, under section 205(m) of the Act.
    (1) If the State elects this option, the Governor of the State must 
submit a Notice of Intent to the RA specifying the amount of the title 
II allotment the State intends to use for title VI purposes during the 
fiscal year for which it is submitted. The Notice may also identify 
anticipated, unobligated title II funds from the prior fiscal year, and 
request transfer of those funds as well.
    (2) Each Notice of Intent must be submitted on or before July 3 of 
the year preceding the Federal fiscal year in which those funds are 
available. If a State fails to file a Notice of Intent on or before the 
prescribed date, then the State may not transfer title II allotments 
into an SRF in the upcoming fiscal year. A timely Notice of Intent may 
be later withdrawn or amended.
    (3) When the capitalization grant is awarded, funds requested under 
section 205(m) of the Act will be obligated under title VI for the 
activities of the SRF. If a Notice of Intent anticipates transfer of 
funds under the authority of section 205(m), but those funds are not so 
obligated by the end of the two year period of availability, they will 
be subject to reallotment as construction grant funds.
    (g) Reserves and transferred allotments. (1) Funds reserved under 
section 205(g) of the Act can be used to develop SRF programs. However, 
before any of these funds may be used for purposes of the SRF, the State 
must establish to the satisfaction of the RA that adequate funds, up to 
the section 205(g) maximum, will be available from any source to 
administer the construction grants program.
    (2) Funds reserved under sections 205(j)(1) and 205(j)(5) of the Act 
must be calculated based on the State's full title II allotment, and 
cannot be transferred to the SRF.
    (3) Funds reserved under sections 201(l)(2), 205(h), and 205(i) of 
the Act must also be calculated based upon the State's full title II 
allotment. However, these reserves may be transferred into an SRF.
    (4) The State must reserve from each fiscal year's title VI 
allotment the greater of one percent of its allotment or $100,000 to 
carry out planning under sections 205(j) and 303(e) of the Act.

(Approved by the Office of Management and Budget under control number 
2040-0118)



Sec. 35.3115  Eligible activities of the SRF.

    Funds in the SRF shall not be used to provide grants. SRF balances 
must be available in perpetuity and must be used solely to provide loans 
and other authorized forms of financial assistance:
    (a) To municipalities, inter- municipal, interstate, or State 
agencies for the construction of publicly owned wastewater treatment 
works as these are defined in section 212 of the Act and that appear on 
the State's priority list developed pursuant to section 216 of the Act; 
and
    (b) For implementation of a nonpoint source pollution control 
management program under section 319 of the Act; and
    (c) For development and implementation of an estuary conservation 
and management plan under section 320 of the Act.

[[Page 571]]



Sec. 35.3120  Authorized types of assistance.

    The SRF may provide seven general types of financial assistance.
    (a) Loans. The SRF may award loans at or below market interest 
rates, or for zero interest.
    (1) Loans may be awarded only if:
    (i) All principal and interest payments on loans are credited 
directly to the SRF;
    (ii) The annual repayment of principal and payment of interest 
begins not later than one year after project completion;
    (iii) The loan is fully amortized not later than twenty years after 
project completion; and
    (iv) Each loan recipient establishes one or more dedicated sources 
of revenue for repayment of the loan.
    (2) Where construction of a treatment works has been phased or 
segmented, loan repayment requirements apply to the completion of 
individual phases or segments.
    (b) Refinancing existing debt obligations. The SRF may buy or 
refinance local debt obligations at or below market rates, where the 
initial debt was incurred after March 7, 1985, and building began after 
that date.
    (1) Projects otherwise eligible for refinancing under this section 
on which building began:
    (i) Before January 28, 1988 (the effective date of the Initial 
Guidance for State Revolving Funds) must meet the requirements of title 
VI to be fully eligible.
    (ii) After January 28, 1988, but before the effective date of this 
rule, must meet the requirements of title VI and of the Initial Guidance 
for State Revolving Funds to be fully eligible.
    (iii) After March 19, 1990 must meet the requirements of this rule 
to be fully eligible.
    (2) Where the original debt for a project was in the form of a 
multi-purpose bond incurred for purposes in addition to wastewater 
treatment facility construction, an SRF may provide refinancing only for 
eligible purposes, and not for the entire debt.
    (c) Guarantee or purchase insurance for local debt obligations. The 
SRF may guarantee local debt obligations where such action would improve 
credit market access or reduce interest rates. The SRF may also purchase 
or provide bond insurance to guarantee debt service payment.
    (d) Guarantee SRF debt obligations. The SRF may be used as security 
or as a source of revenue for the payment of principal and interest on 
revenue or general obligation bonds issued by the State provided that 
the net proceeds of the sale of such bonds are deposited in the SRF.
    (e) Loan guarantees for ``sub-State revolving funds.'' The SRF may 
provide loan guarantees for similar revolving funds established by 
municipal or intermunicipal agencies, to finance activities eligible 
under title VI.
    (f) Earn interest on fund accounts. The SRF may earn interest on 
Fund accounts.
    (g) SRF administrative expenses. (1) Money in the SRF may be used 
for the reasonable costs of administering the SRF, provided that the 
amount does not exceed 4 percent of all grant awards received by the 
SRF. Expenses of the SRF in excess of the amount permitted under this 
section must be paid for from sources outside the SRF.
    (2) Allowable administrative costs include all reasonable costs 
incurred for management of the SRF program and for management of 
projects receiving financial assistance from the SRF. Reasonable costs 
unique to the SRF, such as costs of servicing loans and issuing debt, 
SRF program start-up costs, financial management, and legal consulting 
fees, and reimbursement costs for support services from other State 
agencies are also allowable.
    (3) Unallowable administrative costs include the costs of 
administering the construction grant program under section 205(g), 
permit programs under sections 402 and 404 and Statewide wastewater 
management planning programs under section 208(b)(4).
    (4) Expenses incurred issuing bonds guaranteed by the SRF, including 
the costs of insuring the issue, may be absorbed by the proceeds of the 
bonds, and need not be charged against the 4 percent administrative 
costs ceiling. The net proceeds of those issues must be deposited in the 
Fund.

[[Page 572]]



Sec. 35.3125  Limitations on SRF assistance.

    (a) Prevention of double benefit. If the SRF makes a loan in part to 
finance the cost of facility planning and preparation of plans, 
specifications, and estimates for the building of treatment works and 
the recipient subsequently receives a grant under section 201(g) for the 
building of treatment works and an allowance under section 201(1)(1), 
the SRF shall ensure that the recipient will promptly repay the loan to 
the extent of the allowance.
    (b) Assistance for the non-Federal share. (1) The SRF shall not 
provide a loan for the non-Federal share of the cost of a treatment 
works project for which the recipient is receiving assistance from the 
EPA under any other authority.
    (2) The SRF may provide authorized financial assistance other than a 
loan for the non-Federal share of a treatment works project receiving 
EPA assistance if the Governor or the Governor's designee determines 
that such assistance is necessary to allow the project to proceed.
    (3) The SRF may provide loans for subsequent phases, segments, or 
stages of wastewater treatment works that previously received grant 
assistance for earlier phases, segments, or stages of the same treatment 
works.
    (4) A community that receives a title II construction grant after 
the community has begun building with its own financing, may receive SRF 
assistance to refinance the pre-grant work, in accordance with the 
requirements for refinancing set forth under Sec. 35.3120(b) of this 
part.
    (c) Publicly owned portions. The SRF may provide assistance for only 
the publicly owned portion of the treatment works.
    (d) Private operation. Contractual arrangements for the private 
operation of a publicly owned treatment works will not affect the 
eligibility of the treatment works for SRF financing.
    (e) Water quality management planning. The SRF may provide 
assistance only to projects that are consistent with any plans developed 
under sections 205(j), 208, 303(e), 319 and 320 of the Act.



Sec. 35.3130  The capitalization grant agreement.

    (a) Contents. The capitalization grant agreement must contain or 
incorporate by reference the State's application, Intended Use Plan, 
agreed upon payment schedule, State environmental review process and 
certifications or demonstrations of other agreement requirements and, 
where used, the SRF Operating Agreement.
    (b) Operating agreement. At the option of the State, the 
organizational and administrative framework and those procedures of the 
SRF program that are not expected to change annually may be described in 
an Operating Agreement (OA). The OA must be incorporated by reference in 
the grant agreement.
    (c) Application requirements. The State must certify in its 
application that it has the legal, managerial, technical, and 
operational capabilities to administer the program.

(Approved by the Office of Management and Budget under control number 
2040-0118)



Sec. 35.3135  Specific capitalization grant agreement requirements.

    (a) Agreement to accept payments. The State must agree to accept 
grant payments in accordance with the negotiated payment schedule.
    (b) Provide a State match. The State must agree to deposit into its 
SRF an amount equaling at least 20 percent of the amount of each grant 
payment.
    (1) The State match must be deposited on or before the date on which 
the State receives each payment from the grant award. The State may 
maintain its match in an LOC or other financial arrangement similar to 
the Federal LOC, provided that the State's proportional share is 
converted to cash when the Federal LOC is drawn upon.
    (2) Bonds issued by the State for the match may be retired from the 
interest earned by the SRF (including interest on SRF loans) if the net 
proceeds from the State issued bonds are deposited in the fund. Loan 
principal must be repaid to the SRF and cannot be used to retire State 
issued bonds.
    (3) The State must identify the source of the matching amount in the 
capitalization grant application and must establish to the RA's 
satisfaction

[[Page 573]]

that the source is not Federal money, unless specifically authorized to 
be used for such purposes under the statute making the funds available.
    (4) If the State provides a match in excess of the required amount, 
the excess balance may be banked toward subsequent match requirements.
    (5) If the State has deposited State monies in a dedicated revolving 
fund after March 7, 1985 and prior to receiving a capitalization grant, 
the State may credit these monies toward the match requirement:
    (i) If the monies were deposited in an SRF that subsequently 
received a capitalization grant and, if the deposit was expended, it was 
expended in accordance with title VI;
    (ii) If the monies were deposited in a separate fund that has not 
received a capitalization grant, they were expended in accordance with 
title VI and an amount equal to all repayments of principal and payments 
of interest from these loans will be deposited in the Federally 
capitalized fund; or
    (iii) If the monies were deposited in a separate fund and used as a 
reserve consistent with title VI, and an amount equal to the reserve is 
transferred to the Federally capitalized fund as its function is 
satisfied.
    (c) Binding commitments. The State must make binding commitments in 
an amount equal to 120 percent of each quarterly grant payment within 
one year after the receipt of each quarterly grant payment.
    (1) Binding commitments may be for any of the types of assistance 
provided for in sections 40 CFR 35.3120(a), (b), (c), (e) or (f) and for 
Fund administration under 40 CFR 35.3120(g).
    (2) If the State commits more than the required 120 percent, EPA 
will recognize the cumulative value of the binding commitments, and the 
excess balance may be banked towards the binding commitment requirements 
of subsequent quarters.
    (3) If the State does not make binding commitments equaling 120 
percent of the quarterly grant payment within one year after it receives 
the payment, the RA may withhold future quarterly grant payments, and 
require adjustments to the payment schedule before releasing further 
payments.
    (d) Expeditious and timely expenditure. The State must agree to 
expend all funds in the SRF in an expenditious and timely manner.
    (e) First use of funds. (1) The State must agree to first use funds 
in the SRF equaling the amount of the grant, all repayments of principal 
and payments of interest on the initial loans from the grant, and the 
state match to address any major and minor publicly owned treatment 
works (POTW) that the Region and the State have previously identified as 
part of the National Municipal Policy list for the State.
    (2) These funds may be used to fund the cost-effective reserve 
capacity of these projects.
    (3) In order for a State to use these funds for other section 212 
POTWs or for nonpoint source (section 319) or estuary (section 320) 
activities, the State must certify that the POTWs identified in 
Sec. 35.3135(e)(1) are either:
    (i) In compliance; or
    (ii) On an enforceable schedule; or
    (iii) Have an enforcement action filed; or
    (iv) Have a funding commitment during or prior to the first year 
covered by the Intended Use Plan.
    (4) Other funds in the SRF may be used at any time for the 
construction of any treatment works on the State's priority list or for 
activities under sections 319 and 320 of the Act.
    (f) Compliance with title II requirements. (1) The State must agree 
that equivalency projects will comply with sections 201(b), 201(g)(1), 
201(g)(2), 201(g)(3), 201(g)(5), 201(g)(6), 201(n)(1), 201(o), 
204(a)(1), 204(a)(2), 204(b)(1), 204(d)(2), 211, 218, 511(c)(1), and 513 
of the Act.
    (2) The State must comply only with the statutory requirements. The 
State may develop its own procedures for implementing the statutory 
provisions. The RA will accept State procedures provided that the 
procedures will adequately assure compliance with the statutory 
requirements, considered in the context of the SRF program.
    (3) Where the State funds equivalency projects for more than the 
capitalization grant amount, EPA will recognize the cumulative value of 
the eligible costs of the equivalency projects,

[[Page 574]]

and the excess balance may be banked toward subsequent year equivalency 
requirements.
    (4) Only those eligible costs actually funded with loans or other 
authorized assistance from the SRF may be credited toward satisfaction 
of the equivalency requirement, and only in the amount of that 
assistance.
    (g) State laws and procedures. The State must agree to commit or 
expend each quarterly capitalization grant payment in accordance with 
the State's own laws and procedures regarding the commitment or 
expenditure of revenues.
    (h) State accounting and auditing procedures. (1) The State must 
agree to establish fiscal controls and accounting procedures that are 
sufficient to assure proper accounting for payments received by the SRF, 
disbursements made by the SRF, and SRF balances at the beginning and end 
of the accounting period.
    (2) The State must also agree to use accounting, audit, and fiscal 
procedures conforming to generally accepted government accounting 
standards as these are promulgated by the Governmental Accounting 
Standards Board. Generally accepted government auditing standards are 
usually defined as, but not limited to, those contained in the U.S. 
General Accounting Office (GAO) publication ``Government Auditing 
Standards'' (1988 revision).
    (i) Recipient accounting and auditing procedures. The State must 
agree to require recipients of SRF assistance to maintain project 
accounts in accordance with generally accepted government accounting 
standards as these are promulgated by the Government Accounting 
Standards Board. These accounts must be maintained as separate accounts.
    (j) Annual report. The State must agree to make an Annual Report to 
the RA on the actual use of the funds, in accordance with section 606(d) 
of the Act.



Sec. 35.3140  Environmental review requirements.

    (a) Generally. The State must agree to conduct reviews of the 
potential environmental impacts of all section 212 construction projects 
receiving assistance from the SRF, including nonpoint source pollution 
control (section 319) and estuary protection (section 320) projects that 
are also section 212 projects.
    (b) NEPA-like State environmental review process. Equivalency 
projects must undergo a State environmental review process (SERP) that 
conforms generally to the National Environmental Policy Act (NEPA). The 
State may elect to apply the procedures at 40 CFR part 6, subpart E and 
related subparts, or apply its own ``NEPA-like'' SERP for conducting 
environmental reviews, provided that the following elements are met.
    (1) Legal foundation. The State must have the legal authority to 
conduct environmental reviews of section 212 construction projects 
receiving SRF assistance. Such authority and supporting documentation 
must specify:
    (i) The mechanisms to implement mitigation measures to ensure that a 
project is environmentally sound;
    (ii) The legal remedies available to the public to challenge 
environmental review determinations and enforcement actions;
    (iii) The State agency primarily responsible for conducting 
environmental reviews;
    (iv) The extent to which environmental review responsibilities will 
be delegated to local recipients and will be subject to oversight by the 
primary State agency.
    (2) Interdisciplinary approach. The State must employ an 
interdisciplinary approach for identifying and mitigating adverse 
environmental effects including, but not limited to, those associated 
with other applicable Federal environmental authorities.
    (3) Decision documentation. The State must fully document the 
information, processes and premises that influence decisions to:
    (i) Proceed with a project contained in a finding of no significant 
impact (FNSI) following documentation in an environmental assessment 
(EA);
    (ii) Proceed or not proceed with a project contained in a record of 
decision (ROD) following preparation of a full environmental impact 
statement (EIS);

[[Page 575]]

    (iii) Reaffirm or modify a decision contained in a previously issued 
categorical exclusion (CE), EA/FNSI or EIS/ROD following a mandatory 5 
year environmental reevaluation of a proposed project; and
    (iv) If a State elects to implement processes for either 
partitioning an environmental review or CE from environmental review, 
the State must similarly document these processes in its proposed SERP.
    (4) Public notice and participation. (i) The State must provide 
public notice when a CE is issued or rescinded, a FNSI is issued but 
before it becomes effective, a decision issued 5 years earlier is 
reaffirmed or revised, and prior to initiating an EIS.
    (ii) Except with respect to a public notice of a categorical 
exclusion or reaffirmation of a previous decision, a formal public 
comment period must be provided during which no action on a project will 
be allowed.
    (iii) A public hearing or meeting must be held for all projects 
except for those having little or no environmental effect.
    (5) Alternatives Consideration. The State must have evaluation 
criteria and processes which allow for:
    (i) Comparative evaluation among alternatives including the 
beneficial and adverse consequences on the existing environment, the 
future environment and individual sensitive environmental issues that 
are identified by project management or through public participation; 
and
    (ii) Devising appropriate near-term and long-range measures to 
avoid, minimize or mitigate adverse impacts.
    (c) Alternative State environmental review process. The State may 
elect to apply an alternative SERP to non-equivalency section 212 
construction projects assisted by the SRF, provided that such process:
    (1) Is supported by a legal foundation which establishes the State's 
authority to review section 212 construction projects;
    (2) Responds to other environmental objectives of the State;
    (3) Provides for comparative evaluations among alternatives and 
account for beneficial and adverse consequences to the existing and 
future environment;
    (4) Adequately documents the information, processes and premises 
that influence an environmental determination; and
    (5) Provides for notice to the public of proposed projects and for 
the opportunity to comment on alternatives and to examine environmental 
review documents. For projects determined by the State to be 
controversial, a public hearing must be held.
    (d) EPA approval process. The RA must review and approve any State 
``NEPA-like'' and alternative procedures to ensure that the requirements 
for both have been met. The RA will conduct these reviews on the basis 
of the criteria for evaluating NEPA-like reviews contained in Appendix A 
to this part.
    (e) Modifications to approved SERPs. Significant changes to State 
environmental review procedures must be approved by the RA.



Sec. 35.3145  Application of other Federal authorities.

    (a) Generally. The State must agree to comply and to require all 
recipients of funds ``directly made available by'' capitalization grants 
to comply with applicable Federal authorities.
    (b) Informing EPA. The State must inform EPA when consultation or 
coordination by EPA with other Federal agencies is necessary to resolve 
issues regarding compliance with those requirements.
    (c) Civil Rights laws. All programs, projects and activities of the 
State capitalization grant recipient must be in compliance with the 
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d et seq., section 
504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 and 
section 13 of the Federal Water Pollution Control Act Amendments of 
1972, Public Law 92-500.
    (d) MBE/WBE requirements. Requirements for the participation of 
minority and women owned businesses (MBE/WBEs) will apply to assistance 
in an amount equaling the grant. To attain compliance with MBE/WBE 
requirements, the RA will negotiate an overall ``fair share'' objective 
with the State for MBE/WBE participation on these

[[Page 576]]

SRF funded activities. A fair share objective should be based on the 
amount of the capitalization grant award or other State established 
goals. The State may accomplish its fair share objective by requiring 
certain equivalency projects to undertake affirmative steps that will 
include the following:
    (1) Including small, minority and women's businesses on solicitation 
lists;
    (2) Assuring that small, minority and women's businesses are 
solicited whenever they are potential sources;
    (3) Dividing total requirements, when economically feasible, into 
small tasks or quantities to permit maximum participation by small, 
minority and women's businesses;
    (4) Establishing delivery schedules, when the requirements of the 
work permit, which will encourage participation by small, minority and 
women's businesses;
    (5) Using the services of the Small Business Administration and the 
Office of Minority Business Enterprise of the U.S. Department of 
Commerce, as appropriate; and
    (6) If the contractor awards subagreements, requiring the contractor 
to take the affirmative steps in paragraphs (d)(1) through (d)(5) of 
this section.
    (e) MBE/WBE Reporting requirements. The State must submit an MBE/WBE 
Utilization Report (EPA Form SF 334) within 30 days after the end of 
each Federal fiscal quarter during which the State or its subrecipients 
award any subagreements.



Sec. 35.3150  Intended Use Plan (IUP).

    (a) Purpose. The State must prepare a plan identifying the intended 
uses of the funds in the SRF and describing how those uses support the 
goals of the SRF. This Intended Use Plan (IUP) must be prepared annually 
and must be subjected to public comment and review before being 
submitted to EPA. EPA must receive the IUP prior to the award of the 
capitalization grant.
    (b) Contents--(1) List of projects. (i) The IUP must contain a list 
of publicly owned treatment works projects on the State's project 
priority list developed pursuant to section 216 of the Act, to be 
constructed with SRF assistance. This list must include: the name of the 
community; permit number or other applicable enforceable requirement, if 
available; the type of financial assistance; and the projected amount of 
eligible assistance.
    (ii) The IUP must also contain a list of the nonpoint source and 
national estuary protection activities under sections 319 and 320 of the 
Act that the State expects to fund from its SRF.
    (iii) The IUP must provide information in a format and manner that 
is consistent with the needs of the Regional Offices.
    (2) Short and long term goals. The IUP must describe the long and 
short term goals and objectives of the State's water pollution control 
revolving fund.
    (3) Information on the SRF activities to be supported. The IUP must 
include information on the types of activities including eligible 
categories of costs to receive assistance, types of assistance to be 
provided, and SRF policies on setting the terms for the various types of 
assistance provided by the fund.
    (4) Assurances and specific proposals. The IUP must provide 
assurances and specific proposals on the manner by which the State 
intends to meet the requirements of the following sections of this part: 
Sec. 35.3135(c); Sec. 35.3135(d); Sec. 35.3135(e); Sec. 35.3135(f); and 
Sec. 35.3140.
    (5) Criteria and method for distribution of funds.
    (i) The IUP must describe the criteria and method established for 
the distribution of the SRF funds and the distribution of the funds 
available to the SRF among the various types of assistance the State 
will offer.
    (ii) The IUP must describe the criteria and method the State will 
use to select section 212 treatment work project priority list and 
projects or programs to be funded as eligible activities for nonpoint 
sources and estuary protection management programs.
    (c) Amending the IUP. The IUP project list may be changed during the 
year under provisions established in the IUP as long as the projects 
have been previously identified through the public participation 
process.

(Approved by the Office of Management and Budget under control number 
2040-0118)


[[Page 577]]





Sec. 35.3155  Payments.

    (a) Payment schedule. The State must include with each application 
for a capitalization grant a draft payment schedule based on the State's 
projection of binding commitments in its IUP. The payment schedule and 
the specific criteria establishing the conditions under which the State 
may draw cash from its LOC shall be jointly established by the Agency 
and the State and included in the capitalization grant agreement. 
Changes to the payment schedule, which may be negotiated during the 
year, will be effected through an amendment to the grant agreement.
    (b) Estimated disbursements. With the first application for a 
capitalization grant, the State shall submit a schedule that reflects, 
by quarters, the estimated disbursements from that grant for the year 
following the grant award date. At the end of the third quarter of each 
Federal fiscal year thereafter, the State must provide the Agency with a 
schedule of estimated disbursements for the following Federal fiscal 
year. The State must advise the Agency when significant changes from the 
schedule of estimated disbursements are anticipated. This schedule must 
be developed in conformity with the procedures applicable to cash draws 
in Sec. 35.3160 and must be at a level of detail sufficient to allow the 
Agency and the State to jointly develop and maintain a forecast of cash 
draws.
    (c) Timing of payments. Payments to the LOC from a particular grant 
will begin in the quarter in which the grant is awarded and will end no 
later than the earlier of eight quarters after the capitalization grant 
is awarded or twelve quarters after advices of allowances are issued to 
the Regions.
    (d) General payment and cash draw rules. (1) Except as described in 
Sec. 35.3160(e) and Sec. 35.3160(g), payments will be based on the 
State's schedule of binding commitments.
    (2) The SRF or assistance recipient must first incur a cost, but not 
necessarily disburse funds for that cost, on an activity for which the 
State has entered into a binding commitment, in order to draw cash.
    (3) Cash draws will be available only up to the amount of payments 
made.
    (4) For loans or for refinancing or purchasing of municipal debt, 
planning, design and associated pre-building costs that are within the 
scope of a project built after March 7, 1985, may be included in the 
assistance agreement regardless of when they were incurred, provided 
these costs are in conformity with title VI of the Act. The State may 
draw cash for these incurred pre-building costs immediately upon 
executing an assistance agreement.
    (5) A State may draw cash from the LOC equal to the proportional 
Federal share at which time the State will provide its proportional 
share. The Federal proportional share will be 83\1/3\ percent of 
incurred costs and the State's proportional share will be 16\2/3\ 
percent of the incurred costs, except as described below.
    (i) Where the State provides funds in excess of the required 20 
percent match, the proportional Federal share drawn from the LOC will be 
the ratio of Federal funds in the capitalization grant to the sum of the 
capitalization grant and the State funds. Alternatively, the State may 
identify a group of activities approximately equal to 120 percent of the 
grant amount, and draw cash from the LOC for 83\1/3\ percent of the 
incurred costs of the identified activities.
    (ii) The Federal proportional share may exceed 83\1/3\ percent where 
a State is given credit for its match amount as a result of funding 
activities in prior years (but after March 7, 1985), or for banking 
excess match in the SRF in prior years and disbursing these amounts 
prior to drawing cash. If the entire amount of the State's required 
match has been disbursed in advance, the Federal proportional share 
would be 100 percent.



Sec. 35.3160  Cash draw rules.

    (a) Loans. The State may draw cash from the LOC when the SRF 
receives a request from a loan recipient, based on incurred costs, 
including prebuilding and building costs.
    (b) Refinance or purchase of municipal debt. (1) Cash draw for 
completed construction. Except as indicated in paragraph (b)(2) of this 
section, cash draws shall be made at a rate no greater than equal 
amounts over the maximum

[[Page 578]]

number of quarters that payments can be made, pursuant to 
Sec. 35.3155(c), and up to the portion of the LOC committed to the 
refinancing or purchase of the local debt. Cash draws for incurred 
building costs will generally be treated as refinanced costs.
    (2) The State may immediately draw cash for up to five percent of 
each fiscal year's capitalization grant or two million dollars, 
whichever is greater, to refinance or purchase local debt.
    (3) Projects or portions of projects not constructed. The State may 
draw cash based on incurred construction costs, as set forth in 
Sec. 35.3160(a).
    (4) Incremental disbursement bonds. For the purchase of incremental 
disbursement bonds from local governments, cash draws will be based on a 
schedule that coincides with the rate at which construction related 
costs are expected to be incurred for the project.
    (c) Purchase of insurance. The State may draw cash to purchase 
insurance as premiums are due.
    (d) Guarantees and security for bonds. (1) Cash draw in the event of 
default. In the event of an imminent default in debt service payments on 
the guaranteed/secured debt, the State can draw cash immediately up to 
the total amount of the LOC committed to the guarantee/security. If a 
balance remains in the guarantee portion of the LOC reserve after the 
default is covered, the State must negotiate a revised schedule for the 
remaining amount of the guarantee/security.
    (2) Cash draw in the absence of default. (i) The State can draw cash 
up to the amount of the LOC dedicated for the guarantee or security in 
accordance with a schedule based on the national title II annual outlay 
rate (Yr 1: 7%; Yr 2: 35%; Yr 3: 26%; Yr 4: 20%; Yr 5: 12%), or actual 
construction cost. In the latter case, the amount of the cash draw would 
be the actual construction costs multiplied by the Federal share of the 
reserve multiplied by the ratio of the reserve to either the amount 
guaranteed or the proceeds of the bond issue.
    (ii) In addition, in the case of a security the State can identify a 
group of projects whose value equals approximately the total of that 
portion of the LOC and the State match dedicated as a security. The 
State can then draw cash based on the incurred construction costs of the 
selected projects only, multiplied by the ratio of the Federal portion 
of the security to the entire security.
    (3) Aggressive leveraging exception. Where the cash draw rules 
discussed in Sec. 35.3160(d) would significantly frustrate a State's 
program, the Agency may permit an exception to these cash draw rules and 
provide for a more accelerated cash draw, where the State can 
demonstrate that:
    (i) There are eligible projects ready to proceed in the immediate 
future with enough costs to justify the amount of the secured bond 
issue;
    (ii) The absence of cash on an accelerated basis will substantially 
delay these projects;
    (iii) If accelerated cash draws are allowed, the SRF will provide 
substantially more assistance; and
    (iv) The long term viability of the State program to meet water 
quality needs will be protected.
    (4) Cash draw limitation. When the LOC is used for securing State 
issued bonds, cash draws cannot be made at a rate greater than equal 
amounts over the maximum number of quarters that payments can be made, 
pursuant to Sec. 35.3155(c). Exceptions to this limitation are in cases 
of default (see Sec. 35.3160(d)(1)) and where cash draws are based on 
construction costs for all projects, as in Sec. 35.3160(d)(2)(i).
    (e) Administrative expenses. (1) Payments. One payment will be made 
at the time of the grant, based on the portion of the LOC estimated to 
be used for administrative expenses.
    (2) Cash draw. The State can draw cash based on a schedule that 
coincides with the rate at which administrative expenses will be 
incurred, up to that portion of the LOC dedicated to administrative 
expenses.
    (f) Withholding payments. If a State fails to take corrective action 
in accordance with section 605 of the Act, the Agency shall withhold 
payments to the SRF. Once a payment has been made by the Agency, that 
payment and cash draws from that payment will not be subject to 
withholding because of a State's failure to take corrective action.

[[Page 579]]



Sec. 35.3165  Reports and audits.

    (a) Annual report. The State must provide an Annual Report to the RA 
beginning the first fiscal year after it receives payments under title 
VI. The State should submit this report to the RA according to the 
schedule established in the grant agreement.
    (b) Matters to establish in the annual report. In addition to the 
requirements in section 606(d) of the Act, in its annual report the 
State must establish that it has:
    (1) Reviewed all SRF funded section 212 projects in accordance with 
the approved environmental review procedures;
    (2) Deposited its match on or before the date on which each 
quarterly grant payment was made;
    (3) Assured compliance with the requirements of Sec. 35.3135(f);
    (4) Made binding commitments to provide assistance equal to 120 
percent of the amount of each grant payment within one year after 
receiving the grant payment pursuant to Sec. 35.3135(c);
    (5) Expended all funds in an expeditious and timely manner pursuant 
to Sec. 35.3135(d); and
    (6) First used all funds as a result of capitalization grants to 
assure maintenance of progress toward compliance with the enforceable 
requirements of the Act pursuant to Sec. 35.3135(e).
    (c) Annual review--(1) Purpose. The purpose of the annual review is 
to assess the success of the State's performance of activities 
identified in the IUP and Annual Report, and to determine compliance 
with the terms of the capitalization grant agreement. The RA will 
complete the annual review according to the schedule established in the 
grant agreement.
    (2) Records access. After reasonable notice by the RA, the State or 
assistance recipient must make available to the EPA such records as the 
RA reasonably requires to review and determine State compliance with the 
requirements of title VI. The RA may conduct onsite visits as needed to 
provide adequate programmatic review.
    (d) Annual audit. (1) At least once a year the RA (through the 
Office of the Inspector General) will conduct, or require the State to 
have independently conducted, a financial and compliance audit of the 
SRF and the operations of the SRF. If the State is required to have an 
independently conducted audit performed, the State may designate an 
independent auditor of the State to carry out the audit or may 
contractually procure the service.
    (2) The auditor can be a certified public accountant, a public 
accountant licensed on or before December 31, 1970, or a governmental 
auditor who meets the qualification standards (Government Auditing 
Standards). In addition, the auditor must meet the independence standard 
as enumerated by the General Accounting Office and American Institute of 
Certified Public Accountants. The Office of the Inspector General may 
arrange for an EPA audit if the State fails to conduct the audit or if 
the State's review is otherwise unsatisfactory.
    (3) The audit report required under section 606(b) must contain an 
opinion on the financial statements of the SRF and its internal 
controls, and a report on compliance with title VI.
    (4) The audit report must be completed within one year of the end of 
the appropriate accounting period and submitted to the Office of the 
Inspector General within 30 days of completion. In cases of State 
conducted audits, the State will be notified within 90 days as to the 
acceptability of the audit report and its findings. Audits may be done 
in conjunction with the Single Audit Act.

(Approved by the Office of Management and Budget under control number 
2040-0118)



Sec. 35.3170  Corrective action.

    (a) Causes. If the RA determines that the State has not complied 
with requirements under title VI, the RA will notify the State of such 
noncompliance and prescribe the necessary corrective action. Failure to 
satisfy the terms of the capitalization grant agreement, including unmet 
conditions or assurances or invalid certifications, is grounds for a 
finding of noncompliance. In addition, if the State does not manage the 
SRF in a financially sound manner (e.g. allows consistent and 
substantial failures of loan repayments), the RA may take corrective 
action as provided under this section.
    (b) RA's course of action. In making a determination of 
noncompliance with

[[Page 580]]

the capitalization grant agreement and devising the corrective action, 
the RA will identify the nature and cause of the problems. The State's 
corrective action must remedy the specific instance of noncompliance and 
adjust program management to avoid noncompliance in the future.
    (c) Consequences for failure to take corrective action. If within 60 
days of receipt of the noncompliance notice, a State fails to take the 
necessary actions to obtain the results required by the RA, or to 
provide an acceptable plan to achieve the results required, the RA shall 
withhold payments to the SRF until the State has taken acceptable 
actions. If the State fails to take the necessary corrective action 
deemed adequate by the RA within twelve months of receipt of the 
original notice, any withheld payments shall be deobligated and 
reallotted to other States.
    (d) Releasing payments. Once the State has taken the corrective 
action deemed necessary and adequate by the RA, the withheld payments 
will be released and scheduled payments will recommence.

Appendix A--Criteria for evaluating a State's proposed NEPA-like process

    The following criteria will be used by the RA to evaluate a proposed 
SERP.
    (A) Legal foundation. Adequate documentation of the legal authority, 
including legislation, regulations or executive orders and/or Attorney 
General certification that authority exists.
    (B) Interdisciplinary approach. The availability of expertise either 
in-house or otherwise accessible to the State Agency.
    (C) Decision documentation. A description of a documentation process 
adequate to explain the basis for decisions to the public.
    (D) Public notice and participation. A description of the process, 
including routes of publication (e.g., local newspapers and project 
mailing list), and use of established State legal notification systems 
for notices of intent, and criteria for determining whether a public 
hearing is required. The adequacy of a rationale where the comment 
period differs from that under NEPA and is inconsistent with other State 
review periods.
    (E) Consider alternatives. The extent to which the SERP will 
adequately consider:
    (1) Designation of a study area comparable to the final system;
    (2) A range of feasible alternatives, including the no action 
alternative;
    (3) Direct and indirect impacts;
    (4) Present and future conditions;
    (5) Land use and other social parameters including recreation and 
open-space considerations;
    (6) Consistency with population projections used to develop State 
implementation plans under the Clean Air Act;
    (7) Cumulative impacts including anticipated community growth 
(residential, commercial, institutional and industrial) within the 
project study area; and
    (8) Other anticipated public works projects including coordination 
with such projects.



                          Subpart L--[Reserved]



               Subpart M--Grants for Technical Assistance

    Authority: 42 U.S.C. 9617(e); sec. 9(g), E.O. 12580, 52 FR 2923, 3 
CFR, 1987 Comp. P. 193.

    Source: 57 FR 45316, Oct. 1, 1992, unless otherwise noted.



Sec. 35.4000   Authority.

    This subpart is issued under section 117(e) of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 
(CERCLA), as amended, 42 U.S.C. 9617(e).



Sec. 35.4005   Purpose and availability of referenced material.

    (a) This subpart codifies policies and procedures for Technical 
Assistance Grants (TAGs) awarded by EPA to groups of individuals. This 
subpart establishes the procedures for accepting and evaluating 
applications, and for awarding and managing TAGs. These provisions 
supplement the EPA general assistance regulations 40 CFR part 30 and 40 
CFR part 33 and are applicable to all applicants/recipients of TAGs.
    (b) Any reference to documents made in this subpart necessary to 
apply for a TAG (i.e., OMB Circulars and EPA forms SF-424, 269, 270) are 
available through EPA Headquarters and Regional Offices listed in 40 CFR 
1.7.



Sec. 35.4010   Definitions.

    As used in this subpart, the following words and terms shall have 
the meaning set forth below:

[[Page 581]]

    Affected means subject to an actual or potential health, economic or 
environmental threat arising from a release or a threatened release at a 
facility listed on the National Priorities List (NPL) or proposed for 
listing under the National Oil and Hazardous Substances Pollution 
Contingency Plan (NCP) where a response action under CERCLA has begun. 
Examples of affected parties include individuals who live in areas 
adjacent to NPL facilities whose health is or may be endangered by 
releases of hazardous substances at the facility, or whose economic 
interests are directly threatened or harmed.
    Applicant means any group of individuals that files an application 
for a TAG.
    Application means a completed formal written request for a TAG that 
is submitted to a State or the EPA on EPA form SF-424, Application for 
Federal Assistance (Non-construction Programs).
    Award means the TAG agreement signed by both EPA and the recipient.
    Award Official means the EPA official delegated the authority to 
sign grant agreements.
    Budget means the financial plan for the spending of all Federal and 
matching funds (including in-kind contributions) for a TAG project as 
proposed by the applicant, and negotiated with and approved by the Award 
Official.
    Budget period means the length of time specified in a grant 
agreement during which the recipient may spend or obligate Federal 
funds. The budget period may not exceed three (3) years. A TAG project 
period may be comprised of several budget periods.
    Cash contribution means actual non-Federal dollars, or Federal 
dollars if expressly authorized by statute to do so, that a recipient 
spends for goods and services and real or personal property used to 
satisfy the matching funds requirement.
    Contract means a written agreement between the recipient and another 
party (other than a public agency) for services or supplies necessary to 
complete the TAG project. Contracts include contracts and subcontracts 
for personal and professional services or supplies necessary to complete 
the TAG project, and agreements with consultants, and purchase orders.
    Contractor means any party (e.g., Technical Advisor) to whom a 
recipient awards a contract.
    EPA means the Environmental Protection Agency. Where a State 
administers the TAG Program, the term ``EPA'' may mean a State agency.
    Federal facility means a facility that is owned or operated by a 
department, agency, or instrumentality of the United States.
    Grant agreement means the legal document that transfers money, or 
anything of value, to a recipient to accomplish the purpose of the TAG 
project. It specifies budget and project periods, the Federal budget 
share of eligible project costs, a description of the work to be 
accomplished, and any terms and conditions.
    In-kind contribution means the value of a non-cash contribution used 
to meet a recipient's matching funds requirement in accordance with 40 
CFR 30.307(b). An in-kind contribution may consist of charges for 
equipment or the value of goods and services necessary to and directly 
benefiting the EPA-funded project.
    Matching funds means the portion of allowable project costs that a 
recipient contributes toward completing the TAG project using non-
Federal funds or Federal funds if expressly authorized by statute. The 
match may include in-kind as well as cash contributions.
    Operable unit means a discrete action that comprises an incremental 
step toward comprehensively addressing site problems.
    Potentially Responsible Party (PRP) means any individual(s) or 
company(ies) (such as owners, operators, transporters or generators) 
potentially responsible under sections 106 or 107 of CERCLA for the 
contamination problems at a Superfund site.
    Recipient means any group of individuals that has been awarded a 
TAG.
    Recipient's project manager means the person legally authorized to 
obligate the organization to the terms and conditions of EPA's 
regulations and the grant agreement, and designated by the recipient to 
serve as its principal contact with EPA.

[[Page 582]]

    Response action means all activities undertaken to address the 
problems created by hazardous substances at a National Priorities List 
site.
    Start of response action means the point in time when there is a 
guarantee or set-aside of funding either by EPA, other Federal agencies, 
States, or PRPs in order to begin response activities at a site.
    Waiver means excusing recipients from following certain anticipated 
regulatory or administrative requirements if; the authority to issue a 
waiver is provided in the regulation itself; and the Agency believes 
sufficient justification exists to approve such action. The Award 
Official has the authority to issue a waiver. Deviation means an 
exemption from certain provisions of existing regulations, which may be 
necessary in some unforeseen instances. The Director, Grants 
Administration Division, is authorized under 40 CFR 30.1001(b) to 
approve deviations from the requirements of regulations (except for 
those that implement statutory or executive order requirements) when 
such situations warrant special consideration.



Sec. 35.4013  Cost principles.

    (a) Recipients and non-profit contractors must comply with the cost 
principles in OMB Circular A-122.
    (b) Profit-making contractors and subcontractors must comply with 
the cost principles in the Federal Acquisition Regulation (48 CFR part 
31).



Sec. 35.4015  State administration of the program.

    (a) Effective October 1, 1992, the Agency will accept applications 
for and award TAGs in consultation with the States.
    (b) The TAG Program will be available at an NPL site where a State 
response action is scheduled to begin or is underway and a CERCLA-funded 
cooperative or other written agreement exists between the Agency and the 
State.
    (c) States wishing to administer the TAG Program must inform the 
appropriate EPA Regional administrator. If a State elects to administer 
the program, it must do so in conformity with this subpart. Where States 
administer the program, EPA will have an oversight role.
    (d) A State that chooses to administer the TAG Program will receive 
technical assistance funds plus administrative costs from the Agency 
under a cooperative agreement. A State will receive $10,000 for 
administrative costs for the first TAG. For each subsequent TAG, the 
State will receive an amount equal to eight (8) percent of the TAG. 
Using the criteria established under this subpart, the State may select 
a qualified recipient and provide assistance in either of two ways:
    (1) A State will pass through technical assistance funds to a 
recipient group by way of a subgrant, and reimburse the recipient group 
for its expenditures as provided at Sec. 35.4080. A State that elects 
this option is also responsible for monitoring the subgrant to ensure 
that recipients comply with its terms and with 40 CFR parts 30 and 33; 
or
    (2) If a recipient group agrees, a State will use TAG funds to 
obtain the services of a Technical Advisor and provide those services to 
a grant recipient in lieu of cash. The recipient group may work closely 
with the State in advertising, reviewing bids and recommending a 
Technical Advisor, and managing the Technical Advisor. The State will 
make the final selection of the technical advisor. A State that elects 
this option becomes directly responsible for awarding the technical 
assistance contracts, submitting financial and progress reports, and for 
disbursing all TAG funds in compliance with applicable EPA regulations 
and requirements.



Sec. 35.4020  Responsibility requirements.

    (a) An applicant must meet the minimum administrative and management 
capability requirements 40 CFR 30.301. Thus each applicant must 
demonstrate that it has established reliable procedures or has plans for 
establishing reliable procedures for record-keeping and financial 
accountability related to the management of the TAG. These procedures 
must be in effect before the recipient incurs any costs. If EPA 
concludes that the applicant is not capable of meeting the 
responsibility requirements, the application will be rejected.

[[Page 583]]

    (b) Each recipient of a TAG must be incorporated as a non-profit 
organization for the purpose of addressing the Superfund site for which 
the grant is provided in order to receive a grant, except as provided in 
paragraph (c) of this section. At the time of award, a recipient must 
either be incorporated or must demonstrate to EPA that the group has 
filed the necessary documents for incorporation with the appropriate 
State agency. No later than the time of the first request for 
reimbursement for costs incurred, a recipient must submit proof to EPA 
that the group has been incorporated by the State.
    (c) Unless a consolidation agreement makes site-specific 
incorporation necessary, a previously incorporated group that includes 
all the individuals and groups that joined in applying for the TAG shall 
not be required to reincorporate for the specific purpose of 
representing affected individuals at the site provided that the group 
can demonstrate that it has a substantial history of involvement at the 
site.



Sec. 35.4025  Eligible applicants.

    Eligible applicants, except as provided in Sec. 35.4030, are any 
group of individuals that may be affected by a release or a threatened 
release at any facility that is listed on the NPL or is proposed for 
listing under the NCP and at which a response action has begun.



Sec. 35.4030  Ineligible applicants.

    (a) Potentially responsible parties (PRPs) are ineligible to receive 
or be represented in groups receiving or using TAGs.
    (1) No group established or sustained by a PRP shall be eligible for 
a TAG.
    (2) No group that receives services provided by or paid for by a PRP 
shall be eligible for a TAG.
    (3) For an applicant to obtain a grant it must establish an identity 
separate from that of an entity that is ineligible under Sec. 35.4030 
(a)(1) or (2) by making a reasonable demonstration of independence from 
the ineligible entity. Such a demonstration requires, at a minimum, a 
showing that the applicant has a formal legal identity (e.g., officers) 
and a substantive existence, including finances, separate and distinct 
from that of the ineligible entity.
    (b) The following groups and organizations are also ineligible to 
receive or be represented in groups receiving or using TAGs.
    (1) Corporations that are not incorporated for the specific purpose 
of representing affected individuals at the site except as provided in 
Sec. 35.4020(c);
    (2) Academic institutions;
    (3) Political subdivisions (e.g., townships and municipalities); and
    (4) Groups established or presently sustained by ineligible entities 
under Sec. 35.4030 (b) through (c) (including emergency planning 
committees and citizen advisory boards who may be precluded from acting 
independently).
    (c) This section shall not preclude any individual affected by a 
Superfund site from participating in a recipient group in his or her 
capacity as an individual. However, an individual whose financial 
involvement in a PRP (as other than an employee or contractor) is 
determined by the Award Official to be sufficiently substantial may be 
precluded from participation in a recipient group in any capacity.



Sec. 35.4035  Evaluation criteria.

    (a) EPA will award a TAG only after it has determined that all 
eligibility and responsibility requirements listed in Sec. Sec. 35.4020, 
35.4025, and 35.4030 are met, and after review of the applicant's 
qualifications in the narrative section of the grant application. Each 
applicant will be required to provide information on how it meets the 
eligibility criteria in the grant application. The ``Applicant 
Qualifications'' section is Part IV of SF-424.
    (b) Sole Applicant. After the Letter of Intent process (see 
Sec. 35.4040), if there is still only one group, the evaluation process 
will consist of the Agency ensuring that the applicant meets the 
criteria stated in Sec. 35.4035(c) in addition to the administrative and 
management capability requirements, and can demonstrate that it is 
representative of the community affected by a release or a threatened 
release at a facility that is listed on the NPL or is proposed for 
listing under the NCP and where a response action has begun, as 
demonstrated by fulfillment of the criteria

[[Page 584]]

in Sec. 35.4035(c). Once these requirements have been met by the sole 
applicant, the Agency may award a TAG.
    (c) Multiple Applicants. Where there are competing applicants EPA 
will evaluate the strengths and weaknesses of each applicant. EPA will 
rank each applicant relative to other applicants. Each criterion is 
assigned a weight showing its relative importance. EPA will rank each 
applicant by utilizing criteria described below. In order to qualify, 
applicants must meet criterion 1 and/or 5 and not score zero on criteria 
2, 3, or 4.
    (1) The presence of an actual or potential health threat posed to 
group members by the site (this criterion can be met by establishing a 
demonstrable threat to members' health or a reasonable belief that the 
site poses a substantial threat to their health) (30 points);
    (2) The applicant best represents groups and individuals affected by 
the site (20 points);
    (3) The identification of how the group plans to use the services of 
a Technical Advisor throughout the Superfund response action (20 
points);
    (4) The demonstrated intention and ability of the applicant to 
inform others in the community of the information provided by the 
Technical Advisor (20 points); and
    (5) The presence of an actual or potential economic threat or threat 
of an impaired use or enjoyment of the environment to group members that 
is caused by the site (this criterion can be met by establishing a 
demonstrable economic or environmental threat to group members or a 
reasonable belief that the site poses a substantial economic or 
environmental threat) (10 points).



Sec. 35.4040  Notification process.

    (a) Groups wishing to apply for a TAG should first submit a Letter 
of Intent (LOI) to EPA. EPA will respond in writing to an LOI. A grant 
application submitted by a community group without having first 
submitted an LOI will fulfill the LOI requirement, thus initiating the 
notification process.
    (b) Upon receipt of the first LOI, EPA will undertake certain 
activities depending on the schedule for work at the site:
    (1) If commencement of the remedial investigation or a removal 
action is not underway or scheduled to begin, EPA will advise the group 
in writing that grant applications for the site are not yet being 
accepted. EPA may informally notify other interested groups that it has 
received an LOI; or
    (2) If a response action is already underway or scheduled to begin, 
EPA may conduct mailings and/or meetings, in addition to the required 
public notice, to provide formal notice to other interested parties that 
a grant for the site soon may be awarded. These formal notification 
activities will generally be conducted far enough in advance of the 
start of the response action to allow time for groups to consolidate, 
apply for and receive a grant award, and procure a Technical Advisor 
before work commences at the site.
    (c) Other potential applicants will have 30 days to contact the 
original applicant to form a coalition. If the community groups are 
unable to form a coalition, they must notify EPA within the 30 days. EPA 
will then accept separate applications from all interested groups for an 
additional 30-day period. EPA may consider written requests for 
extensions of this time. If there is a qualified applicant, a grant will 
be awarded from among the competing applications based on the evaluation 
criteria described in Sec. 35.4035. The schedule for response activities 
at a site will not be affected by the TAG application process.



Sec. 35.4045  Submission of application.

    (a) After meeting the LOI requirement, the applicant must then 
submit a TAG application on SF-424.
    (b) An applicant must submit a budget clearly showing the proposed 
expenditure of funds, how it will provide the cash and/or in-kind 
contributions to meet the ``match'' requirement, and how the funds and 
other resources, including the ``match'' will be used to complete the 
TAG project. As part of the application process, the applicant must 
submit the following certifications:
    (1) Drug-Free Workplace,

[[Page 585]]

    (2) Debarment, Suspension, and Other Responsibility Matters, and
    (3) Anti-Lobbying (if the grant is $100,000 or more).



Sec. 35.4050  Timing of award.

    An award of a TAG will be made no earlier than the start of the 
response action. Grants to qualified applicants could be delayed 
depending upon the availability of funds for the Superfund program.



Sec. 35.4055  Ineligible activities.

    The following activities are ineligible for assistance under this 
program:
    (a) Litigation or underwriting legal actions such as paying for 
attorney fees or paying for the time of the Technical Advisor to assist 
an attorney in preparing a legal action or preparing for and serving as 
an expert witness at any legal proceeding regarding or affecting the 
site;
    (b) Political activity and lobbying in accordance with OMB Circular 
A-122;
    (c) Other activities inconsistent with the cost principles stated in 
OMB Circular A-122, ``Cost Principles for Non-Profit Organizations'';
    (d) Tuition or other expenses for recipient group members or 
Technical Advisors to attend training, seminars or courses, except for 
required Health and Safety training for the Technical Advisor to allow 
access to the local Superfund site, provided written permission is 
obtained in advance from the Regional EPA Office. Training may be 
approved for one time only at an amount not to exceed $1,000.00;
    (e) Any activities or expenditures for recipient group members' 
travel;
    (f) Generation of new primary data such as well drilling and 
testing, including split sampling;
    (g) Reopening final Agency decisions such as the Records of Decision 
or conducting disputes with the Agency in accordance with its dispute 
resolution procedures set forth at 40 CFR part 30, subpart L; and
    (h) Epidemiological or health studies, such as blood or urine 
testing.



Sec. 35.4060  Eligible activities.

    TAGs may be used to obtain technical assistance in interpreting 
information with regard to the nature of the hazard, remedial 
investigation and feasibility study, record of decision, remedial 
design, selection and construction of remedial action, operation and 
maintenance, or a significant removal action at a facility that is 
listed on the NPL or proposed for listing and at which a response action 
has begun. TAGs shall be used to fund activities that will contribute to 
the public's ability to participate in the decision-making process by 
improving the public's understanding of overall conditions and 
activities.



Sec. 35.4065  Technical advisor's qualifications.

    (a) A Technical Advisor must possess the following credentials:
    (1) Demonstrated knowledge of hazardous or toxic waste issues;
    (2) Academic training in a relevant discipline (e.g., biochemistry, 
toxicology, environmental sciences, engineering); and
    (3) Ability to translate technical information into terms 
understandable to lay persons.
    (b) A Technical Advisor should possess the following credentials:
    (1) Experience working on hazardous or toxic waste problems;
    (2) Experience in making technical presentations;
    (3) Demonstrated writing skills; and
    (4) Previous experience working with affected individuals or 
community groups or other groups of individuals.



Sec. 35.4066  Procurement.

    (a) Competition. (1) The recipient must provide maximum open and 
free competition.
    (2) Recipients must not unduly restrict or eliminate competition.
    (3) The individual(s) developing the specifications will be excluded 
from competition for the Technical Advisor and/or Grant Administrator 
position.
    (b) Documentation. Recipients must document all procurement 
activities with written records that furnish reasons for decisions.
    (c) Cost. (1) The recipient must determine that all costs are 
reasonable.
    (2) The recipient must conduct a cost analysis of all contracts over 
$25,000 and all change orders regardless of dollar value.

[[Page 586]]

    (d) Debarment. Recipients and contractors must not make any contract 
at any time to anyone who is on the ``List of Parties Excluded from 
Federal Procurement or Nonprocurement Programs.''
    (e) Recipient responsibility. (1) The recipient is responsible for 
the settlement and satisfactory completion of all contractual and 
administrative issues arising out of contracts entered into under a 
grant.
    (2) The recipient must ensure that the contractor(s) perform in 
accordance with the terms and conditions of the contract.
    (f) Responsible contractors. The recipient shall award contracts 
only to responsible contractors that possess the potential ability to 
perform successfully under the terms and conditions of a proposed 
contract.
    (g) Disadvantaged business enterprises. The recipient shall comply 
with the ``Small, Minority, Women's, and Labor Surplus Area Business'' 
requirements in Sec. 33.240.
    (h) Illegal contracts. Recipients may not award cost-plus-
percentage-of-cost or percentage-of-construction-cost contracts.
    (i)  Contract provisions. The recipient must include the following 
provisions in each contract:
    (1) Statement of work;
    (2) Schedule for performance;
    (3) Due dates for deliverables;
    (4) Total cost of the contract;
    (5) Payment provisions; and
    (6) The following clauses from 40 CFR 33.1030, ``Model contract 
clauses'':
    (i) Supersession;
    (ii) Privity of Contract;
    (iii) Termination;
    (iv) Remedies;
    (v) Audit, Access to Records;
    (vi) Covenant Against Contingent Fees;
    (vii) Gratuities;
    (viii) Responsibility of the Contractor; and
    (ix) Final Payment.
    (j) Subcontracting. A contractor must comply with the following 
provisions in its award of subcontracts (these requirements do not apply 
to subcontractors for the supply of materials to produce equipment, 
materials, and subcontracts for catalog, off-the-shelf, or manufactured 
items.):
    (1) Section 35.4066(b) Documentation;
    (2) Section 35.4066(c) Cost;
    (3) Section 35.4066(d) Debarment;
    (4) Section 35.4066(f) Responsible contractor;
    (5) Section 35.4066(g) Disadvantaged business enterprises;
    (6) Section 35.4066(i) Illegal contracts; and
    (7) Section 35.4066(j) Contract provisions.
    (k) Bid protests. The recipient must establish a procedure for 
resolving protests which complies with the provisions of 40 CFR part 33, 
Subpart G--- Protests.
    (l) Competitive procurements. Recipients shall not divide any 
procurements into smaller parts to get under any dollar limit.
    (1) If the aggregate amount of the purchase is $1,000 or less, the 
recipient may make the purchase as long as the recipient determines that 
the price is reasonable. No oral or written solicitations are necessary.
    (2) If the aggregate amount of the proposed contract is over $1,000 
but less than $25,000, the recipient must obtain and document oral or 
written price quotations from two or more qualified sources.
    (3) If the aggregate amount of the proposed contract is $25,000 to 
$50,000, the recipient must:
    (i) Solicit written bids from three or more sources who are willing 
and able to do the work;
    (ii) Provide potential sources the scope of the work to be performed 
and the criteria the recipient will use to evaluate bids;
    (iii) Objectively evaluate all bids submitted; and
    (iv) Notify all unsuccessful bidders.
    (4) If the aggregate amount of the proposed contract is greater than 
$50,000, the recipient must follow the procurement rules in 40 CFR part 
33.
    (m) Non-competitive procurements. If an adequate number of potential 
sources cannot be identified, the recipient may request written 
authority from the EPA Award Official to award a contract to a sole 
bidder.

[[Page 587]]



Sec. 35.4067  Contract review.

    Each applicant must inform EPA of any proposed contract over $1000 
and must provide EPA the opportunity to review the contract before it is 
awarded or amended.



Sec. 35.4070  Sanctions.

    If EPA determines that the recipient has failed to comply with any 
terms of the grant agreement, EPA will initiate an appropriate measure 
as set forth at 40 CFR part 30, subpart I.



Sec. 35.4075  Pre-award costs.

    (a) Grant funds may not be used to pay costs incurred prior to award 
of the TAG, except as provided in paragraph (b) of this section.
    (b) Necessary and reasonable costs of incorporation, if incurred for 
the sole purpose of complying with this subpart, will be eligible pre-
award costs and may be charged to the TAG or count toward the matching 
funds requirement described in Sec. 35.4085(a)(2).



Sec. 35.4080  Method of payment.

    All grant recipients shall be reimbursed for grant-related eligible, 
allocable, allowable, and reasonable costs up to the amount of the TAG 
which have been incurred and which the recipients are currently and 
legally obligated to pay. Recipients may submit monthly or quarterly 
requests for reimbursement to the Agency on SF-270--Request for Advance 
or Reimbursement, or the appropriate State form if the State is 
administering the TAG Program. Costs incurred greater than $500 may be 
submitted monthly.



Sec. 35.4085  Grant limitations.

    TAGs will be awarded subject to the following limitations:
    (a) The recipient must contribute 20 percent of the total costs of 
the TAG project, except as provided in Sec. 35.4090(b).
    (1) Absent specific statutory authority, no Federal funds may be 
included in the matching share.
    (2) To meet the matching funds requirement, the recipient may use 
cash and/or in-kind contributions.
    (b) The TAG award will not initially exceed $50,000 for a single 
recipient, except in the case of a single application covering multiple 
sites.
    (c) Not more than one TAG may be awarded for any site.
    (d) Administrative costs of the grant may not exceed 20 percent of 
project costs. Administrative costs may include, but are not limited to, 
paying an individual(s) to administer the grant.



Sec. 35.4090  Waivers.

    (a) Waivers of the $50,000 per recipient limit may be granted under 
either or both of the following circumstances:
    (1) Multiple sites. In order to reduce the administrative burden to 
a recipient group where there are several eligible sites geographically 
close to each other, the limitation that a single recipient may not 
receive more than $50,000 may be waived by the Agency (e.g., 3 sites x 
$50,000 = grant of $150,000).
    (2) Complex sites. The Award Official may waive the $50,000 per 
recipient limit if the recipient group demonstrates that the site is 
especially complex and that the following criteria have been met:
    (i) Site(s) characteristics indicate that due to the nature or 
volume of the site-related information for review, additional funds are 
necessary;
    (ii) The recipient's management of any previous TAG award(s) was 
satisfactory and that costs incurred under the previous award are 
allowable and reasonable; and
    (iii) No recipient group may receive more than $100,000 in TAG 
awards for any one site.
    (b) Waivers of the Matching Funds Requirement. The Award Official 
may waive all or part of the recipient's matching funds requirement only 
after establishing that:
    (1) There is a need for a waiver because providing the 
``match''would constitute an unusual financial hardship;
    (2) A good faith effort at raising the ``match,'' including 
obtaining in-kind services, has failed; and
    (3) The waiver is necessary to facilitate public participation in 
the selection of remedial action at the facility.

[[Page 588]]

    (c) Where a TAG recipient subsequently obtains a waiver of the 
matching funds requirement, the grant agreement must be amended. (See 40 
CFR part 30, subpart G.)
    (d) No waivers of the matching funds requirement will be granted by 
the Agency once the Record of Decision has been issued at the last 
operable unit at the site.



Sec. 35.4100  Disputes.

    (a) If the Agency administers the TAG Program, the Agency shall 
review disputes between Agency officials and the applicant or recipient 
in accordance with its dispute resolution procedures set forth at 40 CFR 
part 30, subpart L.
    (b) If the State administers the TAG Program, any applicant or 
recipient who has been adversely affected by a State's action or 
omission may request Agency review of such action or omission, but must 
first submit a petition for review to the State agency that made the 
initial decision. The State must provide, in writing, normally within 45 
days of the date it receives the petition, the basis for its decision 
regarding the disputed action or omission. The final State decision must 
be labeled as such and, if adverse to the applicant or recipient, must 
include notice of the right to request Agency review of the State 
decision under this section. A State's failure to address the disputed 
action or omission in a timely fashion, or in writing, will not preclude 
Agency review.
    (1) Requests for Agency review must include:
    (i) A copy of any written State decision;
    (ii) A statement of the amount in dispute;
    (iii) A description of the issues involved; and
    (iv) A concise statement of the objections to the State decision.
    (2) The request must be filed by registered mail, return receipt 
requested, within 30 days of the date of the State decision or within a 
reasonable time if the State fails to respond in writing to the request 
for review.
    (c) The Agency shall determine whether the State's review is 
comparable to a Dispute Decision Official's (DDO) review pursuant to 40 
CFR part 30, subpart L. If the State's review is comparable, the 
Regional Administrator will conduct the Agency's review of the State's 
decision. If the State's review is not comparable, an Agency DDO will 
review the State's decision and issue a written decision. If the Agency 
DDO issues a decision, the applicant or recipient may request a Regional 
Administrator's review of the decision. The applicant or recipient may 
request an EPA Assistant Administrator review of a Regional 
Administrator's decision pursuant to subpart L.



Sec. 35.4105  Record retention and audits.

    (a) Records and audit-recipient. (1) Each recipient shall keep and 
preserve full written financial records accurately disclosing the amount 
and the disposition of any funds, whether in cash or in-kind, applied to 
the TAG project, and shall comply with the terms and conditions of the 
grant agreement.
    (2) Such records shall be retained for ten (10) years from the date 
of the final Financial Status Report, or until any audit, litigation, 
cost-recovery, and/or any disputes initiated before the end of the 10-
year retention period are settled, whichever is longer. A recipient must 
obtain EPA's prior written approval to destroy records after the record 
retention period.
    (3) Recipients must comply with OMB Circular A-133 ``Audits of 
Institutions of Higher Education and Other Non-profit Organizations,'' 
for all grants over $25,000.
    (b) Records and audit-contractor(s). (1) The recipient shall require 
its contractor(s) to keep and preserve detailed records in connection 
with the contract, reflecting acquisitions, work progress, reports, 
expenditures, and commitments and indicating their relationship to 
established costs and schedules.
    (2) Contractors must retain records for a period of 10 years after 
the termination or end of the contract.

(Approved by the Office of Management and Budget under control number 
2030-0020)



Sec. 35.4110  Reports.

    (a) Progress reports. Each recipient shall submit quarterly progress 
reports

[[Page 589]]

to EPA for the TAG project 45 days after the end of each calendar 
quarter. Progress reports shall fully describe in chart or narrative 
format the progress achieved in relationship to the approved schedule, 
budget, and the TAG project milestones. Special problems encountered 
must be explained.
    (b) Financial status report. Each recipient shall submit to EPA a 
financial status report annually, within 90 days after the anniversary 
date of the start of the TAG project, and within 90 days after the end 
of the grant budget period and project. A recipient shall submit to the 
EPA a financial status report on SF-269 or on the appropriate State form 
if the State is administering the TAG Program.
    (c) Final report. Each recipient shall submit to EPA a draft of the 
final report for review no later than 90 days prior to the end of the 
TAG project and a final report within 90 days of the end of the project. 
The report shall document TAG project activities over the entire period 
of grant support and shall describe the recipient's achievements with 
respect to stated TAG project purposes and objectives.

(Approved by the Office of Management and Budget under control number 
2030-0020)



Sec. 35.4115  Availability of information.

    Each recipient shall ensure that all final written products 
developed by a contractor for the recipient under its grant are 
disseminated by providing copies of such documents to EPA for the local 
Superfund information repository(ies).



Sec. 35.4120  Budget period.

    The budget period may not exceed three years. A TAG project period 
may be comprised of more than one three-year budget period.



Sec. 35.4125  Federal facilities.

    EPA will use the criteria found in Sec. 35.4025 in evaluating the 
eligibility of any group of individuals who may be affected by a release 
or a threatened release at a Federal facility for a TAG under this 
subpart.



Sec. 35.4130  Conflict of interest and disclosure requirements.

    (a) The recipient shall require each prospective contractor on any 
contract to provide, with its bid or proposal:
    (1) Information on its financial and business relationship with all 
PRPs at the site, and with their parent companies, subsidiaries, 
affiliates, subcontractors, contractors, and current clients or 
attorneys and agents. This disclosure requirement encompasses past and 
anticipated financial and business relationships, including services 
related to any proposed or pending litigation, with such parties;
    (2) Certification that, to the best of its knowledge and belief, it 
has disclosed such information or no such information exists; and
    (3) A statement that it shall disclose immediately any such 
information discovered after submission of its bid or after award. The 
recipient shall evaluate such information and shall exclude any 
prospective contractor if the recipient determines the prospective 
contractor's conflict of interest is significant and cannot be avoided 
or otherwise resolved.
    (b) Contractors and subcontractors may not be Technical Advisors to 
recipient groups at the same NPL site for which they are doing work for 
the Federal or State government or any other entity.



                          Subpart N--[Reserved]



  Subpart O--Cooperative Agreements and Superfund State Contracts for 
                       Superfund Response Actions

    Authority: 42 U.S.C. 9601 et seq.

    Source: 55 FR 23007, June 5, 1990, unless otherwise noted.

                                 General



Sec. 35.6000  Authority.

    This regulation is issued under section 104 of the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980 (42 
U.S.C. 9601 et seq., Pub. L. 96-510, December 11, 1980, otherwise 
referred to as ``CERCLA''),

[[Page 590]]

as amended by the Superfund Amendments and Reauthorization Act of 1986 
(Pub. L. 99-499, October 17, 1986; 100 Stat. 1613, otherwise referred to 
as ``SARA'').
    All references to CERCLA within this regulation are meant to 
indicate CERCLA, as amended by SARA.



Sec. 35.6005  Purpose and scope.

    (a) This regulation codifies recipient requirements for 
administering CERCLA-funded Cooperative Agreements. This regulation also 
codifies requirements for administering Superfund State Contracts (SSCs) 
for non-State-lead remedial responses undertaken pursuant to section 104 
of CERCLA.
    (b) The requirements in this regulation do not apply to Technical 
Assistance Grants (TAGs) or to CERCLA research and development grants, 
including the Superfund Innovative Technology Evaluation (SITE) 
Demonstration Program.
    (c) 40 CFR part 31, ``Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments,'' establishes 
consistency and uniformity among Federal agencies in the administration 
of grants and Cooperative Agreements to State, local, and Indian Tribal 
governments. For CERCLA-funded Cooperative Agreements, this subpart 
supplements the requirements contained in part 31 for States, political 
subdivisions thereof, and Indian Tribes. This regulation references 
those sections of part 31 that are applicable to CERCLA-funded 
Cooperative Agreements.
    (d) Superfund monies for remedial actions cannot be used by 
recipients for Federal facility cleanup activities. When a cleanup is 
undertaken by another Federal entity, the State, political subdivision 
or Indian Tribe can pursue funding for its involvement in response 
activities from the appropriate Federal entity.



Sec. 35.6010  Eligibility.

    This regulation applies to States, political subdivisions and Indian 
Tribes. Indian Tribes are only eligible to receive Superfund Cooperative 
Agreements or Superfund State Contracts when they are Federally 
recognized, and when they meet the criteria set forth in Sec. 300.515(b) 
of the NCP. Although section 126 of CERCLA provides that the governing 
body of an Indian Tribe shall be afforded substantially the same 
treatment as a State, in this subpart Indian Tribes are not included in 
the definition of State in order to clarify those requirements with 
which Indian Tribes must comply and those with which they need not 
comply.



Sec. 35.6015  Definitions.

    (a) As used in this subpart, the following words and terms shall 
have the meanings set forth below:
    (1) Activity. A set of CERCLA-funded tasks that makes up a segment 
of the sequence of events undertaken in determining, planning, and 
conducting a response to a release or potential release of a hazardous 
substance. These include Core Program, pre-remedial (i.e. preliminary 
assessments and site inspections), support agency, remedial 
investigation/feasibility studies, remedial design, remedial action, 
removal, and enforcement activities.
    (2) Allowable costs. Those project costs that are: Eligible, 
reasonable, necessary, and allocable to the project; permitted by the 
appropriate Federal cost principles; and approved by EPA in the 
Cooperative Agreement and/or Superfund State Contract.
    (3) Architectural or engineering (A/E) services. Consultation, 
investigations, reports, or services for design-type projects within the 
scope of the practice of architecture or professional engineering as 
defined by the laws of the State or territory in which the recipient is 
located.
    (4) Award official. The EPA official with the authority to execute 
Cooperative Agreements and Superfund State Contracts (SSCs) and to take 
other actions authorized by EPA Orders.
    (5) Budget period. The length of time EPA specifies in a Cooperative 
Agreement during which the recipient may expend or obligate Federal 
funds.
    (6) CERCLA. The Comprehensive Environmental Response, Compensation, 
and Liability Act of 1980 (42 U.S.C. 9601-9657, Pub. L. 96-510, Dec. 11, 
1980), as amended by the Superfund Amendments and Reauthorization Act of 
1986

[[Page 591]]

(Pub. L. 99-499, Oct. l7, 1986; 100 Stat. 1613).
    (7) Change order. A written order issued by a recipient, or its 
designated agent, to its contractor authorizing an addition to, deletion 
from, or revision of, a contract, usually initiated at the contractor's 
request.
    (8) Claim. A demand or written assertion by a contractor seeking, as 
a matter of right, changes in contract duration, costs, or other 
provisions, which originally have been rejected by the recipient.
    (9) Closeout. The final EPA or recipient actions taken to assure 
satisfactory completion of project work and to fulfill administrative 
requirements, including financial settlement, submission of acceptable 
required final reports, and resolution of any outstanding issues under 
the Cooperative Agreement and/or Superfund State Contract.
    (10) Community Relations Plan (CRP). A management and planning tool 
outlining the specific community relations activities to be undertaken 
during the course of a response. It is designed to provide for two-way 
communication between the affected community and the agencies 
responsible for conducting a response action, and to assure public input 
into the decision-making process related to the affected communities.
    (11) Construction. Erection, building, alteration, repair, 
remodeling, improvement, or extension of buildings, structures or other 
property.
    (12) Contract. A written agreement between an EPA recipient and 
another party (other than another public agency) or between the 
recipient's contractor and the contractor's first tier subcontractor.
    (13) Contractor. Any party to whom a recipient awards a contract.
    (14) Cooperative Agreement. A legal instrument EPA uses to transfer 
money, property, services, or anything of value to a recipient to 
accomplish a public purpose in which substantial EPA involvement is 
anticipated during the performance of the project.
    (15) Core Program Cooperative Agreement. A Cooperative Agreement 
that provides funds to a State or Indian Tribe to conduct CERCLA 
implementation activities that are not assignable to specific sites, but 
are intended to support a State's ability to participate in the CERCLA 
response program.
    (16) Cost analysis. The review and evaluation of each element of 
contract cost to determine reasonableness, allocability, and 
allowability.
    (17) Cost share. The portion of allowable project costs that a 
recipient contributes toward completing its project (i.e., non-Federal 
share, matching share).
    (18) Equipment. Tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit.
    (19) Excess property. Any property under the control of a Federal 
agency that is not required for immediate or foreseeable needs and thus 
is a candidate for disposal.
    (20) Fair market value. The amount at which property would change 
hands between a willing buyer and a willing seller, neither being under 
any compulsion to buy or sell and both having reasonable knowledge of 
the relevant facts. Fair market value is the price in cash, or its 
equivalent, for which the property would have been sold on the open 
market.
    (21) Health and safety plan. A plan that specifies the procedures 
that are sufficient to protect on-site personnel and surrounding 
communities from the physical, chemical, and/or biological hazards of 
the site. The health and safety plan outlines:
    (i) Site hazards;
    (ii) Work areas and site control procedures;
    (iii) Air surveillance procedures;
    (iv) Levels of protection;
    (v) Decontamination and site emergency plans;
    (vi) Arrangements for weather-related problems; and
    (vii) Responsibilities for implementing the health and safety plan.
    (22) In-kind contribution. The value of a non-cash contribution 
(generally from third parties) to meet a recipient's cost sharing 
requirements. An in-kind contribution may consist of charges for real 
property and equipment or the value of goods and services directly 
benefiting the CERCLA-funded project.

[[Page 592]]

    (23) Indian Tribe. As defined by section 101(36) of CERCLA, any 
Indian Tribe, band, nation, or other organized group or community, 
including any Alaska Native village but not including any Alaska Native 
regional or village corporation, which is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians.
    (24) Intergovernmental Agreement. Any written agreement between 
units of government under which one public agency performs duties for or 
in concert with another public agency using EPA assistance. This 
includes substate and interagency agreements.
    (25) Lead agency. The Federal agency, State agency, political 
subdivision, or Indian Tribe that has primary responsibility for 
planning and implementing a response action under CERCLA.
    (26) Minority Business Enterprise (MBE). A business which is:
    (i) Certified as socially and economically disadvantaged by the 
Small Business Administration;
    (ii) Certified as a minority business enterprise by a State or 
Federal agency; or
    (iii) An independent business concern which is at least 51 percent 
owned and controlled by minority group member(s). A minority group 
member is an individual who is a citizen of the United States and one of 
the following:
    (A) Black American;
    (B) Hispanic American (with origins from Puerto Rico, Mexico, Cuba, 
South or Central America);
    (C) Native American (American Indian, Eskimo, Aleut, native 
Hawaiian); or
    (D) Asian-Pacific American (with origins from Japan, China, the 
Philippines, Vietnam, Korea, Samoa, Guam, the U.S. Trust Territories of 
the Pacific, Northern Marianas, Laos, Cambodia, Taiwan or the Indian 
subcontinent).
    (27) National Priorities List (NPL). EPA's list of the most serious 
uncontrolled or abandoned hazardous waste sites identified for possible 
long-term remedial action under Superfund. A site must be on the NPL to 
receive money from the Trust Fund for remedial action. The list is based 
primarily on the score a site receives from the Hazard Ranking System.
    (28) Operable unit. A discrete action, as described in the 
Cooperative Agreement or SSC, that comprises an incremental step toward 
comprehensively addressing site problems. The cleanup of a site can be 
divided into a number of operable units, depending on the complexity of 
the problems associated with the site. Operable units may address 
geographical portions of a site, specific site problems, or initial 
phases of an action, or may consist of any set of actions performed over 
time or any actions that are concurrent but located in different parts 
of a site.
    (29) Operation and maintenance (O&M). Measures required to maintain 
the effectiveness of response actions.
    (30) Personal property. Property other than real property. It 
includes both supplies and equipment.
    (31) Political subdivision. The unit of government that the State 
determines to have met the State's legislative definition of a political 
subdivision.
    (32) Potentially Responsible Party (PRP). Any individual(s), or 
company(ies) identified as potentially liable under CERCLA for cleanup 
or payment for costs of cleanup of Hazardous Substance sites. PRPs may 
include individual(s), or company(ies) identified as having owned, 
operated, or in some other manner contributed wastes to Hazardous 
Substance sites.
    (33) Price analysis. The process of evaluating a prospective price 
without regard to the contractor's separate cost elements and proposed 
profit. Price analysis determines the reasonableness of the proposed 
contract price based on adequate price competition, previous experience 
with similar work, established catalog or market price, law, or 
regulation.
    (34) Profit. The net proceeds obtained by deducting all allowable 
costs (direct and indirect) from the price. (Because this definition of 
profit is based on applicable Federal cost principles, it may vary from 
many firms' definition of profit, and may correspond to those firms' 
definition of ``fee.'')
    (35) Project. The activities or tasks EPA identifies in the 
Cooperative Agreement and/or Superfund State Contract.

[[Page 593]]

    (36) Project manager. The recipient official designated in the 
Cooperative Agreement or SSC as the program contact with EPA.
    (37) Project officer. The EPA official designated in the Cooperative 
Agreement as EPA's program contact with the recipient. Project officers 
are responsible for monitoring the project.
    (38) Project period. The length of time EPA specifies in the 
Cooperative Agreement and/or Superfund State Contract for completion of 
all project work. It may be composed of more than one budget period.
    (39) Quality Assurance Project Plan. A written document, associated 
with remedial site sampling, which presents in specific terms the 
organization (where applicable), objectives, functional activities, and 
specific quality assurance and quality control activities and procedures 
designed to achieve the data quality objectives of a specific project(s) 
or continuing operation(s).
    (40) Real property. Land, including land improvements, structures, 
and appurtenances thereto, excluding movable machinery and equipment.
    (41) Recipient. Any State, political subdivision thereof, or Indian 
Tribe which has been awarded and has accepted an EPA Cooperative 
Agreement.
    (42) Services. A recipient's in-kind or a contractor's labor, time, 
or efforts which do not involve the delivery of a specific end item, 
other than documents (e.g., reports, design drawings, specifications). 
This term does not include employment agreements or collective 
bargaining agreements.
    (43) Small business. A business as defined in section 3 of the Small 
Business Act, as amended (15 U.S.C. 632).
    (44) State. The several States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the 
Virgin Islands, the Commonwealth of Northern Marianas, and any territory 
or possession over which the United States has jurisdiction.
    (45) Statement of Work (SOW). The portion of the Cooperative 
Agreement application and/or Superfund State Contract that describes the 
purpose and scope of activities and tasks to be carried out as a part of 
the proposed project.
    (46) Subcontractor. Any first tier party that has a contract with 
the recipient's prime contractor.
    (47) Superfund State Contract (SSC). A joint, legally binding 
agreement between EPA and another party(s) to obtain the necessary 
assurances before an EPA-lead remedial action or any political 
subdivision-lead activities can begin at a site, and to ensure State or 
Indian Tribe involvement as required under CERCLA section 121(f).
    (48) Supplies. All tangible personal property other than equipment 
as defined in this subpart.
    (49) Support agency. The agency that furnishes necessary data to the 
lead agency, reviews response data and documents, and provides other 
assistance to the lead agency.
    (50) Task. An element of a Superfund response activity identified in 
the Statement of Work of a Superfund Cooperative Agreement or a 
Superfund State Contract.
    (51) Title. The valid claim to property which denotes ownership and 
the rights of ownership, including the rights of possession, control, 
and disposal of property.
    (52) Unit acquisition cost. The net invoice unit price of the 
property including the cost of modifications, attachments, accessories, 
or auxiliary apparatus necessary to make the property usable for the 
purpose for which it was acquired. Other charges, such as the cost of 
installation, transportation, taxes, duty, or protective in-transit 
insurance, shall be included or excluded from the unit acquisition cost 
in accordance with the recipient's regular accounting practices.
    (53) Value engineering. A systematic and creative analysis of each 
contract term or task to ensure that its essential function is provided 
at the overall lowest cost.
    (54) Women's Business Enterprise (WBE). A business which is 
certified as a Women's Business Enterprise by a State or Federal agency, 
or which meets the following definition. A Women's Business Enterprise 
is an independent business concern which is at least 51 percent owned by 
a woman or women who also control and operate it. Determination of 
whether a business is at least 51 percent owned by a woman

[[Page 594]]

or women shall be made without regard to community property laws.
    (b) Those terms not defined in this section shall have the meanings 
set forth in section 101 of CERCLA, 40 CFR part 31 and 40 CFR part 300 
(the National Contingency Plan).



Sec. 35.6020  Other statutory provisions.

    The recipient must comply with the Federal laws described in 40 CFR 
31.13, Principal Environmental Statutory Provisions; Public Law 98-473, 
as implemented in the Department of Interior, Bureau of Indian Affairs, 
regulation at 25 CFR part 20; 25 CFR part 20 and with other applicable 
statutory provisions.



Sec. 35.6025  Deviation from this subpart.

    On a case-by-case basis, EPA will consider requests for an official 
deviation from the non-statutory provisions of this regulation. Refer to 
the requirements regarding additions and exceptions described in 40 CFR 
31.6 (b), (c), and (d).

              Pre-Remedial Response Cooperative Agreements



Sec. 35.6050  Eligibility for pre-remedial Cooperative Agreements.

    States, political subdivisions, and Indian Tribes may apply for pre-
remedial response Cooperative Agreements.



Sec. 35.6055  State-lead pre-remedial Cooperative Agreements.

    (a) To receive a State-lead pre-remedial Cooperative Agreement, the 
applicant must submit an ``Application for Federal Assistance'' (SF-424) 
for non-construction programs. Applications for additional funding need 
include only the revised pages. The application must include the 
following:
    (1) Budget sheets (SF-424A);
    (2) A Project narrative statement, including the following:
    (i) A list of sites at which the applicant proposes to undertake 
pre-remedial tasks. If the recipient proposes to revise the list, the 
recipient may not incur costs on a new site until the project officer 
has approved the site;
    (ii) A Statement of Work (SOW) which must include a detailed 
description, by task, of activities to be conducted, the projected costs 
associated with each task, the number of products to be completed, and a 
quarterly schedule indicating when these products will be submitted to 
EPA;
    (iii) A schedule of deliverables.
    (3) Drug-Free Workplace Certification. The applicant must certify 
(40 CFR part 32, subpart F) that it is in compliance with the Drug-Free 
Workplace Act of 1988 (Pub. L. 100-690, title V, subtitle D), which 
requires applicants to certify in writing that they will provide a drug-
free workplace. The applicant must follow the requirements contained in 
the OMB notice entitled ``Government-wide Implementation of the Drug-
Free Workplace Act of 1988'' published January 31, 1989.
    (4) Certification Regarding Debarment, Suspension, and Other 
Responsibility Matters (EPA Form 5700-49). The applicant must certify 
that it is in compliance with Executive Order 12549 and 40 CFR part 32.
    (5) Procurement Certification. The applicant must evaluate its own 
procurement system to determine if the system meets the intent of the 
requirements of this subpart. After evaluating its procurement system, 
the applicant or recipient must complete the ``Procurement System 
Certification'' (EPA Form 5700-48) and submit the form to EPA with its 
application.
    (6) Anti-Lobbying Certification. The applicant must certify (40 CFR 
part 34, appendix A) that no appropriated funds will be expended to pay 
any person for influencing or attempting to influence an officer or 
employee of any agency, a Member of Congress, an officer or employee of 
Congress, or an employee of a Member of Congress, in connection with any 
Federal award in excess of $100,000, in accordance with section 319 of 
Public Law 101-121. The applicant must follow the requirements in the 
Interim Final Rule entitled, ``New Restrictions on Lobbying'' published 
on February 26, 1990.
    (b) Pre-remedial Cooperative Agreement requirements. The recipient 
must comply with all terms and conditions in the Cooperative Agreement, 
and with the following requirements:
    (1) Health and safety plan. (i) Before beginning field work, the 
recipient must have a health and safety plan in

[[Page 595]]

place providing for the protection of on-site personnel and area 
residents. This plan need not be submitted to EPA, but must be made 
available to EPA upon request.
    (ii) The recipient's health and safety plan must comply with 
Occupational Safety and Health Administration (OSHA) 29 CFR 1910.120, 
entitled ``Hazardous Waste Operations and Emergency Response,'' unless 
the recipient is an Indian Tribe which is exempt from OSHA requirements.
    (2) Quality assurance. (i) The recipient must comply with the 
quality assurance requirements described in 40 CFR 31.45.
    (ii) The recipient must have an EPA-approved non-site-specific 
quality assurance plan in place before beginning field work. The 
recipient must submit the plan to EPA in adequate time (generally 45 
days) for approval to be granted before beginning field work.
    (iii) The quality assurance plan must comply with the requirements 
regarding split sampling described in section 104(e)(4)(B) of CERCLA, as 
amended.



Sec. 35.6060  Political subdivision-lead pre-remedial Cooperative Agreements.

    (a) If the Award Official determines that a political subdivision's 
lead involvement in pre-remedial activities would be more efficient, 
economical and appropriate than that of a State, based on the number of 
sites to be addressed and the political subdivision's history of program 
involvement, a pre-remedial Cooperative Agreement may be awarded under 
this section.
    (b) The political subdivision must comply with all of the 
requirements described in Sec. 35.6055 of this subpart.
    (c) The Award Official may require a three-party Superfund State 
Contract for pre-remedial activities.
    (d) If the preliminary assessment/site investigation (PA/SI) shows 
that listing the site on the NPL is necessary, the political subdivision 
must enter into a three-party Superfund State Contract before any 
remedial activities begin.



Sec. 35.6070  Indian Tribe-lead pre-remedial Cooperative Agreements.

    The Indian Tribe must comply with all of the requirements described 
in Sec. 35.6055 of this subpart, except for the intergovernmental review 
requirements included in the ``Application for Federal Assistance'' (SF-
424).

                Remedial Response Cooperative Agreements



Sec. 35.6100  Eligibility for remedial Cooperative Agreements.

    States, Indian Tribes, and political subdivisions may apply for 
remedial response Cooperative Agreements.



Sec. 35.6105  State-lead remedial Cooperative Agreements.

    To receive a State-lead remedial Cooperative Agreement, the 
applicant must submit the following items to EPA:
    (a) Application form, as described in Sec. 35.6055(a) of this 
subpart, accompanied by the following:
    (1) Budget sheets (SF-424A) displaying costs by site, activity and 
operable unit, as applicable;
    (2) A Project narrative statement, including the following:
    (i) A site description, including a discussion of the location of 
each site, the physical characteristics of each site (site geology and 
proximity to drinking water supplies), the nature of the release 
(contaminant type and affected media), past response actions at each 
site, and response actions still required at each site;
    (ii) A site-specific Statement of Work (SOW), including estimated 
costs per task, and a standard task to ensure that a sign is posted at 
the site providing the appropriate contacts for obtaining information on 
activities being conducted at the site, and for reporting suspected 
criminal activities;
    (iii) A statement designating a lead site project manager among 
appropriate State offices. This statement must demonstrate that the lead 
State agency has conducted coordinated planning of response activities 
with other State agencies. The statement must identify

[[Page 596]]

the name and position of those individuals who will be responsible for 
coordinating the State offices;
    (iv) A site-specific Community Relations Plan or an assurance that 
field work will not begin until one is in place. The Regional community 
relations coordinator must approve the Community Relations Plan before 
the recipient begins field work. The recipient must comply with the 
community relations requirements described in EPA policy and guidance, 
and in the National Contingency Plan (NCP);
    (v) A site-specific health and safety plan, or an assurance that the 
applicant will have a final plan before starting field work. Unless 
specifically waived by the award official, the applicant must have a 
site-specific health and safety plan in place providing for the 
protection of on-site personnel and area residents. The site-specific 
health and safety plan must comply with Occupational Safety and Health 
Administration (OSHA) 29 CFR 1910.120, entitled ``Hazardous Waste 
Operations and Emergency Response,'' unless the recipient is an Indian 
Tribe exempt from OSHA requirements;
    (vi) Quality assurance--(A) General. If the project involves 
environmentally related measurements or data generation, the recipient 
must comply with the requirements regarding quality assurance described 
in 40 CFR 31.45.
    (B) Quality assurance plan. The applicant must have a separate 
quality assurance project plan and/or sampling plan for each site to be 
covered by the Cooperative Agreement. The applicant must submit the 
quality assurance project plan and sampling plan, which incorporates 
results of any site investigation performed at that site, to EPA with 
its Cooperative Agreement application. However, at the option of the EPA 
award official with program concurrence, the applicant may submit with 
its application a schedule for developing the detailed site-specific 
quality assurance plan (generally 45 days before beginning field work). 
Field work may not begin until EPA approves the site-specific quality 
assurance plan.
    (C) Split sampling. The quality assurance plan must comply with the 
requirements regarding split sampling described in section 104(e)(4)(B) 
of CERCLA, as amended.
    (vii) A schedule of deliverables to be prepared during response 
activities.
    (3) Drug-Free Workplace Certification. The applicant must certify 
(40 CFR part 32, subpart F) that it is in compliance with the Drug-Free 
Workplace Act of 1988 (Pub. L. 100-690, title V, subtitle D), which 
requires applicants to certify in writing that they will provide a drug-
free workplace.
    (4) Certification Regarding Debarment, Suspension, and Other 
Responsibility Matters (EPA Form 5700-49). The applicant must certify 
that it is in compliance with Executive Order 12549 and 40 CFR part 32.
    (5) Procurement Certification. The applicant must evaluate its own 
procurement system to determine if the system meets the intent of the 
requirements of this subpart. After evaluating its procurement system, 
the applicant or recipient must complete the ``Procurement System 
Certification'' (EPA Form 5700-48) and submit the form to EPA with its 
application.
    (6) Anti-Lobbying Certification. The applicant must certify (40 CFR 
part 34, appendix A) that no appropriated funds will be expended to pay 
any person for influencing or attempting to influence an officer or 
employee of any agency, a Member of Congress, an officer or employee of 
Congress, or an employee of a Member of Congress, in connection with any 
Federal award in excess of $100,000, in accordance with section 319 of 
Public Law 101-121. The applicant must follow the requirements in the 
Interim Final Rule entitled, ``New Restrictions on Lobbying'' published 
on February 26, 1990.
    (b) CERCLA Assurances. Before a Cooperative Agreement for remedial 
action can be awarded, the State must provide EPA with written 
assurances as specified below.
    (1) Operation and maintenance. The State must provide an assurance 
that it will assume responsibility for the operation and maintenance 
(O&M) of implemented CERCLA-funded remedial actions for the expected 
life of each such action. In addition, even if a political subdivision 
is designated as being responsible for O&M, the State must guarantee 
that it will assume any or

[[Page 597]]

all O&M activities in the event of default by the political subdivision.
    (2) Cost sharing. The State must provide assurances for cost sharing 
as follows:
    (i) Ten percent. Where a facility was privately operated, whether 
privately or publicly owned, at the time of disposal, the State must 
provide 10 percent of the cost of the remedial action, if CERCLA-funded.
    (ii) Fifty percent. Where a facility was publicly operated by a 
State or political subdivision at the time of disposal of hazardous 
substances at the facility, the State must provide at least 50 percent 
of the cost of removal, remedial planning, and remedial action if the 
remedial action is CERCLA-funded.
    (3) Twenty-year waste capacity. The State must assure EPA of the 
availability of hazardous waste treatment or disposal facilities within 
and/or outside the State that comply with subtitle C of the Solid Waste 
Disposal Act and that have adequate capacity for the destruction, 
treatment, or secure disposition of all hazardous wastes that are 
reasonably expected to be generated within the State during the 20-year 
period following the date of the response agreement. A remedial response 
action cannot be funded unless this assurance is provided consistent 
with Sec. 300.510 of the NCP. EPA will determine whether the State's 
assurance is adequate.
    (4) Off-site storage, treatment, or disposal. If off-site storage, 
destruction, treatment, or disposal is required, the State must assure 
the availability of a hazardous waste disposal facility that is in 
compliance with subtitle C of the Solid Waste Disposal Act and is 
acceptable to EPA. The lead agency of the State must provide the 
notification required at Sec. 35.6120, if applicable.
    (5) Real property acquisition. If EPA determines in the remedy 
selection process that an interest in real property must be acquired in 
order to conduct a response action, such acquisition may be funded under 
a Cooperative Agreement. EPA may acquire an interest in real estate for 
the purpose of conducting a remedial action only if the State provides 
assurance that it will accept transfer of such interest in accordance 
with 40 CFR 300.510(f). The State must provide this assurance even if it 
intends to transfer this interest to a third party. (See Sec. 35.6400 of 
this subpart for additional information on real property acquisition 
requirements.)

[55 FR 23007, June 5, 1990, as amended at 59 FR 35853, July 14, 1994]



Sec. 35.6110  Indian Tribe-lead remedial Cooperative Agreements.

    (a) Application requirements. The Indian Tribe must comply with all 
of the requirements described in Sec. 35.6105(a) and, if appropriate, 
Sec. 35.6105(b)(5) of this subpart. Indian tribes are not required to 
comply with the intergovernmental review requirements included in the 
``Application for Federal Assistance'' (SF-424). Consistent with the NCP 
(Sec. 300.510(e)(2)), this rule does not address whether Indian tribes 
are States for the purpose of CERCLA section 104(c)(9).
    (b) Cooperative Agreement requirements. (1) The Indian tribe must 
comply with all terms and conditions in the Cooperative Agreement.
    (2) If EPA determines as part of the remedy selection process that 
an interest in real property must be acquired in order to conduct the 
site-specific response action, the Indian tribe will be required, to the 
extent of its legal authority, to assure EPA that it will take title to, 
acquire interest in, or accept transfer of such interest in real 
property acquired with CERCLA funds, including any interest in property 
that is acquired to ensure the reliability of institutional controls 
restricting the use of that property. (See Sec. 35.6400 of this subpart 
regarding information on property title and interest requirements.)
    (3) If it is designated the lead for remedial action, the Indian 
Tribe must provide the notification required at Sec. 35.6120, 
substituting the term ``Indian Tribe'' for the term ``State'' in that 
section, and ``out-of-jurisdiction'' for ``out-of-State.''



Sec. 35.6115  Political subdivision-lead remedial Cooperative Agreements.

    (a) General. If both the State and EPA agree, a political 
subdivision with the necessary capabilities and jurisdictional authority 
may assume the lead responsibility for the remedial activity, or a 
portion thereof, at a site. The

[[Page 598]]

State and political subdivision must enter into a three-party Superfund 
State Contract (SSC) with EPA before a political subdivision can enter 
into a Cooperative Agreement.
    (b) Three-party Superfund State Contract requirements. The three-
party SSC must specify the responsibilities of the signatories. By 
signing the SSC, the State and the political subdivision agree to follow 
the appropriate administrative requirements regarding SSCs described in 
Sec. Sec. 35.6805, 35.6815, and 35.6820 of this subpart. Furthermore, 
EPA, the State, and the political subdivision agree that the SSC:
    (1) Specifies the substantial and meaningful involvement of the 
State as required by section 121(f)(1) of CERCLA, as amended; and
    (2) Includes the State's CERCLA section 104 assurances, if the 
political subdivision is designated the lead for remedial action.
    (c) Political subdivision Cooperative Agreement requirements.--(1) 
Application requirements. To receive a remedial Cooperative Agreement, 
the political subdivision must prepare an application which includes the 
documentation described in Sec. 35.6105 (a)(1) through (a)(6).
    (2) Cooperative Agreement requirements. The political subdivision 
must comply with all terms and conditions in the Cooperative Agreement. 
If it is designated the lead for remedial action, the political 
subdivision must provide the notification required at Sec. 35.6120, 
substituting the term ``political subdivision'' for the term ``State'' 
in that section.



Sec. 35.6120  Notification of the out-of-State or out-of-Indian Tribal jurisdiction transfer of CERCLA wastes.

    (a) The recipient must provide written notification of off-site 
shipments of CERCLA waste from a site to an out-of-State or out-of-
Indian Tribal jurisdiction waste management facility to:
    (1) The appropriate State environmental official for the State in 
which the waste management facility is located; and/or
    (2) The appropriate Indian Tribal official who has jurisdictional 
authority in the area where the waste management facility is located; 
and
    (3) The EPA Award Official.
    (b) The notification of off-site shipments does not apply when the 
total volume of all such shipments from the site does not exceed 10 
cubic yards.
    (c) The notification must be in writing and must provide the 
following information, where available:
    (1) The name and location of the facility to which the CERCLA waste 
is to be shipped;
    (2) The type and quantity of CERCLA waste to be shipped;
    (3) The expected schedule for the shipments of the CERCLA waste; and
    (4) The method of transportation of the CERCLA waste.
    (d) The recipient must notify the State or Indian Tribal government 
in which the planned receiving facility is located of major changes in 
the shipment plan, such as a decision to ship the CERCLA waste to 
another facility within the same receiving State, or to a facility in 
another State.
    (e) The recipient must provide relevant information on the off-site 
shipments, including the information in paragraph (c) above, as soon as 
possible after the award of the contract and, where practicable, before 
the CERCLA waste is actually shipped.

                   Enforcement Cooperative Agreements



Sec. 35.6145  Eligibility for enforcement Cooperative Agreements.

    Pursuant to CERCLA section 104(d), States, political subdivisions 
thereof, and Indian Tribes may apply for enforcement Cooperative 
Agreements. To be eligible for an enforcement Cooperative Agreement, the 
State, political subdivision or Indian Tribe must demonstrate that it 
has the authority, jurisdiction, and the necessary administrative 
capabilities to take an enforcement action(s) to compel PRP cleanup of 
the site, or recovery of the cleanup costs. To accomplish this, the 
State, political subdivision or Indian Tribe, respectively, must submit 
the following for EPA approval:
    (a) A letter from the State Attorney General, or comparable local 
official (of a political subdivision) or comparable Indian Tribal 
official, certifying that it has the authority, jurisdiction, and 
administrative capabilities

[[Page 599]]

that provide a basis for pursuing enforcement actions against a PRP to 
secure the necessary response;
    (b) A copy of the applicable State, local (political subdivision) or 
Indian Tribal statute(s) and a description of how it is implemented;
    (c) Any other documentation required by EPA to demonstrate that the 
State, local (political subdivision) or Indian Tribal government has the 
statutory authority, jurisdiction, and administrative capabilities to 
perform the enforcement activity(ies) to be funded under the Cooperative 
Agreement.



Sec. 35.6150  Activities eligible for funding under enforcement Cooperative Agreements.

    An enforcement Cooperative Agreement application from a State, 
political subdivision or Indian Tribe may request funding for the 
following enforcement activities:
    (a) PRP searches;
    (b) Issuance of notice letters and negotiation activities;
    (c) Administrative and judicial enforcement actions taken under 
State or Indian Tribal law;
    (d) Management assistance and oversight of PRPs during Federal 
enforcement response;
    (e) Oversight of PRPs during a State, political subdivision or 
Indian Tribe enforcement response contingent on the applicant having 
taken all necessary action to compel PRPs to fund the oversight of 
cleanup activities negotiated under the recipient's enforcement 
authorities. If the State, political subdivision, Indian Tribe or EPA 
cannot obtain PRP commitment to fund such oversight activities, then 
these activities will be considered eligible for CERCLA funding under an 
enforcement Cooperative Agreement.



Sec. 35.6155  State, political subdivision or Indian Tribe-lead enforcement Cooperative Agreements.

    (a) The State, political subdivision or Indian Tribe must comply 
with the requirements described in Sec. 35.6105 (a)(1) through (a)(6) of 
this subpart, as appropriate.
    (b) The CERCLA section 104 assurances described in Sec. 35.6105(b) 
are not applicable for enforcement Cooperative Agreements.
    (c) Before an enforcement Cooperative Agreement is awarded, the 
State, political subdivision or Indian Tribe must:
    (1) Assure EPA that it will notify and consult with EPA promptly if 
the recipient determines that its laws or other restrictions prevent the 
recipient from acting consistently with CERCLA; and
    (2) If the applicant is seeking funds for oversight of PRP cleanup, 
the applicant must:
    (i) Demonstrate that the proposed Statement of Work or cleanup plan 
prepared by the PRP satisfies the recipient's enforcement goals for 
those instances in which the recipient is seeking funding for oversight 
of PRP cleanup activities negotiated under the recipient's own 
enforcement authorities; and
    (ii) Demonstrate that the PRP has the capability to attain the goals 
set forth in the plan;
    (iii) Demonstrate that it has taken all necessary action to compel 
PRPs to fund the oversight of cleanup activities negotiated under the 
recipient's enforcement authorities.

                 Removal Response Cooperative Agreements



Sec. 35.6200  Eligibility for removal Cooperative Agreements.

    When a planning period of more than six months is available, States, 
political subdivisions and Indian Tribes may apply for removal 
Cooperative Agreements.



Sec. 35.6205  Removal Cooperative Agreements.

    (a) The State must comply with the requirements described in 
Sec. 35.6105(a) of this subpart. To the extent practicable, the State 
must comply with the notification requirement at Sec. 35.6120 when a 
removal action is necessary and involves out-of-State shipment of CERCLA 
wastes, and when, based on the site evaluation, EPA determines that a 
planning period of more than six months is available before the removal 
activities must begin.

[[Page 600]]

    (b) Pursuant to CERCLA section 104(c)(3), the State is not required 
to share in the cost of a CERCLA-funded removal action, unless the 
removal is conducted at a site that was publicly operated by a State or 
political subdivision at the time of disposal of hazardous substances 
and a CERCLA-funded remedial action is ultimately undertaken at the 
site. In this situation, the State must share at least 50 percent in the 
cost of all removal, remedial planning, and remedial action costs at the 
time of the remedial action as stated in Sec. 35.6105(b)(2)(ii) of this 
subpart.
    (c) If both the State and EPA agree, a political subdivision with 
the necessary capabilities and jurisdictional authority may assume the 
lead responsibility for all, or a portion, of the removal activity at a 
site. Political subdivisions must comply with the requirements described 
in Sec. 35.6105(a) of this subpart. To the extent practicable, political 
subdivisions also must comply with the notification requirement at 
Sec. 35.6120 when a removal action is necessary and involves the 
shipment of CERCLA wastes out of the State's jurisdiction, and when, 
based on the site evaluation, EPA determines that a planning period of 
more than six months is available before the removal activities must 
begin.
    (d) The State must provide the cost share assurance discussed in 
Sec. 35.6205(b) above on behalf of a political subdivision that is given 
the lead for a removal action.
    (e) Indian Tribes must comply with the requirements described in 
Sec. 35.6105(a) of this subpart. To the extent practicable, Indian 
Tribes also must comply with the notification requirement at 
Sec. 35.6120 when a removal action is necessary and involves the 
shipment of CERCLA wastes out of the Indian Tribe's jurisdiction, and 
when, based on the site evaluation, EPA determines that a planning 
period of more than six months is available before the removal 
activities must begin.
    (f) Indian Tribes are not required to share in the cost of a CERCLA-
funded removal action.

                   Core Program Cooperative Agreements



Sec. 35.6215  Eligibility for Core Program Cooperative Agreements.

    (a) States and Indian Tribes may apply for Core Program Cooperative 
Agreements in order to conduct CERCLA implementation activities that are 
not directly assignable to specific sites, but are intended to support a 
State's or Indian Tribe's ability to participate in the CERCLA; response 
program.
    (b) Only the State or Indian Tribal government agency designated as 
the single point of contact with EPA for CERCLA implementation is 
eligible to receive a Core Program Cooperative Agreement.
    (c) When it is more economical for a government entity other than 
the recipient (such as a political subdivision or State Attorney 
General) to implement tasks funded through a Core Program Cooperative 
Agreement, benefits to such entities must be provided for in an 
intergovernmental agreement.



Sec. 35.6220  General.

    The recipient of a Core Program Cooperative Agreement must comply 
with the requirements regarding financial administration 
(Sec. Sec. 35.6270 through 35.6290 of this subpart), property 
(Sec. Sec. 35.6300 through 35.6450), procurement (Sec. Sec. 35.6550 
through 35.6610), reporting (Sec. Sec. 35.6650 through 35.6670), records 
(Sec. Sec. 35.6700 through 35.6710), and other administrative 
requirements under a Cooperative Agreement (Sec. Sec. 35.6750 through 
35.6790) described in this subpart. Recipients may not incur site-
specific costs. Where these sections entail site-specific requirements, 
the recipient is not required to comply on a site-specific basis.



Sec. 35.6225  Activities eligible for funding under Core Program Cooperative Agreements.

    To be eligible for funding under a Core Program Cooperative 
Agreement, activities must support a recipient's abilities to implement 
CERCLA. Once the recipient has in place program functions described in 
Sec. 35.6225 (a) through (d) below, EPA will evaluate

[[Page 601]]

the recipient's program needs to sustain interaction with EPA in CERCLA 
implementation as described in Sec. 35.6225(e). The amount of funding 
provided under the Core Program will be determined by EPA based on the 
availability of funds and the recipient's program needs in the areas 
described in (a) through (d) below:
    (a) Procedures for emergency response actions and longer-term 
remediation of environmental and health risks at hazardous waste sites 
(including but not limited to the development of generic health and 
safety plans, quality assurance project plans, and community relation 
plans);
    (b) Provisions for satisfying all requirements and assurances 
(including the development of a fund or other financing mechanism(s) to 
pay for studies and remediation activities);
    (c) Legal authorities and enforcement support associated with proper 
administration of the recipient's program and with efforts to compel 
potentially responsible parties to conduct or pay for studies and/or 
remediation (including but not limited to the development of statutory 
authorities; access to legal assistance in identifying applicable or 
relevant and appropriate requirements of other laws; and development and 
maintenance of the administrative, financial and recordkeeping systems 
necessary for cost recovery actions under CERCLA);
    (d) Efforts necessary to hire and train staff to manage publicly-
funded cleanups, oversee responsible party-lead cleanups, and provide 
clerical support; and
    (e) Other activities deemed necessary by EPA to support sustained 
EPA/recipient interaction in CERCLA implementation (including but not 
limited to general program management and supervision necessary for a 
recipient to implement CERCLA activities, and interagency coordination 
on all phases of CERCLA response).
Continued funding of tasks in subsequent years will be based on an 
evaluation of demonstrated progress towards the goals in the existing 
Core Program Cooperative Agreement Statement of Work.



Sec. 35.6230  Application requirements.

    To receive a Core Program Cooperative Agreement, the applicant must 
submit an application form (``Application for Federal Assistance,'' SF-
424, for non-construction programs) to EPA. Applications for additional 
funding need include only the revised pages. The application must 
include the following:
    (a) A project narrative statement, including the following:
    (1) A Statement of Work (SOW) which must include a detailed 
description of the CERCLA-funded activities and tasks to be conducted, 
the projected costs associated with each task, the number of products to 
be completed, and a schedule for implementation. Eligible activities 
under Core Program Cooperative Agreements are discussed in Sec. 35.6225 
of this subpart;
    (2) A background statement, describing the current abilities and 
authorities of the recipient's program for implementing CERCLA, the 
program's needs to sustain and increase recipient involvement in CERCLA 
implementation, and the impact of Core Program Cooperative Agreement 
funds on the recipient's involvement in site-specific CERCLA response.
    (b) Budget sheets (SF-424A);
    (c) Proposed project and budget periods for CERCLA-funded 
activities. The project and budget periods may be one or more years and 
may be extended incrementally, up to 12 months at a time, with EPA 
approval;
    (d) Certifications for a drug-free workplace; debarment, 
suspensions, and other responsibility matters; procurement; and 
lobbying, pursuant to Sec. 35.6105(a) (3) through (6) of this subpart.



Sec. 35.6235  Cost sharing.

    The recipient of a Core Program Cooperative Agreement must provide 
at least ten percent of the direct and indirect costs of all activities 
covered by the Core Program Cooperative Agreement. The recipient must 
provide its cost share with non-Federal funds or with Federal funds 
authorized by statute to be used for matching purposes. Funds used for 
matching purposes under any other Federal grant or Cooperative Agreement 
cannot be used for

[[Page 602]]

matching purposes under a Core Program Cooperative Agreement. The 
recipient may provide its share using in-kind contributions if such 
contributions are provided for in the Cooperative Agreement. The 
recipient may not use CERCLA State credits to offset any part of the 
recipient's required match for Core Program Cooperative Agreements. See 
Sec. 35.6285 (c), (d), and (f) regarding credit, over match, and advance 
match, respectively.

                  Support Agency Cooperative Agreements



Sec. 35.6240  Eligibility for support agency Cooperative Agreements.

    States, political subdivisions, and Indian Tribes may apply for 
support agency Cooperative Agreements to ensure their meaningful and 
substantial involvement in response activities, as specified in sections 
104 and 121(f)(1) of CERCLA and the NCP. (See Sec. 35.6800 (a) and (b).)



Sec. 35.6245  Allowable activities.

    Support agency activities are those activities conducted by the 
recipient to ensure its meaningful and substantial involvement. The 
activities described in section 121(f)(1) of CERCLA, as amended, and in 
subpart F of the NCP, are eligible for funding under a support agency 
Cooperative Agreement.



Sec. 35.6250  Support agency Cooperative Agreement requirements.

    (a) Application requirements. The applicant must comply with the 
requirements described in Sec. 35.6105(a) (1), (4), (5) and (6), and 
other requirements as negotiated with EPA. (Indian Tribes are exempt 
from the requirement of Intergovernmental Review in part 29 of this 
chapter.) An applicant may submit a non-site-specific budget for support 
agency activities, with the exception of remedial action support agency 
activities, which require cost share and must be applied for within a 
site-specific budget. All support agency activities are subject to the 
applicable sections of this subpart.
    (b) Cooperative Agreement requirements. The recipient must comply 
with the requirements regarding financial administration (Sec. Sec.  
35.6270 through 35.6290 of this subpart), property (Sec. Sec. 35.6300 
through 35.6450), procurement (Sec. Sec. 35.6550 through 35.6610), 
reporting (Sec. Sec. 35.6650 through 35.6670), records 
(Sec. Sec. 35.6700 through 35.6710), and other administrative 
requirements under a Cooperative Agreement (Sec. Sec. 35.6750 through 
35.6790) described in this subpart.



Sec. 35.6255  Cost sharing.

    The requirements for cost sharing under a support agency Cooperative 
Agreement are the same as the cost sharing requirements of 
Sec. 35.6105(b)(2) of this subpart. The State may use in-kind services 
as part of its cost share. (See Sec. 35.6815(b) for SSC payment 
requirements.)

   Financial Administration Requirements Under a Cooperative Agreement



Sec. 35.6270  Standards for financial management systems.

    (a) Accounting system standards. (1) General. The recipient's system 
must track expenses by site, activity, and, operable unit, as 
applicable, according to object class. The system must also provide 
control, accountability, and an assurance that funds, property, and 
other assets are used only for their authorized purposes. The recipient 
must allow an EPA review of the adequacy of the financial management 
system as described in 40 CFR 31.20(c).
    (2) Allowable costs. The recipient's systems must comply with the 
appropriate allowable cost principles described in 40 CFR 31.22.
    (3) Pre-remedial. The system need not track expenses by site. 
However, all pre-remedial costs must be documented under a single 
Superfund account number designated specifically for the preremedial 
activity.
    (4) Core Program. Since all costs associated with Core Program 
Cooperative Agreements are non-site-specific, the systems need not track 
expenses by site. However, all Core Program costs must be documented 
under the Superfund account number(s) designated specifically for Core 
Program activity.

[[Page 603]]

    (5) Support Agency. Unless otherwise specified in the Cooperative 
Agreement, all support agency costs, with the exception of remedial 
action support agency costs, may be documented under a single Superfund 
account number designated specifically for support agency activities. 
Remedial action support agency activities must be documented site-
specifically.
    (6) Accounting system control procedures. Except as provided for in 
paragraph (a)(3) of this section, accounting system control procedures 
must ensure that accounting information is:
    (i) Accurate, charging only costs attributable to the site, 
activity, and operable unit, as applicable; and
    (ii) Complete, recording and charging to individual sites, 
activities, and operable units, as applicable, all costs attributable to 
the recipient's CERCLA effort.
    (7) Financial reporting. The recipient's accounting system must use 
actual costs as the basis for all reports of direct site charges. The 
recipient must comply with the requirements for financial reporting 
contained in Sec. 35.6670 of this subpart.
    (b) Recordkeeping system standards. (1) The recipient must maintain 
a recordkeeping system that enables site-specific costs to be tracked by 
site, activity, and operable unit, as applicable, and provides 
sufficient documentation for cost recovery purposes.
    (2) The recipient must provide this site-specific documentation to 
the EPA Regional Office within 30 working days of a request, unless 
another time frame is specified in the Cooperative Agreement.
    (3) In addition, the recipient must comply with the requirements 
regarding records described in Sec. Sec. 35.6700, 35.6705, and 35.6710 
of this subpart. The recipient must comply with the requirements 
regarding source documentation described in 40 CFR 31.20(b)(6).
    (4) For pre-remedial and Core Program activities, the recordkeeping 
system must comply with the requirements described in paragraphs (a)(3) 
and (a)(4), respectively, of this section.



Sec. 35.6275  Period of availability of funds.

    (a) The recipient must comply with the requirements regarding the 
availability of funds described in 40 CFR 31.23.
    (b) Except as permitted in Sec. 35.6285, the Award Official must 
sign the assistance agreement before costs are incurred. The recipient 
may incur costs between the date the Award Official signs the assistance 
agreement and the date the recipient signs the agreement, if the costs 
are identified in the agreement and the recipient does not change the 
agreement.



Sec. 35.6280  Payments.

    (a) General. In addition to the following requirements, the 
recipient must comply with the requirements regarding payment described 
in 40 CFR 31.21(f) through (h).
    (1) Assignment of payment. The recipient cannot assign the right to 
receive payments under the recipient's Cooperative Agreement. EPA will 
make payments only to the payee identified in the Cooperative Agreement.
    (2) Interest. If the recipient earns interest on an advance of EPA 
funds, the recipient must return the interest unless the recipient is a 
State or State agency as defined under section 203 of the 
Intergovernmental Cooperation Act of 1968, or a Tribal organization as 
defined under section 102, 103, or 104 of the Indian Self-Determination 
and Education Assistance Act of 1975 (Pub. L. 93-638).
    (b) Payment method--(1) Letter of credit. In order to receive 
payment by the letter of credit method, the recipient must comply with 
the requirements regarding letter of credit described in 40 CFR 31.20 
(b)(7) and 31.21(b). The recipient must identify and charge costs to 
specific sites, activities, and operable units, as applicable, for 
drawdown purposes as specified in the Cooperative Agreement.
    (2) Reimbursement. If the recipient is unable to meet letter of 
credit requirements, EPA will pay the recipient by reimbursement. The 
recipient must comply with the requirements regarding reimbursement 
described in 40 CFR 31.21(d).

[[Page 604]]

    (3) Working capital advances. If the recipient is unable to meet the 
criteria for payment by either letter of credit or reimbursement, EPA 
may provide cash on a working capital advance basis. Under this 
procedure EPA shall advance cash to the recipient to cover its estimated 
disbursement needs for an initial period generally geared to the 
recipient's disbursing cycle. Thereafter, EPA shall reimburse the 
recipient for its actual cash disbursements. In such cases, the 
recipient must comply with the requirements regarding working capital 
advances described in 40 CFR 31.21(e).



Sec. 35.6285  Recipient payment of response costs.

    The recipient may pay for its share of response costs using cash, 
services, credits or any combination of these, as follows:
    (a) Cash. The recipient may pay for its share of response costs in 
the form of cash.
    (b) Services. The recipient may provide equipment and services to 
satisfy its cost share requirements under Cooperative Agreements. The 
recipient must comply with the requirements regarding in-kind and 
donated services described in 40 CFR 31.24.
    (c) Credit-- (1) General credit requirements. Credits are limited to 
State site-specific expenses that EPA determines to be reasonable, 
documented, direct, out-of-pocket expenditures of non-Federal funds for 
remedial action. Credits are established on a site-specific basis. Only 
a State may claim credit.
    (i) The State may claim credit for response activity obligations or 
expenditures incurred by the State or political subdivision between 
January 1, 1978 and December 11, 1980.
    (ii) The State may claim credit for remedial action expenditures 
incurred by the State after October 17, 1986.
    (iii) The State may not claim credit for removal actions taken after 
December 11, 1980.
    (2) Credit submission requirements. (i) Expenditures incurred before 
a site is listed on the NPL. Although EPA may require additional 
documentation, the State must submit the following before EPA will 
approve the use of the credit:
    (A) Specific amounts claimed for credit, by site (estimated amounts 
are unacceptable), based on supporting cost documentation;
    (B) Units of government (State agency, county, local) that incurred 
the costs, by site;
    (C) Description of the specific function performed by each unit of 
government at each site;
    (D) Certification (signed by the State's fiscal manager or the 
financial director for each unit of government) that credit costs have 
not been previously reimbursed by the Federal government or any other 
party, and have not been used for matching purposes under any other 
Federal program or grant; and
    (E) Documentation, if requested by EPA, to ensure the actions 
undertaken at the site are cost eligible and consistent with CERCLA, as 
amended, and the NCP requirements. This requirement does not apply for 
costs incurred before December 11, 1980.
    (ii) Expenditures incurred after a site is listed on the NPL. A 
State may receive credit for remedial action expenditures after October 
17, 1986, only if the State entered into a Cooperative Agreement before 
incurring costs at the site.
    (3) Use of credit. The State must first apply credit at the site at 
which it was earned. With the approval of EPA, the State may use excess 
credit earned at one site for its cost share at another site (See CERCLA 
section 104(c)(5)). Credits must be applied on a site-specific basis, 
and, therefore, may not be used to meet State cost-share requirements 
for Core Program Cooperative Agreements. EPA will not reimburse excess 
credit.
    (4) Credit verification. Credits are subject to verification by 
audit and technical review of actions performed at sites.
    (d) Over match. The recipient may not use contributions in excess of 
the required cost-share at one site to meet the cost-share obligation at 
another site or the Core Program cost-share obligation. Overmatch is not 
``credit'' pursuant to Sec. 35.6285(c)(3).
    (e) Cost sharing. The recipient must comply with the requirements 
regarding cost sharing described in 40 CFR 31.24. Finally, the recipient 
cannot use

[[Page 605]]

costs incurred under the Core Program to offset cost-share requirements 
at a site.
    (f) Advance match. (1) A Cooperative Agreement for a site-specific 
response entered into after October 17, 1986 cannot authorize a State to 
contribute funds during remedial planning and then apply those 
contributions to the remedial action cost share (advance match).
    (2) A State may seek reimbursement for costs incurred under 
Cooperative Agreements which authorize advance match.
    (3) Reimbursements are subject to the availability of appropriated 
funds.
    (4) If the State does not seek reimbursement, EPA will apply the 
advance match to off-set the State's required cost share for remedial 
action at the site. The State may not use advance match for credit at 
any other site, nor may the State receive reimbursement until the 
conclusion of CERCLA-funded remedial response activities. Also, the 
State may not use advance match for credit against cost-share 
obligations for Core Program Cooperative Agreements.
    (5) Claims for advance match are subject to verification by audit.

[55 FR 23007, June 5, 1990, as amended at 55 FR 24343, June 15, 1990]



Sec. 35.6290  Program income.

    The recipient must comply with the requirements regarding program 
income described in 40 CFR part 31.25.

      Personal Property Requirements under a Cooperative Agreement



Sec. 35.6300  General personal property acquisition and use requirements.

    (a) General. (1) Property may be acquired only when authorized in 
the Cooperative Agreement.
    (2) The recipient must acquire the property during the approved 
project period.
    (3) The recipient must:
    (i) Charge property costs by site, activity, and operable unit, as 
applicable;
    (ii) Document the use of the property by site, activity, and. 
operable unit, as applicable; and
    (iii) Solicit and follow EPA's instructions on the disposal of any 
property purchased with CERCLA funds as specified in Sec. 35.6340 and 
Sec. 35.6345 of this subpart.
    (b) Exception. The recipient is not required to charge property 
costs by site under a pre-remedial or Core Program Cooperative 
Agreement.



Sec. 35.6305  Obtaining supplies.

    To obtain supplies, the recipient must agree to comply with the 
requirements in Sec. Sec. 35.6300, 35.6315(b), 35.6325 through 35.6340, 
and 35.6350 of this subpart. Supplies obtained with Core Program funds 
must be for non-site-specific purposes. All purchases of supplies under 
the Core Program must comply with the requirements in the above listed 
sections, except where these requirements are site-specific.



Sec. 35.6310  Obtaining equipment.

    To obtain equipment, the recipient must agree to comply with the 
requirements in Sec. 35.6300 and Sec. Sec. 35.6315 through 35.6350 of 
this subpart.



Sec. 35.6315  Alternative methods for obtaining property.

    (a) Purchase equipment with recipient funds. The recipient may 
purchase equipment with the recipient's own funds and may charge EPA a 
fee for using equipment on a CERCLA-funded project. The fee must be 
based on a usage rate, subject to the usage rate requirements in 
Sec. 35.6320 of this subpart.
    (b) Borrow federally owned property. The recipient may borrow 
federally owned property, with the exception of motor vehicles, for use 
on CERCLA-funded projects. The loan of the federally owned property may 
only extend through the project period. At the end of the project 
period, or when the federally owned property is no longer needed for the 
project, the recipient must return the property to the Federal 
Government.
    (c) Lease, use contractor services, or purchase with CERCLA funds. 
To acquire equipment through lease, use of contractor services, or 
purchase with CERCLA funds, the recipient must conduct and document a 
cost comparison analysis to determine which of these methods of 
obtaining equipment is the most cost effective. In order to obtain

[[Page 606]]

the equipment, the recipient must submit documentation of the cost 
comparison analysis to EPA for approval. The recipient must obtain the 
equipment through the most cost effective method, subject to the 
requirements listed below:
    (1) Lease or rent equipment. If it is the most cost effective method 
of acquisition, the recipient may lease or rent equipment, subject only 
to the requirements in Sec. 35.6300 of this subpart.
    (2) Use contractor services. (i) If it is the most cost effective 
method of acquisition, the recipient may hire the services of a 
contractor.
    (ii) The recipient must obtain award official approval before 
authorizing the contractor to purchase equipment with CERCLA funds. (See 
Sec. 35.6325 of this subpart regarding the title and vested interest of 
equipment purchased with CERCLA funds.) This does not apply for 
recipients who have used the sealed bids method of procurement.
    (iii) The recipient must require the contractor to allocate the cost 
of the contractor services by site, activity, and operable unit, as 
applicable.
    (3) Purchase equipment with CERCLA funds. If equipment purchase is 
the most cost-effective method of obtaining the equipment, the recipient 
may purchase the equipment with CERCLA funds. To purchase equipment with 
CERCLA funds, the recipient must comply with the following requirements:
    (i) The recipient must include in the Cooperative Agreement 
application a list of all items of equipment to be purchased with CERCLA 
funds, with the price of each item.
    (ii) If the equipment is to be used on sites, the recipient must 
allocate the cost of the equipment by site, activity, and operable unit, 
as applicable, by applying a usage rate subject to the usage rate 
requirements in Sec. 35.6320 of this subpart.
    (iii) The recipient may not use CERCLA funds to purchase a 
transportable or mobile treatment system.
    (iv) Equipment obtained with Core Program funds must be for non-
site-specific purposes. All purchases of equipment must comply with the 
requirements in Sec. 35.6300, and Sec. Sec. 35.6310 through 35.6350 of 
this subpart, except where these requirements are site-specific.



Sec. 35.6320  Usage rate.

    (a) Usage rate approval. To charge EPA a fee for use of equipment 
purchased with recipient funds or to allocate the cost of equipment by 
site, activity, and operable unit, as applicable, the recipient must 
apply a usage rate. The recipient must submit documentation of the usage 
rate computation to EPA. The EPA-approved usage rate must be included in 
the Cooperative Agreement before the recipient incurs these equipment 
costs.
    (b) Usage rate application. The recipient must record the use of the 
equipment by site, activity, and operable unit, as applicable, and must 
apply the usage rate to calculate equipment charges by site, activity, 
and operable unit, as applicable. For Core Program and pre-remedial 
activities, the recipient is not required to apply a usage rate.



Sec. 35.6325  Title and EPA interest in CERCLA-funded property.

    (a) EPA's interest in CERCLA-funded property. EPA has an interest 
(the percentage of EPA's participation in the total award) in both 
equipment and supplies purchased with CERCLA funds.
    (b) Title in CERCLA-funded property. Title in both equipment and 
supplies purchased with CERCLA funds vests in the recipient.
    (1) Right to transfer title. EPA retains the right to transfer title 
of all property purchased with CERCLA funds to the Federal Government or 
a third party within 120 calendar days after project completion or at 
the time of disposal.
    (2) Equipment used as all or part of the remedy. The following 
requirements apply to equipment used as all or part of the remedy:
    (i) Fixed in-place equipment. EPA no longer has an interest in fixed 
in-place equipment once the equipment is installed.
    (ii) Equipment that is an integral part of services to individuals. 
EPA no longer has an interest in equipment that is an integral part of 
services to individuals, such as pipes, lines, or pumps providing

[[Page 607]]

hookups for homeowners on an existing water distribution system, once 
EPA certifies that the remedy is operational and functional.



Sec. 35.6330  Title to federally owned property.

    Title to all federally owned property vests in the Federal 
Government.



Sec. 35.6335  Property management standards.

    The recipient must comply with the following property management 
standards for property purchased with CERCLA funds. The recipient may 
use its own property management system if it meets the following 
standards.
    (a) Control. The recipient must maintain:
    (1) Property records for CERCLA-funded property which include the 
contents specified in Sec. 35.6700(c) of this subpart;
    (2) A control system which ensures adequate safeguards for 
prevention of loss, damage, or theft of the property. The recipient must 
make provisions for the thorough investigation and documentation of any 
loss, damage, or theft;
    (3) Procedures to ensure maintenance of the property in good 
condition and periodic calibration of the instruments used for precision 
measurements;
    (4) Sales procedures to ensure the highest possible return, if the 
recipient is authorized to sell the property;
    (5) Provisions for financial control and accounting in the financial 
management system of all equipment; and
    (6) Identification of all federally owned property.
    (b) Inventory and reporting for CERCLA-funded equipment.
    (1) Physical inventory. The recipient must conduct a physical 
inventory at least once every two years for all equipment except that 
which is part of the in-place remedy. The recipient must reconcile 
physical inventory results with the equipment records.
    (2) Inventory reports. The recipient must comply with requirements 
for inventory reports set forth in Sec. 35.6660 of this subpart.
    (c) Inventory and reporting for federally owned property.
    (1) Physical inventory. The recipient must conduct a physical 
inventory:
    (i) Annually;
    (ii) When the property is no longer needed; and
    (iii) Within 90 days after the end of the project period.
    (2) Inventory reports. The recipient must comply with requirements 
for inventory reports in Sec. 35.6660 of this subpart.



Sec. 35.6340  Disposal of CERCLA-funded property.

    (a) Equipment. For equipment which is no longer needed, or at the 
end of the project period, whichever is earlier, the recipient must:
    (1) Analyze two alternatives: the cost of leaving the equipment in 
place, and the cost of removing the equipment and disposing of it in 
another manner;
    (2) Document the analysis of the two alternatives in the inventory 
report. See Sec. 35.6660 of this subpart regarding requirements for the 
inventory report.
    (i) If it is most cost-effective to remove the equipment and dispose 
of it in another manner:
    (A) If the equipment has a residual fair market value of $5,000 or 
more, the recipient must request disposition instructions from EPA in 
the inventory report. See Sec. 35.6345 of this subpart for equipment 
disposal options.
    (B) If the equipment has a residual fair market value of less than 
$5,000, the recipient may retain the equipment for the recipient's use 
on another CERCLA site. If, however, there is any remaining residual 
value at the time of final disposition, the recipient must reimburse the 
Hazardous Substance Superfund for EPA's vested interest in the current 
fair market value of the equipment at the time of disposition.
    (ii) If it is most cost-effective to leave the equipment in place, 
recommend in the inventory report that the equipment be left in place.
    (3) Submit the inventory report to EPA, even if EPA has stopped 
supporting the project.
    (b) Supplies. (1) If supplies have an aggregate fair market value of 
$5,000 or more at the end of the project period, the recipient must take 
one of the following actions at the direction of EPA:
    (i) Use the supplies on another CERCLA project and reimburse the

[[Page 608]]

original project for the fair market value of the supplies;
    (ii) If both the recipient and EPA concur, keep the supplies and 
reimburse the Hazardous Substance Superfund for EPA's interest in the 
current fair market value of the supplies; or
    (iii) Sell the supplies and reimburse the Hazardous Substance 
Superfund for EPA's interest in the current fair market value of the 
supplies, less any reasonable selling expenses.
    (2) If the supplies remaining at the end of the project period have 
an aggregate fair market value of less than $5,000, the recipient may 
keep the supplies to use on another CERCLA project. If the recipient 
cannot use the supplies on another CERCLA project, then the recipient 
may keep or sell the supplies without reimbursing the Hazardous 
Substance Superfund.



Sec. 35.6345  Equipment disposal options.

    The following disposal options are available:
    (a) Use the equipment on another CERCLA project and reimburse the 
original project for the fair market value of the equipment;
    (b) If both the recipient and EPA concur, keep the equipment and 
reimburse the Hazardous Substance Superfund, for EPA's interest in the 
current fair market value of the equipment;
    (c) Sell the equipment and reimburse the Hazardous Substance 
Superfund for EPA's interest in the current fair market value of the 
equipment, less any reasonable selling expenses; or
    (d) Return the equipment to EPA and, if applicable, EPA will 
reimburse the recipient for the recipient's proportionate share in the 
current fair market value of the equipment.



Sec. 35.6350  Disposal of federally owned property.

    When federally owned property is no longer needed, or at the end of 
the project, the recipient must inform EPA that the property is 
available for return to the Federal Government. EPA will send 
disposition instructions to the recipient.

        Real Property Requirements under a Cooperative Agreement



Sec. 35.6400  Acquisition and transfer of interest.

    (a) An interest in real property may be acquired only with prior 
approval of EPA.
    (1) If the recipient acquires real property in order to conduct the 
response, the recipient with jurisdiction over the property must agree 
to hold the necessary property interest.
    (2) If it is necessary for the Federal Government to acquire the 
interest in real estate to permit conduct of a remedial action, the 
acquisition may be made only if the State, or Indian Tribe to the extent 
of its legal authority, provides assurance that it will accept transfer 
of the acquired interest in accordance with 40 CFR 300.510(f). States 
and Indian Tribes must follow the requirements in 
Sec. Sec. 35.6105(b)(5) and 35.6110(b)(2) respectively, of this subpart.
    (b) The recipient must comply with applicable Federal regulations 
for real property acquisition under assistance agreements contained in 
part 4 of this chapter, ``Uniform Relocation Assistance and Real 
Property Acquisition for Federal and Federally-Assisted Programs.''

[55 FR 23007, June 5, 1990, as amended at 59 FR 35854, July 14, 1994]



Sec. 35.6405  Use.

    The recipient must comply with the requirements regarding real 
property described in 40 CFR 31.31.

          Copyright Requirements under a Cooperative Agreement



Sec. 35.6450  General requirements.

    The recipient must comply with the requirements regarding copyrights 
described in 40 CFR 31.34. The recipient must comply with the 
requirements regarding contract copyright provisions described in 
Sec. 35.6595(b)(3) of this subpart.

[[Page 609]]

   Use of Recipient Employees (``Force Account'') Under a Cooperative 
                                Agreement



Sec. 35.6500  General requirements.

    (a) Force Account work is the use of the recipient's own employees 
or equipment for construction, construction-related activities 
(including architecture and engineering services), or repair or 
improvement to a facility. When using Force Account work, the recipient 
must demonstrate that the employees can complete the work as competently 
as, and more economically than, contractors, or that an emergency 
necessitates the use of the Force Account.
    (b) Where the value of Force Account services exceeds $25,000, the 
recipient must receive written authorization for use from the award 
official.

         Procurement Requirements under a Cooperative Agreement



Sec. 35.6550  Procurement system standards.

    (a) Recipient standards--(1) Procurement system evaluation. (i) An 
applicant or recipient must evaluate its own procurement system to 
determine if the system meets the intent of the requirements of this 
subpart. After evaluating its procurement system, the applicant or 
recipient must complete the ``Procurement System Certification'' (EPA 
Form 5700-48) and submit the form to EPA with its application.
    (ii) The certification will be valid for two years or for the length 
of the project period specified in the Cooperative Agreement, whichever 
is greater, unless the recipient substantially revises its procurement 
system or the award official determines that the recipient is not 
following the intent of the requirements in this part. (See subparagraph 
(a)(4) of this section regarding EPA right to review.) If the recipient 
substantially revises its procurement system, the recipient must re-
evaluate its system and submit a revised EPA Form 5700-48.
    (2) Certified procurement system. Even if the applicant or recipient 
has certified that its procurement system meets the intent of the 
requirements of this subpart, the EPA award official retains the 
authority as stated in:
    (i) Section 35.6565(d)(1)(iii), ``Noncompetitive proposals,'' 
regarding award official authorization of noncompetitive proposals;
    (ii) Section 35.6565(b), ``Sealed bids (formal advertising),'' 
regarding award official approval for the use of a procurement method 
other than sealed bidding for a remedial action award contract, except 
for Architectural/Engineering services and post-removal site control;
    (iii) Section 35.6550(a)(9), ``Protests,'' regarding EPA review of 
protests; and
    (iv) 40 CFR 31.36(g)(2)(iv), ``Awarding Agency Review,'' regarding 
the review of proposed awards over $25,000 which are to be awarded to 
other than the apparent low bidder under a sealed bid procurement.
    (3) Noncertified procurement system. If the applicant or recipient 
has not certified that its procurement system meets the intent of the 
requirements of this subpart, then the recipient must follow the 
requirements of this subpart and allow EPA preaward review of proposed 
procurement actions that will use EPA funds. In addition, the 
recipient's contractors and subcontractors must submit their cost or 
price data on EPA Form 5700-41, ``Cost or Price Summary Format for 
Subagreements Under U.S. EPA Grants,'' or in another format which 
provides information similar to that required by EPA Form 5700-41. This 
specific requirement is an addition to the requirements regarding cost 
and price analysis described in Sec. 35.6585 of this subpart.
    (4) EPA review. EPA reserves the right to review any recipient's 
procurement system or procurement action under a Cooperative Agreement.
    (5) Code of conduct. The recipient must comply with the requirements 
of 40 CFR 31.36(b)(3), which describes standards of conduct for 
employees, officers, and agents of the recipient.
    (6) Completion of contractual and administrative issues. (i) The 
recipient is responsible for the settlement and satisfactory completion 
in accordance with sound business judgement and good administrative 
practice of all contractual and administrative issues arising out of 
procurements under the Cooperative Agreement.

[[Page 610]]

    (ii) EPA will not substitute its judgement for that of the recipient 
unless the matter is primarily a Federal concern.
    (iii) Violations of law will be referred to the local, State, 
Tribal, or Federal authority having proper jurisdiction.
    (7) Selection procedures. The recipient must have written selection 
procedures for procurement transactions.
    (i) EPA may not participate in a recipient's selection panel except 
to provide technical assistance. EPA staff providing such technical 
assistance:
    (A) Shall constitute a minority of the selection panel (limited to 
making recommendations on qualified offers and acceptable proposals 
based on published evaluation criteria) for the contractor selection 
process; and
    (B) Are not permitted to participate in the negotiation and award of 
contracts.
    (ii) When selecting a contractor, recipients:
    (A) May not use EPA contractors to provide any support related to 
procuring a State contractor.
    (B) May use the Corps of Engineers for review of State bidding 
documents, requests for proposals and bids and proposals received.
    (8) Award. The recipient may award a contract only to a responsible 
contractor, as described in 40 CFR 31.36(b)(8), and must ensure that 
each contractor performs in accordance with all the provisions of the 
contract. (See also 35.6560 of this subpart regarding debarred and 
suspended contracts.)
    (9) Protest procedures. The recipient must comply with the 
requirements described in 40 CFR 31.36(b)(12) regarding protest 
procedures.
    (10) Reporting. The recipient must comply with the requirements for 
procurement reporting contained in Sec. 35.6665 of this subpart.
    (11) Intergovernmental agreements. (i) To foster greater economy and 
efficiency, recipients are encouraged to enter into intergovernmental 
agreements for procurement or use of common goods and services.
    (ii) Although intergovernmental agreements are not subject to the 
requirements set forth at Sec. Sec. 35.6550 through 35.6610, all 
procurements under intergovernmental agreements are subject to these 
requirements except for procurements that are:
    (A) Incidental to the purpose of the assistance agreement; and
    (B) Made through a central public procurement unit.
    (12) Value engineering. The recipient is encouraged to include value 
engineering clauses in contracts for construction projects of sufficient 
size to offer reasonable opportunities for cost reductions.
    (b) Contractor standards--(1) Disclosure requirements regarding 
Potentially Responsible Party relationships. The recipient must require 
each prospective contractor to provide with its bid or proposal:
    (i) Information on its financial and business relationship with all 
PRPs at the site and with the contractor's parent companies, 
subsidiaries, affiliates, subcontractors, or current clients at the 
site. Prospective contractors under a Core Program Cooperative Agreement 
must provide comparable information for all sites within the recipient's 
jurisdiction. (This disclosure requirement encompasses past financial 
and business relationships, including services related to any proposed 
or pending litigation, with such parties);
    (ii) Certification that, to the best of its knowledge and belief, it 
has disclosed such information or no such information exists; and
    (iii) A statement that it shall disclose immediately any such 
information discovered after submission of its bid or proposal or after 
award. The recipient shall evaluate such information and if a member of 
the contract team has a conflict of interest which prevents the team 
from serving the best interests of the recipient, the prospective 
contractor may be declared nonresponsible and the contract awarded to 
the next eligible bidder or offeror.
    (2) Conflict of interest--(i) Conflict of interest notification. The 
recipient must require the contractor to notify the recipient of any 
actual, apparent, or potential conflict of interest regarding any 
individual working on a contract assignment or having access to 
information regarding the contract. This notification shall include both 
organizational conflicts of interest and personal conflicts of interest. 
If a personal

[[Page 611]]

conflict of interest exists, the individual who is affected shall be 
disqualified from taking part in any way in the performance of the 
assigned work that created the conflict of interest situation.
    (ii) Contract provisions. The recipient must incorporate the 
following provisions or their equivalents into all contracts, except 
those for well-drilling, fence erecting, plumbing, utility hook-ups, 
security guard services, or electrical services:
    (A) Contractor data. The contractor shall not provide data generated 
or otherwise obtained in the performance of contractor responsibilities 
under a contract to any party other than the recipient, EPA, or its 
authorized agents for the life of the contract, and for a period of five 
years after completion of the contract.
    (B) Employment. The contractor shall not accept employment from any 
party other than the recipient or Federal agencies for work directly 
related to the site(s) covered under the contract for five years after 
the contract has terminated. The recipient agency may exempt the 
contractor from this requirement through a written release. This release 
must include EPA concurrence.
    (3) Certification of independent price determination. The recipient 
must require that each contractor include in its bid or proposal a 
certification of independent price determination. This document 
certifies that no collusion, as defined by Federal and State antitrust 
laws, occurred during bid preparation.
    (4) Recipient's Contractors. The recipient must require its 
contractor to comply with the requirements in Sec. Sec. 35.6270(a) (1) 
and (2); 35.6320 (a) and (b); 35.6335; 35.6700; and 35.6705. For 
additional contractor requirements, see also Sec. Sec. 35.6710(c); 
35.6590(c); and 35.6610.



Sec. 35.6555  Competition.

    The recipient must conduct all procurement transactions in a manner 
providing maximum full and open competition.
    (a) Restrictions on competition. Inappropriate restrictions on 
competition include the following:
    (1) Placing unreasonable requirements on firms in order for them to 
qualify to do business;
    (2) Requiring unnecessary experience and excessive bonding 
requirements;
    (3) Noncompetitive pricing practices between firms or between 
affiliated companies;
    (4) Noncompetitive awards to consultants that are on retainer 
contracts;
    (5) Organizational conflicts of interest;
    (6) Specifying only a ``brand name'' product, instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement; and
    (7) Any arbitrary action in the procurement process.
    (b) Geographic and Indian Tribe preferences--(1) Geographic. When 
conducting a procurement, the recipient must prohibit the use of 
statutorily or administratively imposed in-State or local geographical 
preferences in evaluating bids or proposals. However, nothing in this 
section preempts State licensing laws. In addition, when contracting for 
architectural and engineering (A/E) services, the recipient may use 
geographic location as a selection criterion, provided that when 
geographic location is used, its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (2) Indian Tribe. If the project benefits Indians, the recipient 
must comply with the Indian Self-Determination and Education Assistance 
Act of 1975 (Pub. L. 93-638).
    (c) Written specifications. The recipient's written specifications 
must include a clear and accurate description of the technical 
requirements and the qualitative nature of the material, product or 
service to be procured.
    (1) This description must not contain features which unduly restrict 
competition, unless the features are necessary to:
    (i) Test or demonstrate a specific thing;
    (ii) Provide for necessary interchangeability of parts and 
equipment; or
    (iii) Promote innovative technologies.

[[Page 612]]

    (2) The recipient must avoid the use of detailed product 
specifications if at all possible.
    (d) Public notice. When soliciting bids or proposals, the recipient 
must allow sufficient time (generally 30 calendar days) between public 
notice of the proposed project and the deadline for receipt of bids or 
proposals. The recipient must publish the public notice in professional 
journals, newspapers, or publications of general circulation over a 
reasonable area.
    (e) Prequalified lists. Recipients may use prequalified lists of 
persons, firms, or products to acquire goods and services. The list must 
be current and include enough qualified sources to ensure maximum open 
and free competition. Recipients must not preclude potential bidders 
from qualifying during the solicitation period.



Sec. 35.6560  Master list of debarred, suspended, and voluntarily excluded persons.

    While evaluating bids or proposals, the recipient must consult the 
most current ``List of Parties Excluded from Federal Procurement or Non-
procurement Programs'' to ensure that the firms submitting proposals are 
not prohibited from participation in assistance programs. The recipient 
must comply with the requirements regarding subawards to debarred and 
suspended parties described in 40 CFR 31.35.



Sec. 35.6565  Procurement methods.

    The recipient must comply with the requirements for payment to 
consultants described in 40 CFR 31.36(j). In addition, the recipient 
must comply with the following requirements:
    (a) Small purchase procedures. Small purchase procedures are those 
relatively simple and informal procurement methods for securing 
services, supplies, or other property that do not cost more than $25,000 
in the aggregate. If small purchase procurements are used, the recipient 
must obtain and document price or rate quotations from an adequate 
number of qualified sources.
    (b) Sealed bids (formal advertising). (For a remedial action award 
contract, except for Architectural/Engineering services and post-removal 
site control, the recipient must obtain the award official's approval to 
use a procurement method other than the sealed bid method.) Bids are 
publicly solicited and a fixed-price contract (lump sum or unit price) 
is awarded to the responsible bidder whose bid, conforming with all the 
material terms and conditions of the invitation for bids, is the lowest 
in price.
    (1) In order for the recipient to use the sealed bid method, the 
following conditions must be met:
    (i) A complete, adequate, and realistic specification or purchase 
description is available;
    (ii) Two or more responsible bidders are willing and able to compete 
effectively for the business; and
    (iii) The procurement lends itself to a fixed-price contract and the 
selection of the successful bidder can be made principally on the basis 
of price.
    (2) If the recipient uses the sealed bid method, the recipient must 
comply with the following requirements:
    (i) Publicly advertise the invitation for bids and solicit bids from 
an adequate number of known suppliers, providing them sufficient time 
prior to the date set for opening the bids;
    (ii) The invitation for bids, which must include any specifications 
and pertinent attachments, must define the items or services in order 
for the bidder to properly respond;
    (iii) Publicly open all bids at the time and place prescribed in the 
invitation for bids;
    (iv) Award the fixed-price contract in writing to the lowest 
responsive and responsible bidder. Where specified in bidding documents, 
the recipient shall consider factors such as discounts, transportation 
cost, and life cycle costs in determining which bid is lowest. The 
recipient may only use payment discounts to determine the low bid when 
prior experience indicates that such discounts are usually taken 
advantage of; and
    (v) If there is a sound documented reason, the recipient may reject 
any or all bids.
    (c) Competitive proposals. The technique of competitive proposals is 
normally conducted with more than one source submitting an offer, and 
either

[[Page 613]]

a fixed-price or cost-reimbursement type contract is awarded. It is 
generally used when conditions are not appropriate for the use of sealed 
bids. If the recipient uses the competitive proposal method, the 
following requirements apply:
    (1) Recipients must publicize requests for proposals and all 
evaluation factors and must identify their relative importance. The 
recipient must honor any response to publicized requests for proposals 
to the maximum extent practical;
    (2) Recipients must solicit proposals from an adequate number of 
qualified sources;
    (3) Recipients must have a method for conducting technical 
evaluations of the proposals received and for selecting awardees;
    (4) Recipients must award the contract to the responsible firm whose 
proposal is most advantageous to the program, with price and other 
factors considered; and
    (5) Recipients may use competitive proposal procedures for 
qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitor's qualifications are evaluated 
and the most qualified competitor. is selected, subject to negotiation 
of fair and reasonable compensation. This method, where price is not 
used as a selection factor, may only be used in the procurement of A/E 
professional services. The recipient may not use this method to purchase 
other types of services even though A/E firms are a potential source to 
perform the proposed effort.
    (d) Noncompetitive proposals. (1) The recipient may procure by 
noncompetitive proposals only when the award of a contract is infeasible 
under small purchase procedures, sealed bids or competitive proposals, 
and one of the following circumstances applies:
    (i) The item is available only from a single source;
    (ii) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation (a declaration of 
an emergency under State law does not necessarily constitute an 
emergency under the EPA Superfund program's criteria);
    (iii) The award official authorized noncompetitive proposals; or
    (iv) After solicitation of a number of sources, competition is 
determined to be inadequate.
    (2) When using noncompetitive procurement, the recipient must 
conduct a cost analysis in accordance with the requirements described in 
Sec. 35.6585 of this subpart.



Sec. 35.6570  Use of the same engineer during subsequent phases of response.

    (a) If the public notice clearly stated the possibility that the 
firm or individual selected could be awarded a contract for follow-on 
services and initial procurement complied with the procurement 
requirements of this subpart, the recipient of a CERCLA remedial 
response Cooperative Agreement may use the engineer procured to conduct 
any or all of the follow-on engineering activities without going through 
the public notice and evaluation procedures.
    (b) The recipient may also use the same engineer during subsequent 
phases of the project in the following cases:
    (1) Where the recipient conducted the RI, FS, or design activities 
without EPA assistance but is using CERCLA funds for follow-on 
activities, the recipient may use the engineer for subsequent work 
provided the recipient certifies:
    (i) That it complied with the procurement requirements in 
Sec. 35.6565 of this subpart when it selected the engineer and the code 
of conduct requirements described in 40 CFR 31.36(b)(3).
    (ii) That any CERCLA-funded contract between the engineer and the 
recipient meets all of the other provisions as described in the 
procurement requirements in this subpart.
    (2) Where EPA conducted the RI, FS, or design activities but the 
recipient will assume the responsibility for subsequent phases of 
response under a Cooperative Agreement, the recipient may use, with the 
award official's approval, EPA's engineer contractor without further 
public notice or evaluation provided the recipient follows the rest of 
the procurement requirements of this subpart to award the contract.

[[Page 614]]



Sec. 35.6575  Restrictions on types of contracts.

    (a) Prohibited contracts. The recipient's procurement system must 
not allow cost-plus-percentage-of-cost (e.g., a multiplier which 
includes profit) or percentage-of-construction-cost types of contracts.
    (b) Removal. Under a removal Cooperative Agreement, the recipient 
must award a fixed price contract (lump sum, unit price, or a 
combination of the two) when procuring contractor support, regardless of 
the procurement method selected, unless the recipient obtains the award 
official's prior written approval.
    (c) Time and material contracts. The recipient may use time and 
material contracts only if no other type of contract is suitable, and if 
the contract includes a ceiling price that the contractor exceeds at its 
own risk.



Sec. 35.6580  Contracting with minority and women's business enterprises (MBE/WBE), small businesses, and labor surplus area firms.

    (a) Procedures. The recipient must comply with the six steps 
described in 40 CFR 31.36(e)(2) to ensure that MBEs, WBEs, and small 
businesses are used whenever possible as sources of supplies, 
construction, and services. Tasks to encourage small, minority, and 
women's business utilization in the Superfund program are eligible for 
funding under Core Program Cooperative Agreements.
    (b) Labor surplus firms. EPA encourages recipients to procure 
supplies and services from labor surplus area firms.
    (c) ``Fair share'' objectives. It is EPA's policy that recipients 
award a fair share of contracts to small, minority and women's 
businesses. The policy requires that fair share objectives for minority 
and women-owned business enterprises be negotiated with the States and/
or recipients, but does not require fair share objectives be established 
for small businesses.
    (1) Each recipient must establish an annual ``fair share'' objective 
for MBE and WBE use. A recipient is not required to attain a particular 
statistical level of participation by race, ethnicity, or gender of the 
contractor's owners or managers.
    (2) If the recipient is awarded more than one Cooperative Agreement 
during the year, the recipient may negotiate an annual fair share for 
all Cooperative Agreements for that year. It is not necessary to have a 
fair share for each Cooperative Agreement. When a Cooperative Agreement 
is awarded to a recipient with which a ``fair share'' agreement has not 
been negotiated, the recipient must not award any contracts under the 
Cooperative Agreement until the recipient has negotiated a fair share 
objective with EPA.



Sec. 35.6585  Cost and price analysis.

    (a) General. The recipient must conduct and document a cost or price 
analysis in connection with every procurement action including contract 
modification.
    (1) Cost analysis. The recipient must conduct and document a cost 
analysis for all negotiated contracts over $25,000 and for all change 
orders regardless of price. A cost analysis is not required when 
adequate price competition exists and the recipient can establish price 
reasonableness. The recipient must base its determination of price 
reasonableness on a catalog or market price of a commercial product sold 
in substantial quantities to the general public, or on prices set by law 
or regulation.
    (2) Price analysis. In all instances other than those described in 
(a)(1) of this section, the recipient must perform a price analysis to 
determine the reasonableness of the proposed contract price.
    (b) Profit analysis. For each contract in which there is no price 
competition and in all cases in which cost analysis is performed, the 
recipient must negotiate profit as a separate element of the price. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.

[[Page 615]]



Sec. 35.6590  Bonding and insurance.

    (a) General. The recipient must meet the requirements regarding 
bonding described in 40 CFR 31.36(h). The recipient must clearly and 
accurately state in the contract documents the bonds and insurance 
requirements, including the amounts of security coverage that a bidder 
or offeror must provide.
    (b) Indemnification. When adequate pollution liability insurance is 
not available to the contractor, EPA may indemnify response contractors 
for liability related to damage from releases arising out of the 
contractor's negligent performance. The recipient must comply with the 
requirements regarding indemnification described in section 119 of 
CERCLA.
    (c) Accidents and catastrophic loss. The recipient must require the 
contractor to provide insurance against accidents and catastrophic loss 
to manage any risk inherent in completing the project.



Sec. 35.6595  Contract provisions.

    (a) General. Each contract must be a sound and complete agreement, 
and include the following provisions:
    (1) Nature, scope, and extent of work to be performed;
    (2) Time frame for performance;
    (3) Total cost of the contract; and
    (4) Payment provisions.
    (b) Other contract provisions. Recipients' contracts must include 
the following provisions:
    (1) Energy efficiency. A contract must comply with mandatory 
standards and policies on energy efficiency contained in the State's 
energy conservation plan which is issued in compliance with the Energy 
Policy and Conservation Act (Pub. L. 94-163).
    (2) Violating facilities. Contracts in excess of $100,000 must 
contain a provision which requires contractor compliance with all 
applicable standards, orders or requirements issued under section 306 of 
the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water 
Act (33 U.S.C. 1368), Executive Order 11738, and EPA regulations (40 CFR 
part 15) which prohibit the use of facilities included on the EPA List 
of Violating Facilities under nonexempt Federal contracts, grants or 
loans.
    (3) Patents, inventions, and copyrights. All contracts must include 
notice of EPA requirements and regulations pertaining to reporting and 
patent rights under any contract involving research, developmental, 
experimental or demonstration work with respect to any discovery or 
invention which arises or is developed while conducting work under a 
contract. This notice shall also include EPA requirements and 
regulations pertaining to copyrights and rights to data contained in 40 
CFR 31.34.
    (4) Labor standards. The recipient must include a copy of EPA Form 
5720-4 (``Labor Standards Provisions for Federally Assisted Construction 
Contracts'') in each contract for construction (as defined by the 
Secretary of Labor in 29 CFR part 5). The form contains the Davis-Bacon 
Act requirements (40 U.S.C. 276a-276a-7), the Copeland Regulations (29 
CFR part 3), the Contract Work Hours and Safety Standards Act Overtime 
Compensation (940 U.S.C. 327-333), and the nondiscrimination provisions 
in Executive Order 11246, as amended.
    (5) Conflict of interest. The recipient must include provisions 
pertaining to conflict of interest as described in 
Sec. 35.6550(b)(2)(ii) of this subpart.
    (c) Model clauses. The recipient must comply with the requirements 
regarding model contract clauses described in 40 CFR 33.1030 (1987).



Sec. 35.6600  Contractor claims.

    (a) General. The recipient must conduct an administrative and 
technical review of each claim before EPA will consider funding these 
costs.
    (b) Claims settlement. The recipient may incur costs (including 
legal, technical and administrative) to assess the merits of or to 
negotiate the settlement of a claim by or against the recipient under a 
contract, provided:
    (1) The claim arises from work within the scope of the Cooperative 
Agreement;
    (2) A formal Cooperative Agreement amendment is executed 
specifically covering the costs before they are incurred;

[[Page 616]]

    (3) The costs are not incurred to prepare documentation that should 
be prepared by the contractor to support a claim against the recipient; 
and
    (4) The award official determines that there is a significant 
Federal interest in the issues involved in the claim.
    (c) Claims defense. The recipient may incur costs (including legal, 
technical and administrative) to defend against a contractor claim for 
increased costs under a contract or to prosecute a claim to enforce a 
contract provided:
    (1) The claim arises from work within the scope of the Cooperative 
Agreement;
    (2) A formal Cooperative Agreement amendment is executed 
specifically covering the costs before they are incurred;
    (3) Settlement of the claim cannot occur without arbitration or 
litigation;
    (4) The claim does not result from the recipient's mismanagement;
    (5) The award official determines that there is a significant 
Federal interest in the issues involved in the claim; and
    (6) In the case of defending against a contractor claim, the claim 
does not result from the recipient's responsibility for the improper 
action of others.



Sec. 35.6605  Privity of contract.

    Neither EPA nor the United States shall be a party to any contract 
nor to any solicitation or request for proposals.



Sec. 35.6610  Contracts awarded by a contractor.

    The recipient must require its contractor to comply with the 
following provisions in the award of contracts (i.e. subcontracts). 
(This section does not apply to a supplier's procurement of materials to 
produce equipment, materials and catalog, off-the-shelf, or manufactured 
items.)
    (a) The requirements regarding debarred, suspended, and voluntarily 
excluded persons in Sec. 35.6560 of this subpart.
    (b) The limitations on contract award in Sec. 35.6550(a)(8) of this 
subpart.
    (c) The requirements regarding minority and women's business 
enterprises, and small business in Sec. 35.6580 of this subpart.
    (d) The requirements regarding specifications in Sec. 35.6555 (a)(6) 
and (c) of this subpart.
    (e) The Federal cost principles in 40 CFR 31.22.
    (f) The prohibited types of contracts in Sec. 35.6575(a) of this 
subpart.
    (g) The cost, price analysis, and profit analysis requirements in 
Sec. 35.6585 of this subpart.
    (h) The applicable provisions in Sec. 35.6595 (b) and (c) of this 
subpart.
    (i) The applicable provisions in Sec. 35.6555(b)(2).

             Reports Required Under a Cooperative Agreement



Sec. 35.6650  Quarterly progress reports.

    (a) Reporting frequency. The recipient must submit progress reports 
quarterly on the activities delineated in the Statement of Work. EPA may 
not require submission of progress reports more often than quarterly. 
The reports must be submitted within 30 days of the end of each Federal 
Fiscal quarter.
    (b) Content. The quarterly progress report must contain the 
following information:
    (1) An explanation of work accomplished during the reporting period, 
delays, or other problems, if any, and a description of the corrective 
measures that are planned. For pre-remedial Cooperative Agreements, the 
report must include a list of the site-specific products completed and 
the estimated number of technical hours spent to complete each product.
    (2) A comparison of the percentage of the project completed to the 
project schedule, and an explanation of significant discrepancies.
    (3) A comparison of the estimated funds spent to date to planned 
expenditures and an explanation of significant discrepancies. For 
remedial, enforcement, and removal reports, the comparison must be on a 
per task basis.
    (4) An estimate of the time and funds needed to complete the work 
required in the Cooperative Agreement, a comparison of that estimate to 
the time and funds remaining, and a justification for any increase.

[[Page 617]]



Sec. 35.6655  Notification of significant developments.

    Events may occur between the scheduled performance reporting dates 
which have significant impact upon the Cooperative Agreement-supported 
activity. In such cases, the recipient must inform the EPA project 
officer as soon as the following types of conditions become known:
    (a) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (b) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.



Sec. 35.6660  Property inventory reports.

    (a) CERCLA-funded property--(1) Content. The report must contain the 
following information:
    (i) Classification and value of remaining supplies;
    (ii) Description of all equipment purchased with CERCLA funds, 
including its current condition;
    (iii) Verification of the current use and continued need for the 
equipment by site, activity, and operable unit, as applicable;
    (iv) Notification of any property which has been stolen or 
vandalized; and
    (v) A request for disposition instructions for any equipment no 
longer needed on the project.
    (2) Reporting frequency. The recipient must submit an inventory 
report to EPA at the following times:
    (i) Within 90 days after completing any CERCLA-funded project or any 
response activity at a site; and
    (ii) When the equipment is no longer needed for any CERCLA-funded 
project or any response activity at a site.
    (b) Federally owned property--(1) Content. The recipient must 
include the following information for each federally owned item in the 
inventory report:
    (i) Description;
    (ii) Decal number;
    (iii) Current condition; and
    (iv) Request for disposition instructions.
    (2) Reporting frequency. The recipient must submit an inventory 
report to the appropriate EPA property accountable officer at the 
following times:
    (i) Annually, due to EPA on the anniversary date of the award;
    (ii) When the property is no longer needed; and
    (iii) Within 90 days after the end of the project period.



Sec. 35.6665  Procurement reports.

    (a) Department of Labor (DOL) Reports--(1) Content. The recipient 
must notify the DOL Regional Office of Compliance, in writing, of each 
construction contract which has or is expected to have an aggregate 
value of over $10,000 within a 12-month period. The report must include 
the following:
    (i) Construction contractor's name, address, telephone number, and 
employee identification number;
    (ii) Award amount;
    (iii) Estimated start and completion dates; and
    (iv) Project number, name, and site location.
    (2) Reporting frequency. The recipient must notify the DOL Office of 
Compliance within 10 calendar days after the award of each such 
construction contract. The recipient must submit a copy of the report to 
the EPA project officer.
    (b) Minority and women's business enterprise (MBE/WBE) Reports. (1) 
The recipient must report on its use of MBE and WBE firms by submitting 
a completed Minority and Women's Business Utilization Report (SF-334) to 
the award official. Reporting commences with the recipient's award of 
its first contract and continues until it and its contractors have 
awarded their last contract for the activities or tasks identified in 
the Cooperative Agreement. The recipient must submit the MBE/WBE 
Utilization Report within 30 days after the end of each Federal fiscal 
quarter, regardless of whether the recipient awards a contract to an MBE 
or WBE during that quarter.
    (2) The recipient must also report on its efforts to encourage MBE 
participation in the Superfund program pursuant to CERCLA Sec. 105(f). 
Information on

[[Page 618]]

the recipient's efforts to encourage MBE participation in the Superfund 
program may be included in each SF-334 submitted quarterly, but is 
required in the SF-334 submitted for the fourth quarter, due November 1 
of each year.



Sec. 35.6670  Financial reports.

    (a) General. The recipient must comply with the requirements 
regarding financial reporting described in 40 CFR 31.41.
    (b) Financial Status Report--(1) Content. (i) The Financial Status 
Report (SF-269) must include financial information by site, activity, 
and operable unit, as applicable.
    (ii) A final Financial Status Report (FSR) must have no unliquidated 
obligations. If any obligations remain unliquidated, the FSR is 
considered an interim report and the recipient must submit a final FSR 
to EPA after liquidating all obligations.
    (2) Reporting frequency. The recipient must file a Financial Status 
Report as follows:
    (i) Annually due 90 days after the end of the Federal fiscal year or 
as specified in the Cooperative Agreement; or if quarterly or semiannual 
reports are required in accordance with 40 CFR 31.41(b)(3), due 30 days 
after the reporting period;
    (ii) Within 90 calendar days after completing each CERCLA-funded 
response activity at a site (submit the FSR only for each completed 
activity); and
    (iii) Within 90 calendar days after termination or closeout of the 
Cooperative Agreement.

           Records Requirements Under a Cooperative Agreement



Sec. 35.6700  Project records.

    The lead agency for the response action must compile and maintain an 
administrative record consistent with section 113 of CERCLA, the 
National Contingency Plan, and relevant EPA policy and guidance. In 
addition, recipients of assistance (whether lead or support agency) are 
responsible for maintaining project files as described below.
    (a) General. The recipient must maintain project records by site, 
activity, and operable unit, as applicable.
    (b) Financial records. The recipient must maintain records which 
support the following items:
    (1) Amount of funds received and expended; and
    (2) Direct and indirect project cost.
    (c) Property records. The recipient must maintain records which 
support the following items:
    (1) Description of the property;
    (2) Manufacturer's serial number, model number, or other 
identification number;
    (3) Source of the property, including the assistance identification 
number;
    (4) Information regarding whether the title is vested in the 
recipient or EPA;
    (5) Unit acquisition date and cost;
    (6) Percentage of EPA's interest;
    (7) Location, use and condition (by site, activity, and operable 
unit, as applicable) and the date this information was recorded; and
    (8) Ultimate disposition data, including the sales price or the 
method used to determine the price, or the method used to determine the 
value of EPA's interest for which the recipient compensates EPA in 
accordance with Sec. Sec. 35.6340, 35.6345, and 35.6350 of this subpart.
    (d) Procurement records--(1) General. The recipient must maintain 
records which support the following items, and must make them available 
to the public:
    (i) The reasons for rejecting any or all bids; and
    (ii) The justification for a procurement made on a noncompetitively 
negotiated basis.
    (2) Procurements in excess of $25,000. The recipient's records and 
files for procurements in excess of $25,000 must include the following 
information, in addition to the information required in paragraph (d)(1) 
of this section:
    (i) The basis for contractor selection;
    (ii) A written justification for selecting the procurement method;
    (iii) A written justification for use of any specification which 
does not provide for maximum free and open competition;

[[Page 619]]

    (iv) A written justification for the choice of contract type; and
    (v) The basis for award cost or price, including a copy of the cost 
or price analysis made in accordance with Sec. 35.6585 of this subpart 
and documentation of negotiations.
    (e) Other records. The recipient must maintain records which support 
the following items:
    (1) Time and attendance records and supporting documentation;
    (2) Documentation of compliance with statutes and regulations that 
apply to the project; and
    (3) The number of site-specific technical hours spent to complete 
each pre-remedial product.



Sec. 35.6705  Records retention.

    (a) Applicability. This requirement applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records which are required to be maintained by the terms of this 
subpart, program regulations, or the Cooperative Agreement, or are 
otherwise reasonably considered as pertinent to program regulations or 
the Cooperative Agreement.
    (b) Length of retention period. The recipient must maintain all 
records for 10 years following submission of the final Financial Status 
Report unless otherwise directed by the EPA award official, and must 
obtain written approval from the EPA award official before destroying 
any records. If any litigation, claim, negotiation, audit, cost 
recovery, or other action involving the records has been started before 
the expiration of the ten-year period, the records must be retained 
until completion of the action and resolution of all issues which arise 
from it, or until the end of the regular ten-year period, whichever is 
later.
    (c) Substitution of microform. Microform copies may be substituted 
for the original records. The recipient must have written EPA approval 
before destroying original records. The microform copying must be 
performed in accordance with the technical regulations concerning 
micrographics of Federal Government records (36 CFR part 1230) and EPA 
records management procedures (EPA Order 2160).
    (d) Starting date of retention period. The recipient must comply 
with the requirements regarding the starting dates for records retention 
described in 40 CFR 31.42(c) (1) and (2).



Sec. 35.6710  Records access.

    (a) Recipient requirements. The recipient must comply with the 
requirements regarding records access described in 40 CFR 31.42(e).
    (b) Availability of records. The recipient must, with the exception 
of certain policy, deliberative, and enforcement documents which may be 
held confidential, ensure that all files are available to the public.
    (c) Contractor requirements. The recipient must require its 
contractor to comply with the requirements regarding records access 
described in 40 CFR 31.36(i)(10).

      Other Administrative Requirements for Cooperative Agreements



Sec. 35.6750  Modifications.

    The recipient must comply with the requirements regarding changes to 
the Cooperative Agreement described in 40 CFR 31.30.



Sec. 35.6755  Monitoring program performance.

    The recipient must comply with the requirements regarding program 
performance monitoring described in 40 CFR 31.40 (a) and (e).



Sec. 35.6760  Enforcement and termination for convenience.

    The recipient must comply with all terms and conditions in the 
Cooperative Agreement, and is subject to the requirements regarding 
enforcement of the terms of an award and termination for convenience 
described in 40 CFR 31.43 and 31.44.



Sec. 35.6765  Non-Federal audit.

    The recipient must comply with the requirements regarding non-
Federal audits described in 40 CFR 31.26.



Sec. 35.6770  Disputes.

    The recipient must comply with the requirements regarding dispute 
resolution procedures described in 40 CFR 31.70.

[[Page 620]]



Sec. 35.6775  Exclusion of third-party benefits.

    The Cooperative Agreement benefits only the signatories to the 
Cooperative Agreement.



Sec. 35.6780  Closeout.

    (a) Closeout of a Cooperative Agreement, or an activity under a 
Cooperative Agreement, can take place in the following situations:
    (1) After the completion of all work for a response activity at a 
site; or
    (2) After all activities under a Cooperative Agreement have been 
completed; or
    (3) Upon termination of the Cooperative Agreement.
    (b) The recipient must comply with the closeout requirements 
described in 40 CFR 31.50 and 31.51.



Sec. 35.6785  Collection of amounts due.

    The recipient must comply with the requirements described in 40 CFR 
31.52 regarding collection of amounts due.



Sec. 35.6790  High risk recipients.

    If EPA determines that a recipient is not responsible, EPA may 
impose restrictions on the award as described in 40 CFR 31.12.

     Requirements for Administering a Superfund State Contract (SSC)



Sec. 35.6800  General.

    An SSC is required when either EPA or a political subdivision is the 
lead agency for a CERCLA response. This rule does not address whether 
Indian Tribes are subject to the requirements in Sec. 35.6805(i)(2) (See 
Sec. 35.610(a)).
    (a) EPA-lead SSC (Two-party SSC). (1) An SSC with a State or Indian 
Tribe is required before EPA can obligate or transfer funds for an EPA-
lead remedial action.
    (2) The State must comply with the requirements described in 
Sec. Sec. 35.6805 and 35.6815 of this subpart. The Indian Tribe must 
comply with the requirements described in Sec. 35.6805 (a) through (h), 
(i)(4), (l) through (v); Sec. 35.6815(b); and, if appropriate, 
Sec. 35.6815 (c) and (d).
    (b) Political subdivision-lead SSC (Three-party SSC). (1) To ensure 
State involvement as required under section 121(f) of CERCLA and subpart 
F of the National Contingency Plan, an SSC is required between EPA, the 
State and a political subdivision before a political subdivision may 
take the lead for any phase of remedial response. The SSC must contain, 
or must be amended to include, the State's assurances pursuant to 
Sec. 35.6805(i) of this subpart before EPA obligates funds for remedial 
action set forth in the Statement of Work of the SSC.
    (2) Both the State and the political subdivision must comply with 
the requirements described in Sec. Sec. 35.6805, 35.6815, and 35.6820 of 
this subpart.



Sec. 35.6805  Contents of an SSC.

    The SSC must include the following provisions:
    (a) General authorities, which documents the relevant statutes and 
regulations (of each government entity that is a party to the contract) 
governing the contract;
    (b) Purpose of the SSC, which describes the response activities to 
be conducted and the benefits to be derived;
    (c) Negation of agency relationship between the signatories, which 
states that no signatory of the SSC can represent or act on the behalf 
of any other signatory in any matter associated with the SSC;
    (d) A site description, pursuant to Sec. 35.6105(a)(2)(i) of this 
subpart;
    (e) A site-specific Statement of Work, pursuant to 
Sec. 35.6105(a)(2)(ii) of this subpart and a statement of whether the 
contract constitutes an initial SSC or an amendment to an existing 
contract;
    (f) A statement of intention to follow EPA policy and guidance;
    (g) A project schedule to be prepared during response activities;
    (h) A statement desinating a primary contact for each party to the 
contract, which designates representatives to act on behalf of each 
signatory in the implementation of the contract. This statement must 
document the authority of each project manager to approve modifications 
to the project so long as such changes are within the scope of the 
contract and do not significantly impact the SSC;
    (i) The CERCLA assurances, as appropriate, as described below:

[[Page 621]]

    (1) Operation and maintenance. The State must provide an assurance 
pursuant to Sec. 35.6105(b)(1) of this subpart.
    (2) Twenty-year waste capacity. The State must provide an assurance 
pursuant to Sec. 35.6105(b)(3) of this subpart.
    (3) Off-site storage, treatment, or disposal. If off-site storage, 
destruction, treatment, or disposal is required, the State must provide 
an assurance pursuant to Sec. 35.6105(b)(4) of this subpart; the 
political subdivision may not provide this assurance.
    (4) Real Property Acquisition. When real property must be acquired, 
the State must provide an assurance pursuant to Sec. 35.6105(b)(5) of 
this subpart. An Indian Tribe must provide an assurance pursuant to 
Sec. 35.6110(b)(2).
    (5) Provision of State cost share. The State must provide assurances 
for cost sharing pursuant to Sec. 35.6105(b)(2). Even if the political 
subdivision is providing the actual cost share, the State must guarantee 
payment of the cost share in the event of default by the political 
subdivision.
    (j) Cost-share conditions, which include:
    (1) An estimate of the response action cost (excluding EPA's 
indirect costs) that requires cost share;
    (2) The basis for arriving at this figure (See Sec. 35.6285(c) for 
credit provisions); and
    (3) The payment schedule as negotiated by the signatories, and 
consistent with either a lump-sum or incremental-payment option. Final 
payment must be made by completion of all activities in the site-
specific Statement of Work with the exception of any change orders and 
claims handled during reconciliation of the SSC;
    (k) Reconciliation provision, which states that the SSC remains in 
effect until the financial settlement of project costs and final 
reconciliation of response costs (including all change orders, claims, 
overpayments, reimbursements, etc.) ensure that both EPA and the State 
have satisfied the cost share requirement contained in section 104 of 
CERCLA, as amended. Overpayments in an SSC may not be used to meet the 
cost-sharing obligation at another site. Reimbursements for any 
overpayment will be made to the payer identified in the SSC.
    (l) Amendability of the SSC, which provides that:
    (1) Formal amendments are required when alterations to CERCLA-funded 
activities are necessary or when alterations impact the State's 
assurances pursuant to the National Contingency Plan and CERCLA, as 
amended. Such amendments must include a Statement of Work for the 
amendment as described in Sec. 35.6805(e) above;
    (2) Any change(s) in the SSC must be agreed to, in writing, by the 
signatories, except as provided elsewhere in the SSC, and must be 
reflected in all response agreements affected by the change(s);
    (m) List of Support Agency Cooperative Agreements that are also in 
place for the site;
    (n) Litigation, which describes EPA's right to bring an action 
against any party under section 106 of CERCLA to compel cleanup, or for 
cost recovery under section 107 of CERCLA.
    (o) Sanctions for failure to comply with SSC terms, which states 
that if the signatories fail to comply with the terms of the SSC, EPA 
may proceed under the provisions of section 104(d)(2) of CERCLA and may 
seek in the appropriate court of competent jurisdiction to enforce the 
SSC or to recover any funds advanced or any costs incurred due to a 
breach of the SSC. Other signatories to the SSC may seek remedies in the 
appropriate court of competent jurisdiction.
    (p) Site access. The State or political subdivision or Indian Tribe 
is expected to use its own authority to secure access to the site and 
adjacent properties, as well as all rights-of-way and easements 
necessary to complete the response actions undertaken pursuant to the 
SSC;
    (q) Joint inspection of the remedy. Following completion of the 
remedial action, the State and EPA will jointly inspect the project. The 
SSC must include a statement indicating the State's approval of the 
final remedial action report submitted by EPA.
    (r) Exclusion of third-party benefits, which states that the SSC is 
intended to benefit only the signatories of the SSC, and extends no 
benefit or right to any third party not a signatory to the SSC; and

[[Page 622]]

    (s) Any other provision deemed necessary by all parties to 
facilitate the response activities covered by the SSC.
    (t) State review. The State or Indian Tribe must review and comment 
on the response actions pursuant to the SSC. Unless otherwise stated in 
the SSC, all time frames for review must follow those prescribed in the 
NCP.
    (u) Responsible party activities, which states that if a Responsible 
Party takes over any activities at the site, the SSC will be modified or 
terminated, as appropriate.
    (v) Out-of-State or out-of-Indian Tribal jurisdiction transfers of 
CERCLA waste, which states that, unless otherwise provided for by EPA or 
a political subdivision, the State or Indian Tribe must provide the 
notification requirements described in Sec. 35.6120.



Sec. 35.6815  Administrative requirements.

    In addition to the requirements specified in Sec. 35.6805, the State 
and/or political subdivision must comply with the following:
    (a) Financial administration. The State and/or political subdivision 
must comply with the following requirements regarding financial 
administration:
    (1) Payment. The State may pay for its share of the costs of the 
response activities in cash or credit. As appropriate, specific credit 
provisions should be included in the SSC consistent with the 
requirements described in Sec. 35.6285(c) of this subpart. The State may 
not pay for its cost share using in-kind services, unless the State has 
entered into a support agency Cooperative Agreement with EPA. The use of 
the support agency Cooperative Agreement as a vehicle for providing cost 
share must be documented in the SSC. If the political subdivision agrees 
to provide all or part of the State's cost share pursuant to a political 
subdivision-lead Cooperative Agreement, the political subdivision may 
pay for those costs in cash or in-kind services under that agreement. 
The use of a political subdivision-lead Cooperative Agreement as a 
vehicle for providing cost share must also be documented in the SSC. The 
State or political subdivision must make payments during the course of 
the site-specific project and must complete payments by completion of 
activities in the site-specific Statement of Work. (See Sec. 35.6255 of 
this subpart for requirements concerning cost sharing under a support 
agency Cooperative Agreement.) The specific payment terms must be 
documented in the SSC pursuant to Sec. 35.6805 of this subpart.
    (2) Collection of amounts due. The State and/or political 
subdivision must comply with the requirements described in 40 CFR 
31.52(a) regarding collection of amounts due.
    (3) Failure to comply with negotiated payment terms. Failure to 
comply with negotiated payment terms may be construed as default by the 
State on its required assurances, even if the political subdivision is 
responsible for providing all or part of the cost share. (See 
Sec. 35.6805(i)(5) of this subpart.)
    (b) Personal Property. The State, Indian Tribe, or political 
subdivision is required to accept title. The following requirements 
apply to equipment used as all or part of the remedy:
    (1) Fixed in-place equipment. EPA no longer has an interest in fixed 
in-place equipment once the equipment is installed.
    (2) Equipment that is an integral part of services to individuals. 
EPA no longer has an interest in equipment that is an integral part of 
services to individuals, such as pipes, lines, or pumps providing 
hookups for homeowners on an existing water distribution system, once 
EPA certifies that the remedy is operational and functional.
    (c) Reports. The State and/or political subdivision or Indian Tribe 
must comply with the following requirements regarding reports:
    (1) EPA-lead. The nature and frequency of reports between EPA and 
the State or Indian Tribe will be specified in the SSC.
    (2) Political subdivision-lead. The political subdivision must 
submit to the State a copy of all reports which the political 
subdivision is required to submit to EPA in accordance with the 
requirements of its Cooperative Agreement. (See Sec. 35.6650 for 
requirements regarding quarterly progress reports.)
    (d) Records. The State and political subdivision or Indian Tribe 
must maintain records on a site-specific basis.

[[Page 623]]

The State and political subdivision or Indian Tribe must comply with the 
requirements regarding record retention described in Sec. 35.6705 and 
the requirements regarding record access described in Sec. 35.6710.



Sec. 35.6820  Conclusion of the SSC.

    In order to conclude the SSC, the signatories must:
    (a) Satisfactorily complete the response activities at the site and 
make all payments based upon project costs determined in 
Sec. 35.6805(j);
    (b) Produce a final accounting of all project costs, including 
change orders and outstanding contractor claims; and
    (c) Submit all State cost-share payments to EPA (see 
Sec. 35.6805(i)(5)), undertake responsibility for O&M, and, if 
applicable, accept interest in real property (see Sec. 35.6805(i)(4)).



    Subpart P--Financial Assistance for the National Estuary Program

    Authority: Sec. 320 of the Clean Water Act, as amended (33 U.S.C. 
1330).

    Source: 54 FR 40804, Oct. 3, 1989 (interim), unless otherwise noted.



Sec. 35.9000  Applicability.

    This subpart codifies policies and procedures for financial 
assistance awarded by the EPA to state, interstate, and regional water 
pollution control agencies and entities and other eligible agencies, 
institutions, organizations, and individuals for pollution abatement and 
control programs under the National Estuary Program (NEP). These 
provisions supplement the EPA general assistance regulations in 40 CFR 
parts 30 and 31.



Sec. 35.9005  Purpose.

    Section 320(g) of the Clean Water Act (CWA) authorizes assistance to 
eligible states, agencies, entities, institutions, organizations, and 
individuals for developing a comprehensive conservation and management 
plan (CCMP) for an estuary.



Sec. 35.9010  Definitions.

    Aggregate costs. The total cost of all research, surveys, studies, 
modeling, and other technical work completed by a Management Conference 
during a fiscal year to develop a Comprehensive Conservation and 
Management Plan for the estuary.
    Annual work plan. The plan, developed by the Management Conference 
each year, which documents projects to be undertaken during the upcoming 
year. The Annual Work Plan is developed within budgetary targets 
provided by EPA.
    Five-Year State/EPA Conference Agreement. Agreement negotiated among 
the States represented in a Management Conference and the EPA shortly 
after the Management Conference is convened. The agreement identifies 
milestones to be achieved during the term of the Management Conference.
    Management Conference. A Management Conference convened by the 
Administrator under Section 320 of the CWA for an estuary in the NEP.
    National Program Assistance Agreements. Assistance Agreements 
approved by the EPA Assistant Administrator for Water for work 
undertaken to accomplish broad NEP goals and objectives.
    Work Program. The Scope of Work of an assistance application, which 
identifies how and when the applicant will use funds to produce specific 
outputs.



Sec. 35.9015  Summary of annual process.

    (a) EPA considers various factors to allocate among the Management 
Conferences the funds requested in the President's budget for the NEP. 
Each year, the Director of the Office of Marine and Estuarine Protection 
issues budgetary targets for the NEP for each Management Conference. 
These targets are based upon negotiated Five-Year State/EPA Conference 
Agreements.
    (b) Using the budgetary targets provided by EPA, each Management 
Conference develops Annual Work Plans describing the work to be 
completed during the year and identifies individual projects to be 
funded for the completion of such work. Each applicant having a scope of 
work approved by the Management Conference completes a standard EPA 
application, including a proposed work program. After the applicant 
submits an application, the Regional Administrator reviews it and, if it 
meets applicable requirements, approves the application and agrees to

[[Page 624]]

make an award when funds are available. The Regional Administrator 
awards assistance from funds appropriated by Congress for that purpose.
    (c) The recipient conducts activities according to the approved 
application and assistance award. The Regional Administrator evaluates 
recipient performance to ensure compliance with all conditions of the 
assistance award.
    (d) The Regional Administrator may use funds not awarded to an 
applicant to supplement awards to other recipients who submit a score of 
work approved by the management conference for NEP funds.
    (e) The EPA Assistant Administrator for Water may approve National 
Program awards as provided in Sec. 35.9070.



Sec. 35.9020  Planning targets.

    The EPA Assistant Administrator for Water develops planning targets 
each year to help each Management Conference develop an Annual Work 
Plan. These targets are broad budgetary goals for total expenditures by 
each estuary program and are directly related to the activities that are 
to be carried out by each Management Conference in that year as 
specified in the Five-Year State/EPA Conference Agreement. The planning 
targets also are based on the Director's evaluation of the ability of 
each Management Conference to use appropriated funds effectively.



Sec. 35.9030  Work program.

    The work program is part of the application for financial assistance 
and becomes part of the award document. It is part of the basis for an 
award decision and the basis for management and evaluation of 
performance under an assistance award. The work program must specify the 
level of effort and amount and source of funding estimated to be needed 
for each identified activity, the outputs committed for each activity, 
and the schedule for delivery of outputs.



Sec. 35.9035  Budget period.

    An applicant may choose its budget period in consultation with and 
subject to the approval of the Regional Administrator.



Sec. 35.9040  Application for assistance.

    Each applicant should submit a complete application at least 60 days 
before the beginning of the budget period. In addition to meeting 
applicable requirements contained in 40 CFR part 30 or 31, a complete 
application must contain a discussion of performance to date under an 
existing award, the proposed work program, and a list of all applicable 
EPA-approved State strategies and program plans, with a statement 
certifying that the proposed work program is consistent with these 
elements. The annual workplan developed and approved by the management 
conference each fiscal year must demonstrate that non-Federal sources 
provide at least 25 percent of the aggregate costs of research, surveys, 
studies, modeling, and other technical work necessary for the 
development of a CCMP for the estuary. Each application must contain a 
copy of the Annual Work Plan as specified in Sec. 35.9065(c) (2) and (3) 
for the current Federal fiscal year. The funding table in the workplan 
must demonstrate that the 25 percent match requirements is being met, 
and the workplan table of project status must show the sources of funds 
supporting each project.



Sec. 35.9045  EPA action on application.

    The Regional Administrator will review each completed application 
and should approve, conditionally approve, or disapprove the application 
within 60 days of receipt. When funds are available, the Regional 
Administrator will award assistance based on an approved or 
conditionally approved application. For a continuation award made after 
the beginning of the approved budget period, EPA will reimburse the 
applicant for allowable costs incurred from the beginning of the budget 
period, provided that such costs are contained in the approved 
application and that the application was submitted before the expiration 
of the prior budget period.
    (a) Approval. The Regional Administrator will approve the 
application only if it satisfies the requirements of CWA section 320; 
the terms, conditions, and limitations of this subpart; and the 
applicable provisions of 40 CFR parts 30, 31, and other EPA assistance 
regulations. The Regional Administrator

[[Page 625]]

must also determine that the proposed outputs are consistent with EPA 
guidance or otherwise demonstrated to be necessary and appropriate; and 
that achievement of the proposed outputs is feasible, considering the 
applicant's past performance, program authority, organization, 
resources, and procedures.
    (b) Conditional approval. The Regional Administrator may 
conditionally approve the application after consulting with the 
applicant if only minor changes are required. The award will include the 
conditions the applicant must meet to secure final approval and the date 
by which those conditions must be met.
    (c) Disapproval. If the application cannot be approved or 
conditionally approved, the Regional Administrator will negotiate with 
the applicant to change the output commitments, reduce the assistance 
amount, or make any other changes necessary for approval. If negotiation 
fails, the Regional Administrator will disapprove the application in 
writing.



Sec. 35.9050  Assistance amount.

    (a) Determining the assistant amount. In determining the amount of 
assistance to an applicant, the Regional Administrator will consider the 
Management Conference planning target, the extent to which the 
applicant's Work Program is consistent with EPA guidance, and the 
anticipated cost of the applicant's program relative to the proposed 
outputs.
    (b) Reduction of assistance amount. If the Regional Administrator 
determines that the proposed outputs do not justify the level of funding 
requested, he will reduce the assistance amount. If the evaluation 
indicates that the proposed outputs are not consistent with the 
priorities contained in EPA guidance, the Regional Administrator may 
reduce the assistance amount.



Sec. 35.9055  Evaluation of recipient performance.

    The Regional Administrator will oversee each recipient's performance 
under an assistance agreement. In consultation with the applicant, the 
Regional Administrator will develop a process for evaluating the 
recipient's performance. The Regional Administrator will include the 
schedule for evaluation in the assistance agreement and will evaluate 
recipient performance and progress toward completing the outputs in the 
approved work program according to the schedule. The Regional 
Administrator will provide the evaluation findings to the recipient and 
will include these findings in the official assistance file. If the 
evaluation reveals that the recipient is not achieving one or more of 
the conditions of the assistance agreement, the Regional Administrator 
will attempt to resolve the situation through negotiation. If agreement 
is not reached, the Regional Administrator may impose sanctions under 
the applicable provisions of 40 CFR part 30 or 31.



Sec. 35.9060  Maximum Federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work program costs for a particular application provided that 
non-Federal sources provide at least 25 percent of the aggregate costs 
of research, surveys, studies, modeling, and other technical work 
necessary for the development of a comprehensive conservation and 
management plan for the estuary as specified in the estuary Annual Work 
Plan for each fiscal year.



Sec. 35.9065  Limitations.

    (a) Management conferences. The Regional Administrator will not 
award funds pursuant to CWA section 320(g) to any applicant unless and 
until the scope of work and overall budget have been approved by the 
Management Conference of the estuary for which the work is proposed.
    (b) Elements of annual workplans. Annual Work Plans to be prepared 
by estuary Management Conferences must be reviewed by the Regional 
Administrator before final ratification by the Management Conference and 
must include the following elements:
    (1) Introduction. A discussion of achievements in the estuary, a 
summary of activities undertaken in the past year to further each of the 
seven purposes of a Management Conference specified in section 320(b) of 
the CWA, the major emphases for activity in the

[[Page 626]]

upcoming year, and a schedule of milestones to be reached during the 
year.
    (2) Funding sources. A table of fund sources for activities in the 
new year, including a description of the sources and types (e.g., in-
kind contributions to be performed by the applicant) of funds comprising 
the contribution by applicants or third parties, and the source and type 
of any other non-Federal funds or contributions.
    (3) Projects. A description of each project to be undertaken, a 
summary table of project status listing all activities, the responsible 
organization or individual, the products expected from each project, 
approximate schedules, budgets, and the source and type of the non-
Federal 25 percent minimum cost share of the aggregate costs of 
research, surveys, studies, modeling, and other technical work necessary 
for the development of a comprehensive conservation and management plan 
for an estuary.

[54 FR 40804, Oct. 3, 1989, as amended at 59 FR 61126, Nov. 29, 1994]



Sec. 35.9070  National program assistance agreements.

    The Assistant Administrator for Water may approve the award of NEP 
funds for work that has broad applicability to estuaries of national 
significance. These awards shall be deemed to be consistent with Annual 
Work Plans and Five-Year State/EPA Conference Agreements approved by 
individual management conferences. The amount of a national program 
award shall not exceed 75 percent of the approved work program costs 
provided the non-Federal share of such costs is provided from non-
Federal sources.



          Subpart Q--General Assistance Grants to Indian Tribes

     Source: 58 FR 63878, Dec. 2, 1993, unless otherwise noted.



Sec. 35.10000  Authority.

    This subpart is issued under the Indian Environmental General 
Assistance Program Act of 1992 (``the Act''), 42 U.S.C. 4368b.



Sec. 35.10005  Purpose and scope.

    (a) This subpart codifies requirements for administering general 
assistance grants to Indian tribal governments and intertribal consortia 
to build capacity to administer environmental regulatory programs on 
Indian lands.
    (b) 40 CFR part 31, ``Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments,'' establishes 
consistency and uniformity among Federal agencies in the administration 
of grants and cooperative agreements to State, local, and Indian Tribal 
governments. This subpart supplements the requirements contained in 40 
CFR part 31, including its provisions for accounting, auditing, 
evaluating, and reviewing any programs or activities funded in whole or 
in part by an EPA grant.



Sec. 35.10010  Definitions.

    (a) Indian tribal government. Any Indian tribe, band, nation, or 
other organized group or community, including any Alaska Native village 
or regional or village corporation (as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act (43 U.S.C. 1601, et 
seq.)), which is recognized by the United States Department of the 
Interior as eligible for the special services provided by the United 
States to Indians because of their status as Indians.
    (b) Intertribal Consortia or Intertribal Consortium. A partnership 
between two or more Indian tribal governments authorized by the 
governing bodies of those tribes to apply for and receive assistance 
under this program.
    (c) General assistance. Financial assistance provided under this 
program to Indian tribal governments or to an intertribal consortia or 
consortium to cover the costs of planning, developing, and establishing 
the capability to implement environmental protection programs on Indian 
lands. General assistance may be provided through either a grant or a 
cooperative agreement in accordance with the Federal Grant and 
Cooperative Agreement Act, 31 U.S.C. 6301 et seq.

[[Page 627]]



Sec. 35.10015  Eligible recipients.

    The following entities are eligible to receive financial assistance 
under this program:
    (a) An Indian tribal government.
    (b) An intertribal consortium or consortia.



Sec. 35.10020  Eligible activities.

    (a) Activities eligible for funding under this program are those for 
planning, developing, and establishing capability to implement 
environmental protection programs, including solid and hazardous waste 
programs.
    (b) Alaska Native village corporations and regional corporations are 
not eligible to receive general assistance for capacity-building to 
develop regulatory programs.



Sec. 35.10025  Limitations.

    Financial assistance provided under this program is subject to the 
following terms and limitations:
    (a) No initial grant provided under this program for a fiscal year 
shall be for an amount less than $75,000. A grant amendment may be for 
an amount less than $75,000.
    (b) No single grant awarded under this program may be for an amount 
exceeding ten percent of total annual funds appropriated under section 
11(h) of the Act.
    (c) Awards made pursuant to this section shall remain available 
until expended within the term of the award. The term of an award may 
exceed one year, but may not exceed four years.
    (d) No award under this program shall result in reduction of total 
EPA grants for environmental programs to the recipient. Receipt of funds 
under this program shall not preclude an eligible Indian tribal 
government or intertribal consortium from receiving individual program 
or project-specific grants or cooperative agreements. Funds provided 
under this program may be used to supplement other funds provided by EPA 
through individual program or project-specific grants or cooperative 
agreements.



Sec. 35.10030  Grant management.

    Procedures for accounting, auditing, evaluating, and reviewing any 
programs or activities funded in whole or in part for a general 
assistance grant under this program shall be governed by regulations at 
40 CFR part 31.



Sec. 35.10035  Procurement under general assistance agreements.

    Procurement of goods or services by recipients funded under this 
program shall be governed by the following requirements:
    (a) Competition. To the extent permitted by 25 U.S.C. 450e(b):
    (1) The recipient must provide maximum open and free competition.
    (2) Recipients must not unduly restrict or eliminate competition.
    (b) Documentation. Recipients must document all procurement 
activities with written records that furnish reasons for decisions.
    (c) Cost.
    (1) The recipient must determine that all costs are reasonable.
    (2) The recipient must comply with the cost and price analysis 
requirements in 40 CFR 31.36(f).
    (d) Debarment. Recipients and contractors must not make any contract 
at any time to anyone who is on the ``List of Parties Excluded from 
Federal Procurement or Nonprocurement Programs.''
    (e) Recipient Responsibility.
    (1) The recipient is responsible for the settlement and satisfactory 
completion of all contractual and administrative issues arising out of 
contracts entered into under a grant.
    (2) The recipient must ensure that all contractors perform in 
accordance with the terms and conditions of the contract.
    (f) Responsible contractors. The recipient shall award contracts 
only to responsible contractors that possess the potential ability to 
perform successfully under the terms and conditions of a proposed 
contract.
    (g) Disadvantaged business enterprises. The recipient shall comply 
with the ``Small, Minority, Women's and Labor Surplus Area Business'' 
requirements in 40 CFR 31.36(e).
    (h) Illegal contracts. Recipients may not award cost-plus-
percentage-of-cost or percentage-of-construction-cost contracts.

[[Page 628]]

    (i) Contract provisions. The recipient must include the following 
provisions in each contract:
    (1) Statement of work;
    (2) Schedule for performance;
    (3) Due dates for deliverables;
    (4) Total cost of the contract;
    (5) Payment provisions; and
    (6) The following clauses from 40 CFR 33.1030, ``Model contract 
clauses'':
    (i) Supersession;
    (ii) Privity of Contract;
    (iii) Termination;
    (iv) Remedies;
    (v) Audit, Access to Records;
    (vi) Covenant Against Contingent Fees;
    (vii) Gratuities;
    (viii) Responsibility of the Contractor; and
    (ix) Final Payment.
    (j) Subcontracting. A contractor must comply with the following 
provisions in its award of subcontracts (these requirements do not apply 
to subcontractors for the supply of materials to produce equipment, 
materials, and subcontracts for catalog, off-the-shelf, or manufactured 
items):
    (1) Section 35.10035(b) Documentation;
    (2) Section 35.10035(c) Cost;
    (3) Section 35.10035(d) Debarment;
    (4) Section 35.10035(f) Responsible contractor;
    (5) Section 35.10035(g) Disadvantaged business enterprises;
    (6) Section 35.10035(h) Illegal contracts; and
    (7) Section 35.10035(i) Contract provisions.
    (k) Bid protests. The recipient must establish a procedure for 
resolving protests which complies with the provisions of 40 CFR 
31.36(b)(12).
    (l) Procurement. Recipients shall not divide any procurements into 
smaller parts to get under any dollar limit.
    (1) If the aggregate amount of the purchase is $1000 or less, the 
recipient may make the purchase as long as the recipient demonstrates 
that the price is reasonable.
    (2) If the aggregate amount of the proposed contract is over $1000 
but less than $25,000, the recipient must obtain and document oral or 
written price quotations from two or more qualified sources.
    (3) If the aggregate amount of the proposed contract is $25,000 and 
over but less than $50,000, the recipient must:
    (i) Solicit written bids/proposals from two or more sources who are 
willing and able to do the work;
    (ii) Provide to potential sources a clear and accurate description 
of the work to be performed;
    (iii) Provide the criteria the recipient will use to evaluate bids/
proposals;
    (iv) Objectively evaluate all bids/proposals submitted; and
    (v) Notify all unsuccessful bidders/proposers.
    (4) If the aggregate amount of the proposed contract is $50,000 or 
over, the recipient must follow the procurement rules in 40 CFR 31.36.
    (m) Non-competitive procurements. The recipient shall comply with 
the non-competitive procurement requirements in 40 CFR 31.36(d)(4).



PART 39--LOAN GUARANTEES FOR CONSTRUCTION OF TREATMENT WORKS--Table of Contents




Sec.
39.100  Purpose.
39.105  Definitions.
39.110  Application.
39.115  Conditions of loan guarantee.
39.120  Limitation on assistance.
39.125  Determination of eligibility for assistance and issuance of 
          guarantee.
39.130  Determination of reasonable rates.
39.135  Loan terms.
39.140  Loan proceeds.
39.145  Loan payments by borrower.
39.150  Defaults and remedies.

    Authority: Pub. L. 94-558, Sec. 213, Federal Water Pollution Control 
Act, as amended (86 Stat. 816 et seq. (33 U.S.C. 1281 et seq.) as 
amended).

    Source: 42 FR 25666, May 18, 1977, unless otherwise noted.



Sec. 39.100  Purpose.

    This part implements section 213 of the Federal Water Pollution 
Control Act Amendments of 1972, as amended, by establishing policies and 
procedures to ensure that inability to borrow necessary funds from other 
sources on reasonable terms does not prevent the construction of any 
waste water treatment works for which a grant has been, or will be, 
awarded in compliance with

[[Page 629]]

the Act. It provides for the guarantee by the Administrator of full and 
timely payment of principal and interest on any obligation of the State, 
municipality, or intermunicipal or interstate agency issued directly and 
exclusively to the Federal Financing Bank to finance the local share of 
the costs of any such project.



Sec. 39.105  Definitions.

    The following words and terms shall have the meaning set forth 
below:
    (a) Act. The Federal Water Pollution Control Act Amendments of 1972, 
as amended (Pub. L. 92-500, 33 U.S.C. 1281 et seq.).
    (b) Bank. The Federal Financing Bank established pursuant to the 
Federal Financing Bank Act of 1973 (12 U.S.C. 2281 et seq.).
    (c) Guaranteed Loan Program. The program established pursuant to 
Pub. L. 94-558 which amended the Act by adding section 213.
    (d) Loan agreement. A written agreement between the Bank and the 
guaranteed borrower stating the terms of the loan.
    (e) Loan guarantee agreement. A written agreement between EPA and 
the guaranteed borrower stating the terms of the loan guarantee.
    (f) Local share. The amount of the total grant eligible and 
allowable project costs which a public body is obligated to pay under 
the grant.
    (g) Note. An evidence of the debt, including a bond, obligation to 
pay, or other evidence of indebtedness where appropriate.
    (h) Public body. A State, interstate agency, a municipality, or an 
intermunicipal agency, as defined below:
    (1) State. A State, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Trust 
Territory of the Pacific Islands.
    (2) Interstate agency. An agency of two or more States established 
by or pursuant to an agreement or compact approved by the Congress, or 
any other agency of two or more States, having substantial powers or 
duties pertaining to the control of water pollution.
    (3) Municipality. A city, town, borough, county, parish, district, 
association, or other public body (including an intermunicipal agency of 
two or more of the foregoing entities) created by or pursuant to State 
law, or an Indian Tribe or an authorized Indian tribal organization, 
having jurisdiction over disposal of sewage, industrial wastes, or other 
wastes, or a designated and approved management agency under section 208 
of the Act. This definition excludes a special district, such as a 
school district, which does not have as one of its principal 
responsibilities the treatment, transport, or disposal of liquid wastes.
    (i) Reasonable terms. Rates determined by the Secretary of the 
Treasury with relationship to the current average yield on outstanding 
marketable obligations of municipalities of comparable maturity.



Sec. 39.110  Application.

    (a) Who may apply. A public body which has applied for a grant under 
Title II of the Act (including grantees whose projects are eligible for 
reimbursement under section 206 of that title) or which has committed 
itself to finance the local share of any project(s) for which a grant 
has been awarded, or for which an application is being processed, may 
apply through the State agency to the appropriate Regional Administrator 
for a loan and the commitment to guarantee such loan to finance the 
local share of such project.
    (b) Financing. Applications for loan guarantees will be limited to:
    (1) Financing that portion of the local share for which permanent 
financing has not been arranged.
    (2) Refinancing that portion of the local share of those projects on 
which construction has not been completed and for which the public body 
initially held a public solicitation on a bond issue, received no bids, 
and subsequently accepted or negotiated financing at interest rates 
greater than 10 percent.
    (c) Application requirements. The application shall include 
documentation of the following:
    (1) Inability to obtain necessary financing. The applicant shall 
document that it is unable to obtain on reasonable terms as defined in 
Sec. 39.105(i) sufficient credit to finance the local share of the

[[Page 630]]

project(s). Such documentation shall include:
    (i) The results of any public solicitation for bids for obligations 
to finance the local share or (ii) a certification, acceptable to the 
Administrator, from a municipal bond underwriter(s), which submitted or 
might normally have submitted a bid for the obligations. An applicant 
with an obligation to pay the local share not in excess of $250,000 may 
obtain certification from two or more local or regional banks to meet 
paragraph (c)(1)(ii) of this section. An applicant representing 
communities with a population of 10,000 or less must also submit a 
written statement from an authorized representative of the Farmers Home 
Administration that grants, loans, or loan guarantees are not available 
from Farmers Home Administration in an adequate amount or within a 
reasonable time, as determined by the Administrator.
    (2) Ability to repay. The application for a loan guarantee shall be 
accompanied by an official statement intended to provide EPA with the 
information needed to reach an informed judgment as to whether there is 
reasonable assurance of repayment. The official statement must conform 
to the guidelines for such statement which are available to applicants 
from the EPA regional office upon request.
    (3) Legal authority of applicant. The application shall be 
accompanied by a legal opinion establishing that the applicant has legal 
authority to obligate itself for payment of the local share, to comply 
with the loan conditions, and to issue the obligations, and that the 
obligations will be legal and binding obligations.
    (4) Assurances. The application shall be accompanied by assurances 
set forth in an ordinance or other evidence of authority acceptable to 
the Administrator that it can and will comply with all of the conditions 
set forth in Sec. 39.115.
    (d) Fees. The following fees will be charged in order to make the 
program self-sustaining. These fees may be revised from time to time as 
determined by the Administrator.
    (1) Application processing. EPA will charge a non-refundable minimum 
fee of $1,000 or \1/8\ of one percent of the loan amount, whichever is 
greater, but not to exceed $25,000 for processing applications. This fee 
will be submitted with the application and will be retained by the EPA 
whether or not a loan is consummated.
    (2) Fee for issuance of a commitment to guarantee. A fee will be 
charged for the issuance of a commitment to guarantee a loan. This fee 
will be \1/2\ of 1 percent of the principal amount of the loan, and 
shall be placed in a contingency reserve to offset defaults. This fee is 
contingent upon the loan being obtained by the applicant and is payable 
within 30 days of the date of loan approval.
    (e) Format. The Administrator may, from time to time, prescribe a 
form or format for the submission of the application or any portion 
thereof.



Sec. 39.115  Conditions of loan guarantee.

    Any loan guarantee made pursuant to this part shall be subject to 
the following conditions:
    (a) Step 1 or Step 2. Each public body applying for a loan guarantee 
for the local share of Step 1 or Step 2 costs must assure that:
    (1) It will repay the loan using all local resources legally 
available; and
    (2) Any funds due to the public body from the amounts appropriated 
under section 206 of the Act may be used if such use is necessary for 
repayment.
    (b) Step 3. Each public body applying for a loan for the local share 
of Step 3 costs must assure that:
    (1) It will repay the loan using all local resources legally 
available and, if necessary, (i) all or any portion of the funds 
retained by it under section 204(b)(3) of the Act, and (ii) any funds 
due to such grantee from the amounts appropriated under section 206 of 
the Act;
    (2) The facilities are maintained in good repair and operating 
condition during the period in which the notes or the obligations 
financed by the Bank are outstanding;
    (3) Adequate insurance and bonding are maintained to protect the 
guarantor;
    (4) Financial reports and records necessary to reflect the planned 
and actual receipt of revenues for repayment are maintained and 
preserved until 3 years after the notes or the obligations

[[Page 631]]

financed by the Bank have been retired.
    (5) Revenue plans adequate to assure repayment of principal and 
interest of the notes or the obligations financed by the Bank are 
adopted; and
    (6) The Administrator is promptly notified whenever it appears that 
projected annual revenues will be insufficient to meet payments for 
principal, interest, and operating and maintenance costs. Such 
notification shall include a description of the steps being taken to 
remedy the problem.
    (c) Other covenants. Among other covenants made by the public body 
in the loan guarantee are the following;
    (1) Application of loan proceeds. The loan proceeds shall only be 
applied to the payment of costs associated with the project for which 
EPA has awarded grant assistance in accordance with Sec. 39.140.
    (2) Payment. The public body covenants that if amounts adequate for 
the payment of principal and interest are not available when due and 
payable, appropriate steps will be taken to levy sufficient additional 
taxes, fees, or charges and to make such payments in a timely manner.
    (3) Accounts and reports. The public body shall keep complete and 
accurate books, records, and accounts relating to the loan, the loan 
guarantee, and the funds and accounts used to pay the amounts due on the 
loan. Such books, records, and accounts shall be subject to inspection 
by the Administrator or the Comptroller General of the United States at 
reasonable times.
    (4) Status of other encumbrances. The public body will not on or 
after the date of execution of the loan guarantee by EPA, create or 
suffer to be created any lien or charge, which would constitute a lien 
prior to the lien created to secure the loan. Any bonded indebtedness or 
liens created by the public body on or after the date of execution of 
the loan guarantee by EPA and associated with the treatment works being 
constructed with Federal grant assistance may, at the discretion of the 
Administrator, be on a parity with the lien of the loan guaranteed by 
the Administrator.
    (d) Enforcement. The public body agrees to the enforcement of the 
foregoing conditions by the Administrator in a court of appropriate 
jurisdiction pursuant to any of the remedies provided for under 
Sec. 39.150, Defaults and remedies, in order to avert an Event of 
Default.



Sec. 39.120  Limitation on assistance.

    The amount of any grant, loan, loan guarantee, or other assistance 
available from another Federal agency, a State, or other third parties 
on reasonable terms shall be deducted from the local share amount before 
the loan guarantee amount is determined.



Sec. 39.125  Determination of eligibility for assistance and issuance of guarantee.

    (a) The Administrator shall make the following determinations before 
issuing a loan guarantee:
    (1) The project for which the loan guarantee is requested is 
eligible for grant assistance under Title II of the Act;
    (2) The applicant is unable to obtain, on reasonable terms, 
sufficient credit to finance the local share without such a loan 
guarantee; and
    (3) There is reasonable assurance that the applicant will be able to 
repay the loan or obligation to the Bank.
    (b) If the application is approved, the Administrator will issue the 
loan guarantee and, subsequent to grant award, will request issuance by 
the Bank.
    (c) If the loan application is disapproved, such disapproval shall 
be final and conclusive unless appealed within 30 days after receipt of 
the notice of disapproval pursuant to subpart J, Disputes, of the 
general grant regulations (40 CFR 30.1100 et seq.).



Sec. 39.130  Determination of reasonable rates.

    The Secretary of the Treasury in accordance with the Act shall make 
a determination of whether financing is available at reasonable rates.



Sec. 39.135  Loan terms.

    (a) Interest rates. The interest rate(s), to be charged for each 
loan shall be determined by the Secretary of the Treasury in accordance 
with section 6(b) of the Federal Financing Bank Act of 1973.

[[Page 632]]

    (b) Repayment period. The repayment period for any obligation 
guaranteed by the Environmental Protection Agency shall be for a 
reasonable term not to exceed the useful life of the project or forty 
years whichever is less.



Sec. 39.140  Loan proceeds.

    The loan proceeds shall be applied solely to pay costs associated 
with the construction of the treatment works for which EPA has awarded a 
grant. Loan proceeds may be dispensed in a lump sum upon execution of 
the loan agreement, or drawdowns under the loan agreement may be made 
pursuant to a schedule or requests submitted to the Bank by the 
borrower. Any loan proceeds or drawdown requests which are paid in 
advance of the current need for funds to pay costs associated with the 
EPA grant will be placed by the borrower in investments approved by the 
Bank under the loan agreement until such time as the proceeds are 
applied to such costs.



Sec. 39.145  Loan payments by borrower.

    The borrower will submit his payments of principal and interest on 
the loan directly to the Bank in accordance with the loan agreement. A 
late payment penalty of 1 percent per month of the payment amount due 
shall be charged pursuant to the loan agreement and the provisions of 
the loan guarantee agreement in the event any payment of principal and 
interest is not paid when due.



Sec. 39.150  Defaults and remedies.

    (a) Each of the following events shall be defined as an ``Event of 
Default'':
    (1) Default by the public body in the payment of any Principal 
Installment, if any, on any loan guaranteed by the Administrator when 
due;
    (2) Default by the public body in the payment of any installment of 
interest on the loan when due; and
    (3) Failure or refusal by the public body to comply with section 213 
of the Act, or default in the performance or observance of any other of 
the covenants, agreements, or conditions contained in the loan 
agreement, or loan guarantee agreement, where such failure, refusal or 
default shall continue for a period of 45 days after written notice 
thereof is issued by the Administrator.
    (b) The loan agreement and guarantee shall provide that upon the 
happening and continuance of any event described in paragraph (a) of 
this section, the Administrator may proceed on behalf of the 
Environmental Protection Agency and the United States to protect and 
enforce its rights and the rights of the Federal Financing Bank by such 
of the following remedies as the Administrator being advised by counsel, 
shall deem most effectual:
    (1) Enforce by mandamus or other suit, action or proceedings at law 
or in equity all rights of the Administrator including the rights to 
require the public body to enforce, collect and receive taxes, fees, or 
charges adequate to carry out the covenant or payment of principal and 
interest when due, and to require the public body to carry out any other 
covenant or agreement with the Administrator to perform its duties under 
the Act, these regulations and the loan agreement and loan guarantee 
agreement;
    (2) Bring suit upon the loan;
    (3) Require the public body by action or suit to account as if it 
were the trustee of an express trust for the holders of the evidence of 
indebtedness of the loan;
    (4) Enjoin by action or suit any acts or things which may be 
unlawful or in violation of the rights of the Administrator or the Bank;
    (5) Declare all remaining payments of principal and interest on the 
loan due and payable, and, if all default shall be made good, then, to 
annul such declaration and its consequences; and
    (6) In the event that all the remaining principal and interest on 
the loan be declared due and payable, apply to a court having 
jurisdiction for other appropriate administrative and judicial relief.



PART 40--RESEARCH AND DEMONSTRATION GRANTS--Table of Contents




Sec.
40.100  Purpose of regulation.
40.105  Applicability and scope.
40.110  Authority.
40.115  Definitions.
40.115-1  Construction.
40.115-2  Intermunicipal agency.

[[Page 633]]

40.115-3  Interstate agency.
40.115-4  Municipality.
40.115-5  Person.
40.115-6  State.
40.120  Publication of EPA research objectives.
40.125  Grant limitations.
40.125-1  Limitations on duration.
40.125-2  Limitations on assistance.
40.130  Eligibility.
40.135  Application.
40.135-1  Preapplication coordination.
40.135-2  Application requirements.
40.140  Criteria for award.
40.140-1  All applications.
40.140-2  [Reserved]
40.140-3  Federal Water Pollution Control Act.
40.145  Supplemental grant conditions.
40.145-1   Resource Conservation and Recovery Act.
40.145-2  Federal Water Pollution Control Act.
40.145-3  Projects involving construction.
40.150  Evaluation of applications.
40.155  Availability of information.
40.160  Reports.
40.160-1  Progress reports.
40.160-2  Financial status report.
40.160-3  Reporting of inventions.
40.160-4  Equipment report.
40.160-5  Final report.
40.165  Continuation grants.

    Authority: Cited in Sec. 40.110.

    Source: 38 FR 12784, May 15, 1973, unless otherwise noted.



Sec. 40.100   Purpose of regulation.

    These provisions establish and codify policies and procedures 
governing the award of research and demonstration grants by the 
Environmental Protection Agency.



Sec. 40.105   Applicability and scope.

    This part establishes mandatory policies and procedures for all EPA 
research and demonstration grants. The provisions of this part 
supplement the EPA general grant regulations and procedures (40 CFR part 
30). Accordingly, all EPA research and demonstration grants are awarded 
subject to the EPA interim general grant regulations and procedures (40 
CFR part 30) and to the applicable provisions of this part 40.



Sec. 40.110   Authority.

    EPA research and demonstration grants are authorized under the 
following statutes:
    (a) The Clean Air Act, as amended, 42 U.S.C. 1857 et seq.
    (1) Section 103 (42 U.S.C. 1857b) authorizes grants for research and 
demonstration projects relating to the causes, effects, extent, 
prevention, and control of air pollution.
    (2) Section 104 (42 U.S.C. 1857b-1) authorizes grants for research 
and development of new and improved methods for the prevention and 
control of air pollution resulting from the combustion of fuels.
    (b) The Federal Water Pollution Control Act, as amended, Public Law 
92-500.
    (1) Section 104(b) (33 U.S.C. 1254(b)) authorizes grants for 
research and demonstration projects relating to the causes, effects, 
extent, prevention, reduction, and elimination of water pollution.
    (2) Section 104(h) (33 U.S.C. 1254(h)) authorizes grants for 
research and development of new and improved methods for the prevention, 
removal, reduction, and elimination of pollution in lakes, including the 
undesirable effects of nutrients and vegetation, and for construction of 
publicly owned research facilities for such purpose.
    (3) Section 104(i) (33 U.S.C. 1254(i)) authorizes grants for 
research, studies, experiments, and demonstrations relative to the 
removal of oil from any waters and for the prevention, control, and 
elimination of oil and hazardous substances pollution.
    (4) Section 104(r) (33 U.S.C. 1254(r)) authorized grants for the 
conduct of basic research into the structure and function of freshwater 
aquatic ecosystems, and to improve understanding of the ecological 
characteristics necessary to the maintenance of the chemical, physical, 
and biological integrity of freshwater aquatic ecosystems.
    (5) Section 104(s) (33 U.S.C. (s)) authorizes grants to conduct and 
report on interdisciplinary studies on river systems, including 
hydrology, biology, ecology, economics, the relationship between river 
uses and land uses, and the effects of development within river basins 
on river systems and on the value of water resources and water-related 
activities.
    (6) Section 105(a) (33 U.S.C. 1255(a)) authorizes grants for 
research and demonstration of new or improved

[[Page 634]]

methods for preventing, reducing, and eliminating the discharge into any 
waters of pollutants from sewers which carry storm water or both storm 
water and pollutants; and for the demonstration of advanced waste 
treatment and water purification methods (including the temporary use of 
new or improved chemical additives which provide substantial immediate 
improvement to existing treatment processes), or new or improved methods 
of joint treatment systems for municipal and industrial wastes.
    (7) Section 105(b) (33 U.S.C. 1255(b)) authorizes grants for 
demonstrating, in river basins or portions thereof, advanced treatment 
and environmental enhancement techniques to control pollution from all 
sources, within such basin or portions thereof, including nonpoint 
sources, together with in-stream water quality improvement techniques.
    (8) Section 105(c) (33 U.S.C. 1255(c)) authorizes grants for 
research and demonstration projects for prevention of pollution of any 
waters by industry including, but not limited to, the prevention, 
reduction, and elimination of the discharge of pollutants.
    (9) Section 105(e)(1) (33 U.S.C. 1255(e)(1)) authorizes grants for 
research and demonstration projects with respect to new and improved 
methods of preventing, reducing, and eliminating pollution from 
agriculture.
    (10) Section 105(e)(2) (33 U.S.C. 1255(e)(2)) authorizes grants for 
demonstration projects with respect to new and improved methods of 
preventing, reducing, storing, collecting, treating, or otherwise 
eliminating pollution from sewage in rural and other areas where 
collection of sewage in conventional, communitywide sewage collection 
systems is impractical, uneconomical, or otherwise infeasible, or where 
soil conditions or other factors preclude the use of septic tank and 
drainage field systems.
    (11) Section 107 (33 U.S.C. 1257) authorizes grants for projects to 
demonstrate comprehensive approaches to the elimination or control of 
acid or other mine water pollution resulting from active or abandoned 
mining operations and other environmental pollution affecting water 
quality within all or part of a watershed or river basin, including 
siltation from surface mining.
    (12) Section 108 (33 U.S.C. 1258) authorizes grants for projects to 
demonstrate new methods and techniques, and to develop preliminary plans 
for the elimination or control of pollution within all or any part of 
the watersheds of the Great Lakes.
    (13) Section 113 (33 U.S.C. 1263) authorizes grants for projects to 
demonstrate methods to provide for central community facilities for safe 
water and elimination or control of pollution in those native villages 
of Alaska without such facilities.
    (c) The Public Health Service Act, as amended, 42 U.S.C. 241 et seq.
    (1) Section 301 (42 U.S.C. 241, 242b, and 246) authorizes grants for 
research relating to the human and environmental effects of radiation.
    (2) [Reserved]
    (d) The Solid Waste Disposal Act, as amended, by the Resource 
Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.).
    (1) Section 8001 (42 U.S.C. 6981) authorizes grants for research and 
demonstration projects relating to solid waste.
    (2) Section 8004 (42 U.S.C. 6984) authorizes grants for 
demonstration of new or improved technologies for resource recovery.
    (3) Section 8005 (42 U.S.C. 6985) authorizes grants to conduct 
special studies and demonstration projects on recovery of useful energy 
and materials.
    (4) Section 8006 (42 U.S.C. 6986) authorizes grants for the 
demonstration of resource recovery system or for the construction of new 
or improved solid waste disposal facilities.
    (e) The Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended, Public Law 92-516.
    (1) Section 20 authorizes grants for research in the pesticides 
areas with priority given to the development of biologically integrated 
alternatives for pest control.
    (2) [Reserved]
    (f) The Grant Act, 42 U.S.C. 1891 et seq., authorizes grants for 
basic scientific research.

[38 FR 12784, May 15, 1973, as amended at 42 FR 56056, Oct. 20, 1977]

[[Page 635]]



Sec. 40.115   Definitions.

    The statutes identified in Sec. 40.110 contain definitions which are 
not all repeated here. The following terms shall have the meaning set 
forth below:

[42 FR 56056, Oct. 20, 1977]



Sec. 40.115-1   Construction.

    May include the preliminary planning to determine the economic and 
engineering feasibility of a facility, the engineering, architectural, 
legal, fiscal, and economic investigations and studies, surveys, 
designs, plans, working drawings, specifications, procedures, and other 
action necessary to the construction of a facility, the erection, 
acquisition, alteration, remodeling, improvement, or extension of a 
facility, and the inspection and supervision of the construction of a 
facility.



Sec. 40.115-2   Intermunicipal agency.

    (a) Under the Clean Air Act, an agency of two or more municipalities 
located in the same State or in different States and having substantial 
powers or duties pertaining to the prevention and control of air 
pollution.
    (b) Under the Resource Conservation and Recovery Act, an agency 
established by two or more municipalities with responsibility for 
planning or administration of solid waste.
    (c) In all other cases, an agency of two or more municipalities 
having substantial powers or duties pertaining to the control of 
pollution.

[38 FR 12784, May 15, 1973, as amended at 42 FR 56056, Oct. 20, 1977]



Sec. 40.115-3   Interstate agency.

    (a) Under the Clean Air Act, an agency established by two or more 
States, or by two or more municipalities located in different States, 
having substantial powers or duties pertaining to the prevention and 
control of air pollution.
    (b) Under the Federal Water Pollution Control Act, an agency of two 
or more States established by or pursuant to an agreement or compact 
approved by the Congress or any other agency of two or more States, 
having substantial powers or duties pertaining to the control of 
pollution of waters.
    (c) Under the Resource Conservation and Recovery Act, an agency of 
two or more municipalities in different States or an agency established 
by two or more States, with authority to provide for the disposal of 
solid wastes and serving two or more municipalities located in different 
States.
    (d) In all other cases, an agency of two or more States having 
substantial powers or duties pertaining to the control of pollution.

[38 FR 12784, May 15, 1973, as amended at 42 FR 56056, Oct. 20, 1977]



Sec. 40.115-4   Municipality.

    (a) Under the Federal Water Pollution Control Act, a city, town, 
borough, county, parish, district, association, or other public body 
created by or pursuant to State law, or an Indian tribe or an authorized 
Indian tribal organization, with jurisdiction over disposal of sewage, 
industrial wastes, or other wastes; or a designated and approved 
management agency under section 208 of the act.
    (b) Under the Resource Conservation and Recovery Act, a city, town, 
borough, county, parish, district, or other public body created by or 
pursuant to State law, with responsibility for the planning or 
administration of solid waste management, or an Indian tribe or 
authorized tribal organization or Alaska Native village or organization, 
and any rural community or unincorporated town or village or any other 
public entity for which an application for assistance is made by a State 
or political subdivision thereof.
    (c) In all other cases, a city, town, borough, county, parish, 
district, or other public body created by or pursuant to State law, or 
an Indian tribe or an authorized Indian tribal organization, having 
substantial powers or duties pertaining to the control of pollution.

[38 FR 12784, May 15, 1973, as amended at 42 FR 56056, Oct. 20, 1977]



Sec. 40.115-5   Person.

    (a) Under the Federal Water Pollution Control Act, an individual, 
corporation, partnership, association, State, municipality, commission, 
or

[[Page 636]]

political subdivision of a State, or any interstate body.
    (b) Under the Resource Conservation and Recovery Act, an individual, 
trust, firm, joint stock company, corporation (including a government 
corporation), partnership, association, State, municipality, commission, 
political subdivision of a State, or any interstate body.

[38 FR 12784, May 15, 1973, as amended at 42 FR 56057, Oct. 20, 1977]



Sec. 40.115-6   State.

    (a) Under the Federal Water Pollution Control Act, a State, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, Guam, American Samoa, and the Trust Territory of the Pacific 
Islands.
    (b) Under the Resource Conservation and Recovery Act, a State, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, Guam, American Samoa, and the Commonwealth of the Northern 
Mariana Islands.
    (c) In all other cases, a State, the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam and American 
Samoa.

[42 FR 56057, Oct. 20, 1977]



Sec. 40.120   Publication of EPA research objectives.

    The Office of Research and Development of EPA publishes a statement 
of research objectives and priorities annually in a document entitled 
``Office of Research and Development--Program Guide.'' This document may 
be obtained from either the Office of Research and Development, RD-674, 
or the Grants Administration Division, PM-216, U.S. Environmental 
Protection Agency, Washington, DC 20460.

[42 FR 56057, Oct. 20, 1977]



Sec. 40.125  Grant limitations.



Sec. 40.125-1   Limitations on duration.

    (a) No research or demonstration grant shall be approved for a 
budget period in excess of 2 years except demonstration grants involving 
construction.
    (b) No research or demonstration grant shall be approved for a 
project period in excess of 5 years.
    (c) The grant award official may extend the budget and project 
periods for up to an additional 12 months without additional grant 
funds, when such extensions are in the best interest of the Government.

[42 FR 56057, Oct. 20, 1977]



Sec. 40.125-2   Limitations on assistance.

    In addition to the cost-sharing requirements pursuant to 40 CFR 
30.720, research and demonstration grants shall be governed by the 
specific assistance limitations listed below:
    (a) Federal Water Pollution Control Act. (1) Section 104(s)--no 
grant in any fiscal year may exceed $1 million.
    (2) Sections 105 (a), (c) and 108--no grant may exceed 75 percent of 
the allowable actual project costs.
    (b) Clean Air Act. (1) Section 104--no grant may exceed $1,500,000.
    (2) [Reserved]
    (c) Resource Conservation and Recovery Act. (1) Sections 8001, 8004, 
and 8005. The maximum practicable cost sharing is required.
    (2) Section 8006. The Federal share for any grant for the 
demonstration of resource recovery systems shall not exceed 75 percent 
and is subject to the conditions contained in section 8006(b) of the 
Act. The Federal share for any grant for the construction of new or 
improved solid waste disposal facilities shall not exceed 50 percent in 
the case of a project serving an area which includes only one 
municipality and 75 percent in any other case, and is subject to the 
limitations contained in section 8006(c) of the Act. Not more than 15 
percent of the total funds authorized to be appropriated for any fiscal 
year to carry out this section shall be awarded for projects in any one 
State.

[38 FR 12784, May 15, 1973, as amended at 42 FR 20083, May 8, 1977; 42 
FR 56057, Oct. 20, 1977]



Sec. 40.130   Eligibility.

    Except as otherwise provided below, grants for research and 
demonstration

[[Page 637]]

projects may be awarded to any responsible applicant in accordance with 
40 CFR 30.340:
    (a) The Clean Air Act, as amended--public or nonprofit private 
agencies, institutions, organizations, and to individuals.
    (b) Resource Conservation and Recovery Act.
    (1) Section 8001, public authorities, agencies, and institutions; 
private agencies and institutions; and individuals.
    (2) Sections 8004 and 8005, public agencies and authorities or 
private persons.
    (3) Section 8006, State, municipal, interstate or intermunicipal 
agencies.
    (4) No grant may be made under this Act to any private profit-making 
organization.
    (c) The Federal Insecticide, Fungicide, and Rodenticide Act, as 
amended--other Federal agencies, universities, or others as may be 
necessary to carry out the purposes of the act.
    (d) The Federal Water Pollution Control Act, as amended:
    (1) Section 104(b)--State water pollution control agencies, 
interstate agencies, other public or nonprofit private agencies, 
institutions, organizations, and to individuals.
    (2) Sections 104 (h) and (i)--public or private agencies and 
organizations and to individuals.
    (3) Section 104(r)--colleges and universities.
    (4) Section 104(s)--institutions of higher education.
    (5) Sections 105 (a), (e)(2), and 107--State, municipal, interstate, 
and intermunicipal agencies.
    (6) Section 195(b)--State or States or interstate agency.
    (7) Sections 105 (c) and (e)(1)--persons.
    (8) Section 108--State, political subdivision, interstate agency, or 
other public agency, or combination thereof.
    (9) Section 113--only to the State of Alaska.
    (e) The Public Health Service Act, as amended--only to nonprofit 
agencies, institutions, organizations, and to individuals.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 42 
FR 56057, Oct. 20, 1977]
Sec. 40.135  Application.



Sec. 40.135-1   Preapplication coordination.

    (a) All applicants. (1) Applicants for research and demonstration 
grants are encouraged to contact EPA for further information and 
assistance prior to submitting a formal application. The EPA regional 
office or the laboratory nearest the applicant will be able to provide 
such assistance or to refer the applicant to an appropriate EPA 
representative.
    (2) Applicants shall prepare an environmental assessment of the 
proposed project where applicable, outlining the anticipated impact on 
the environment pursuant to 40 CFR part 6.
    (b) Applications for grants for demonstration projects funded by the 
Office of Solid Waste will be solicited through the Department of 
Commerce Business Daily, and selections will be made on a competitive 
basis.

[38 FR 12784, May 15, 1973, as amended at 41 FR 20659, May 20, 1976; 42 
FR 56057, Oct. 20, 1977; 48 FR 29302, June 24, 1983]



Sec. 40.135-2   Application requirements.

    All applications for research and demonstration grants shall be 
submitted in an original and 8 copies to the Environmental Protection 
Agency, Grants Administration Division, Washington, DC 20460, in 
accordance with Sec. Sec. 30.315 through 30.315-3.
    (a) Applications involving human subjects. (1) Safeguarding the 
rights and welfare of human subjects involved in projects supported by 
EPA grants is the responsibility of the institution which receives or is 
accountable to EPA for the funds awarded for the support of the project.
    (2) Institutions must submit to EPA, for review, approval, and 
official acceptance, a written assurance of its compliance with 
guidelines established by Department of Health, Education, and Welfare 
concerning protection of human subjects. However, institutions which 
have submitted and have had accepted, general assurance to DHEW under 
these guidelines will be considered as being in compliance with this 
requirement. These guidelines are provided in DHEW Publication No. (NIH) 
72-102, the ``Institutional Guide to DHEW Policy on Protection of Human

[[Page 638]]

Subjects.'' Copies of this publication are available from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20420.
    (3) Applicants must provide with each proposal involving human 
subjects a certification that it has been or will be reviewed in 
accordance with the institution's assurance. This certification must be 
renewed annually on the basis of continuing review of the supported 
project.
    (b) Applications involving laboratory animals. Each application for 
a project involving the use of warmblooded animals shall include a 
written assurance that the applicant has registered with the Department 
of Agriculture and is in compliance with the rules, regulations, and 
standards enunciated in the Animal Welfare Act, Public Law 89-554, as 
amended.
    (c) Notice of research project (NRP). Each application for research 
must include a summary (NRP) of proposed work (200 words or less) 
incorporating objectives, approach and current plans and/or progress. 
Upon approval of an application, summaries are forwarded to the 
Smithsonian Science Information Exchange. Summaries of work in progress 
are exchanged with government and private agencies supporting research 
and are forwarded to investigators who request such information.
    (d) Federal Water Pollution Control Act. (1) All applications for 
grants under section 105(a) must have been approved by the appropriate 
State water pollution control agency or agencies.
    (2) All applications for grants under section 107, where the 
proposed project will be located in the Appalachian region, shall have 
been coordinated with the Appalachian Regional Commission for 
determination that such demonstration project is consistent with the 
objectives of the Appalachian Regional Development Act of 1965, as 
amended.
    (e) Intergovernmental review. EPA will not award funds under this 
subpart without review and consultation, if applicable, in accordance 
with the requirements of Executive Order 12372, as implemented in 40 CFR 
part 29 of this chapter.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 42 
FR 56057, Oct. 20, 1977; 48 FR 29302, June 24, 1983]



Sec. 40.140   Criteria for award.

    In determining the desirability and extent of funding for a project 
and the relative merit of an application, consideration will be given to 
the following criteria:



Sec. 40.140-1   All applications.

    (a) The relevancy of the proposed project to the objectives of the 
EPA research and demonstration program;
    (b) The availability of funds within EPA;
    (c) The technical feasibility of the project;
    (d) The seriousness, extent, and urgency of the environmental 
problems toward which the project is directed;
    (e) The anticipated public benefits to be derived from the project 
in relation to the costs of the project;
    (f) The competency of the applicant's staff and the adequacy of the 
applicant's facilities and available resources;
    (g) The degree to which the project can be expected to produce 
results that will have general application to pollution control problems 
nationwide;
    (h) Whether the project is consistent with existing plans or ongoing 
planning for the project area at the State, regional, and local levels;
    (i) The existence and extent of local public support for the 
project;
    (j) Whether the proposed project is environmentally sound;
    (k) Proposed cost sharing.



Sec. 40.140-2  [Reserved]



Sec. 40.140-3   Federal Water Pollution Control Act.

    (a) All applications for grants under section 105(c) must provide 
evidence that the proposed project will contribute to the development or 
demonstration of a new or improved method of treating industrial wastes 
or otherwise preventing pollution by industry, which method shall have 
industrywide application;

[[Page 639]]

    (b) All applications for grants under section 113 must include 
provisions for community safe water supply systems, toilets, bathing and 
laundry facilities, sewage disposal facilities and programs relating to 
health and hygiene. Such projects must also be for the further purpose 
of developing preliminary plans for providing such safe water and such 
elimination or control of water pollution for all native villages in the 
State of Alaska.



Sec. 40.145   Supplemental grant conditions.

    In addition to the EPA general grant conditions (40 CFR part 30, 
subpart C), all grants are awarded subject to the following 
requirements:
    (a) The project will be conducted in an environmentally sound 
manner.
    (b) In addition to the notification of project changes required 
pursuant to 40 CFR 30.900, prior written approval by the grants officer 
is required for project changes which may (1) alter the approved scope 
of the project, (2) substantially alter the design of the project, or 
(3) increase the amount of Federal funds needed to complete the project. 
No approval or disapproval of a project change pursuant to 40 CFR 30.900 
or this section shall commit or obligate the United States to an 
increase in the amount of the grant or payments thereunder, but shall 
not preclude submission or consideration of a request for a grant 
amendment pursuant to 40 CFR 30.900-1.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]



Sec. 40.145-1  Resource Conservation and Recovery Act.

    Programs for which a Federal grant is awarded by the Environmental 
Protection Agency to a State, municipal, interstate or intermunicipal 
agency, or to any public authority, agency or institution, under the 
Resource Conservation and Recovery Act, shall be the subject of public 
participation consistent with part 249 of this chapter.

[42 FR 56057, Oct. 20, 1977]



Sec. 40.145-2   Federal Water Pollution Control Act.

    (a) No person in the United States shall on the ground of sex be 
excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under any program or activity receiving 
assistance under the Act.
    (b) Grants under section 107 are awarded subject to the conditions--
(1) that the State shall acquire any land or interests therein necessary 
for such project to assure the elimination or control of acid or other 
mine water pollution; and (2) that the State shall provide legal and 
practical protection to the project area to insure against any 
activities which will cause future acid or other mine water pollution.



Sec. 40.145-3   Projects involving construction.

    Research and demonstration grants for projects involving 
construction shall be subject to the following conditions:
    (a) The applicant will demonstrate to the satisfaction of the grants 
officer that he has or will have a fee simple or such other estate or 
interest in the site of the project, and rights of access, as the grants 
officer finds sufficient to assure undisturbed use and possession for 
the purpose of construction and operation for the estimated life of the 
project; and in the case of projects serving more than one municipality, 
that the participating communities have such interests or rights as the 
grants officer finds sufficient to assure their undisturbed utilization 
of the project for the estimated life of the project.
    (b) Invitations for bids or requests for proposals shall be based 
upon a clear and accurate description of the technical requirements for 
the material, product, or service to be procured. Such description shall 
not, in competitive procurements, contain features which unduly restrict 
competition. ``Brand name or equal'' description may be used as a means 
to define the performance or other salient requirements of a 
procurement, and when so used the specific features of the named

[[Page 640]]

brand which must be met by offerors should be clearly specified.
    (c) Positive efforts shall be made by the grantees to utilize small 
business and minority-owned business sources of supplies and services.
    (d) Subagreements for construction work may be negotiated when 
advertising for competitive bids is not feasible; however, the grantee 
must adequately demonstrate its need to contract with a single or sole 
source. All such subagreements are subject to prior approval by the 
grants officer.
    (e) Construction work will be performed by the fixed-price (lump 
sum) or fixed-rate (unit price) method, or a combination of these two 
methods, unless the grants officer gives advance written approval to use 
some other method of contracting. The cost-plus-a-percentage-of-cost 
method of contracting shall not be used. Adequate methods of advertising 
for and obtaining competitive sealed bids will be employed prior to 
award of the construction contract. The award of the contract will be 
made to the responsible bidder submitting the lowest responsive bid, 
which shall be determined without regard to State or local law whereby 
preference is given on factors other than the specification requirements 
and the amount of bid. The grantee must promptly transmit to the grants 
officer copies of bid protests, decisions on such protests, and related 
correspondence. The grants officer will cause appropriate review of 
grantee procurement methods to be made.
    (f) On construction contracts exceeding $100,000, each bidder must 
furnish a bid guarantee equivalent to 5 percent of the bid price. In 
addition, the contractor awarded the contract must furnish performance 
and payment bonds, each of which shall be in an amount not less than 100 
percent of the contract price. Construction contracts less than $100,000 
shall follow the State or local requirements relating to bid guarantees, 
performance bonds, and payment bonds.
    (g) The construction of the project, including the letting of 
contracts in connection therewith, shall conform to the applicable 
requirements of State, territorial, and local laws and ordinances to the 
extent that such requirements do not conflict with Federal laws.
    (h) The grantee will provide and maintain competent and adequate 
engineering supervision and inspection for the project to insure that 
the construction conforms with the approved plans and specifications.
    (i) Any construction contract must provide that representatives of 
the Environmental Protection Agency and the State, as appropriate, will 
have access to the work whenever it is in preparation or progress and 
that the contractor will provide proper facilities for such access and 
inspection. The contract must also provide that the grants officer, the 
Comptroller General of the United States, or any authorized 
representative shall have access to any books, documents, papers, and 
records of the contractor which are pertinent to the project for the 
purpose of making audit, examination, excerpts, and transcriptions 
thereof.
    (j) The grantee agrees to construct the project or cause it to be 
constructed in accordance with the application, plans and 
specifications, and subagreements approved by EPA in the grant agreement 
or amendments.
    (k) In addition to the notification of project changes pursuant to 
40 CFR 30.900, a copy of any construction contract or modifications 
thereof, and of revisions to plans and specifications must be submitted 
to the grants officer.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]



Sec. 40.150   Evaluation of applications.

    Every application for a research or demonstration grant will be 
evaluated by appropriate EPA staff in terms of relevancy and the 
applicable criteria set forth in Sec. 40.140. Only applications 
considered relevant to EPA research and demonstration objectives will 
receive further consideration and be subjected to additional review. 
Relevancy will be measured by program needs and priorities as defined in 
the Agency's current planned objectives. Relevancy, coupled with the 
results of technical review, will provide the basis for funding 
recommendations.
    (a) New applications. Applications considered relevant to EPA 
research

[[Page 641]]

and demonstration objectives will be reviewed for technical merit by at 
least one reviewer within EPA and at least two reviewers outside EPA. 
Review by a National Advisory Council is statutorily required for 
radiation grants.
    (b) Continuation applications. Continuation applications will be 
reviewed by appropriate EPA staff only. Recommendations for continuation 
of funding will be based on progress toward the accomplishment of the 
goals set forth for the project and continued Agency needs and 
priorities.



Sec. 40.155  Availability of information.

    (a) The availability to the public of information provided to, or 
otherwise obtained by, the Administrator under this part shall be 
governed by part 2 of this chapter.
    (b) An assertion of entitlement to confidential treatment of part or 
all of the information in an application may be made using the procedure 
described in Sec. 30.235(b). See also Sec. Sec. 2.203 and 2.204 of this 
chapter.
    (c) All information and data contained in the grant application will 
be subject to external review unless deviation is approved for good 
cause pursuant to 40 CFR 30.1000.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975; 41 
FR 36918, Sept. 1, 1976]



Sec. 40.160   Reports.



Sec. 40.160-1   Progress reports.

    The grant agreement will normally require the submission of a brief 
progress report after the end of each quarter of the budget period. A 
monthly progress report may be required for some demonstration projects, 
if set forth in the grant agreement. Progress reports should fully 
describe in chart or narrative format the progress achieved in relation 
to the approved schedule and project milestones. Special problems or 
delays encountered must be explained. A summary progress report covering 
all work on the project to date is required to be included with 
applications for continuation grants (see Sec. 40.165b). This report may 
be submitted one quarter prior to the end of the budget period.



Sec. 40.160-2  Financial status report.

    A financial status report must be prepared and submitted within 90 
days after completion of the budget and project periods in accordance 
with Sec. 30.635-3.

[42 FR 56057, Oct. 20, 1977]



Sec. 40.160-3   Reporting of inventions.

    As provided in appendix B of 40 CFR part 30, immediate and full 
reporting of all inventions to the Environmental Protection Agency is 
required. In addition:
    (a) An annual invention statement is required with each continuation 
application.
    (b) A final invention report is required within 90 days after 
completion of the project period.
    (c) When a principal investigator changes institutions or ceases to 
direct a project, an invention statement must be promptly submitted with 
a listing of all inventions during his administration of the grant.

[38 FR 12784, May 15, 1973, as amended at 40 FR 20083, May 8, 1975]



Sec. 40.160-4   Equipment report.

    At the completion or termination of a project, the grantee will 
submit a listing of all items of equipment acquired with grant funds 
with an acquisition cost of $300 or more and having a useful life of 
more than 1 year.



Sec. 40.160-5   Final report.

    The grantee shall submit a draft of the final report for review no 
later than 90 days prior to the end of the approved project period. The 
report shall document project activities over the entire period of grant 
support and shall describe the grantee's achievements with respect to 
stated project purposes and objectives. The report shall set forth in 
complete detail all technical aspects of the projects, both negative and 
positive, grantee's findings, conclusions, and results, including, as 
applicable, an evaluation of the technical effectiveness and economic 
feasibility of the methods or techniques investigated or demonstrated. 
The final report shall include EPA comment when required by the grants 
officer. Prior to

[[Page 642]]

the end of the project period, one reproducible copy suitable for 
printing and such other copies as may be stipulated in the grant 
agreement shall be transmitted to the grants officer.



Sec. 40.165   Continuation grants.

    To be eligible for a continuation grant within the approved project 
period, the grantee must:
    (a) Have demonstrated satisfactory performance during all previous 
budget periods; and
    (b) Submit no later than 90 days prior to the end of the budget 
period a continuation application which includes a detailed summary 
progress report, an estimated financial statement for the current budget 
period, a budget for the new budget period; and an updated work plan 
revised to account for actual progress accomplished during the current 
budget period.



PART 45--TRAINING ASSISTANCE--Table of Contents




Sec.
45.100  Purpose and scope.
45.105  Authority.
45.110  Objectives.
45.115  Definitions.
45.120  Applicant eligibility.
45.125  Application requirements.
45.130  Evaluation of applications.
45.135  Supplemental conditions.
45.140  Budget and project period.
45.145  Allocability and allowability of costs.
45.150  Reports.
45.155  Continuation assistance.

Appendix A to Part 45--Environmental Protection Agency Training Programs

    Authority: Sec. 103 of the Clean Air Act, as amended (42 U.S.C. 
7403), secs. 104(g), 109, and 111 of the Clean Water Act, as amended (33 
U.S.C. 1254(g), 1259, and 1261), secs. 7007 and 8001 of the Solid Waste 
Disposal Act, as amended (42 U.S.C. 6977 and 6981); sec. 1442 of the 
Safe Drinking Water Act, as amended (42 U.S.C. 300j-1).

    Source: 49 FR 41004, Oct. 18, 1984, unless otherwise noted.



Sec. 45.100  Purpose and scope.

    This part establishes the policies and procedures for the award of 
training assistance by the Environmental Protection Agency (EPA). The 
provisions of this part supplement EPA's ``General Regulation for 
Assistance Programs,'' 40 CFR part 30.



Sec. 45.105  Authority.

    The EPA is authorized to award training assistance under the 
following statutes:
    (a) Section 103 of the Clean Air Act, as amended (42 U.S.C. 7403);
    (b) Sections 104(g), 109, and 111 of the Clean Water Act, as amended 
(33 U.S.C. 1254(g), 1259, and 1261);
    (c) Sections 7007 and 8001 of the Solid Waste Disposal Act, as 
amended (42 U.S.C. 6977 and 6981);
    (d) Section 1442 of the Safe Drinking Water Act, as amended (42 
U.S.C. 300j-1).



Sec. 45.110  Objectives.

    Assistance agreements are awarded under this part to support 
students through traineeships for occupational and professional 
training, and to develop career-oriented personnel qualified to work in 
occupations involving environmental protection and pollution abatement 
and control. Training assistance is available to:
    (a) Assist in developing, expanding, planning, implementing, and 
improving environmental training;
    (b) Increase the number of trained pollution control and abatement 
personnel;
    (c) Upgrade the level of occupational and professional training 
among State and local environmental control personnel;
    (d) Train people to train others in occupations involving pollution 
abatement and control; and
    (e) Bring new people into the environmental control field.



Sec. 45.115  Definitions.

    The following definitions supplement the definitions in 40 CFR 
30.200.
    Stipend. Supplemental financial assistance, other than tuition and 
fees, paid directly to the trainee by the recipient organization.
    Trainee. A student selected by the recipient organization who 
receives support to meet the objectives in Sec. 45.110.



Sec. 45.120  Applicant eligibility.

    Institutions, organizations, and individuals are eligible for EPA 
training awards as follows:
    (a) Clean Air Act. Section 103(b)--Air pollution control agencies, 
public and

[[Page 643]]

nonprofit private agencies, institutions, organizations, and 
individuals. No award may be made under this Act to any private, 
profitmaking organization.
    (b) Clean Water Act. (1) Section 104(b)(3)--State water pollution 
control agencies, interstate agencies, other public or nonprofit private 
agencies, institutions, organizations, and individuals. No award may be 
made to any private, profitmaking organization.
    (2) Section 104(g)(3)(A)--Public or private agencies and 
institutions, and individuals.
    (3) Sections 104(g)(1) and 104(g)(3)(C)--State and interstate 
agencies, municipalities, educational institutions and other 
organizations and individuals.
    (4) Sections 109, 110, and 111--Institutions of higher education, or 
combinations of such institutions.
    (c) Solid Waste Disposal Act. (1) Section 8001(a)--Public or private 
authorities, agencies, and institutions and individuals. No award may be 
made to any private, profitmaking organization.
    (2) Section 7007(a)--State or interstate agencies, municipalities, 
educational institutions, and other organizations.
    (d) Safe Drinking Water Act. Sections 1442(b) and 1442(d)--Public 
agencies, educational institutions, and other organizations. No awards 
may be made to profitmaking agencies or institutions.



Sec. 45.125  Application requirements.

    Applicants must submit their requests for assistance on EPA Form 
5700-12, ``Application for Federal Assistance.'' Applicants must submit 
the original and two copies of the application to EPA. If the assistance 
agreement is to be awarded by EPA Headquarters, the applicant must send 
the application to the Environmental Protection Agency, Grants 
Administration Division, Grants Operation Branch (PM-216), 401 M Street 
SW., Washington, DC 20460. If the assistance agreement is to be awarded 
by an EPA Regional Office, the applicant must send the application to 
the appropriate Regional Office.

(Approved by the Office of Management and Budget under control number 
2010-0004)



Sec. 45.130  Evaluation of applications.

    (a) Consistent with 40 CFR 30.301, the appropriate EPA program 
office staff will review training applications in accordance with the 
following criteria:
    (1) Relevance of proposal to Agency objectives, priorities, 
achievement of national goals and technical merit;
    (2) Competency of the proposed staff in relation to the type of 
project proposed;
    (3) Feasibility of the proposal;
    (4) Adequacy of the applicant's resources available for the project;
    (5) Amount of funds necessary for the completion of the project;
    (b) In addition, awards under section 104(g)(1) of the Clean Water 
Act, are subject to the following criteria:
    (1) Assessment of need for training in a State or municipality based 
on problems with existing wastewater treatment plants, such as violation 
of discharge permit conditions, and faulty or improper operation or 
maintenance.
    (2) Need for operating training based on the number of wastewater 
treatment construction grants in the State.



Sec. 45.135  Supplemental conditions.

    Training awards are subject to the following conditions:
    (a) Trainees must be citizens of the United States, its territories, 
or possessions, or lawfully admitted to the United States for permanent 
residence.
    (b) Recipients shall not require the performance of personal 
services by individuals receiving training as a condition for 
assistance.
    (c) Trainees are entitled to the normal student holidays observed by 
an academic institution, or the holiday and vacation schedule applicable 
to all trainees at a nonacademic institution.
    (d) Training awards may include a provision to pay stipends to 
trainees. Stipends must be paid under section 111 of the Clean Water Act 
consistent with prevailing practices under comparable federally 
supported programs.
    (e) Training awards under section 111 of the Clean Water Act are 
subject to the following conditions:
    (1) Recipients must obtain the following agreement in writing from 
persons awarded scholarships for undergraduate study of the operation 
and maintenance of treatment works:


[[Page 644]]


    I agree to enter and remain in an occupation involving the design, 
operation, or maintenance of wastewater treatment works for a period of 
two years after the satisfactory completion of my studies under this 
program. I understand that if I fail to perform this obligation I may be 
required to repay the amount of my scholarship.

    (2) Recipients must take such action as may be reasonably required 
to enforce the condition in paragraph (e)(1) of this section. Recipients 
shall credit or pay EPA for any repayments.



Sec. 45.140  Budget and project period.

    The budget and project periods for training awards may not exceed 
three years.



Sec. 45.145  Allocability and allowability of costs.

    (a) Allocability and allowability of costs will be determined in 
accordance with 40 CFR 30.410.
    (b) Costs incurred for the purchase of land or the construction of 
buildings are not allowable.



Sec. 45.150  Reports.

    (a) Recipients must submit the reports required in 40 CFR 30.505.
    (b) A draft of the final project report is required 90 days before 
the end of the project period. The recipient shall prepare the final 
projects report in accordance with the project officer's instructions, 
and submit the final project report within 30 days after the end of the 
project period.



Sec. 45.155  Continuation assistance.

    To be eligible for continuation assistance, the recipient must:
    (a) Demonstrate satisfactory performance during all previous budget 
periods;
    (b) Include in the application a detailed progress report showing 
the progress achieved and explain special problems or delays, a budget 
for the new budget period, and a detailed work plan for the new budget 
period; and
    (c) Submit a preliminary financial statement for the current budget 
period that includes estimates of the amount the recipient expects to 
spend by the end of the current budget period and the amount of any 
uncommitted funds which the recipient proposes to carry over beyond the 
term of the current budget period.

Appendix A to Part 45--Environmental Protection Agency Training Programs
------------------------------------------------------------------------
                                            Administering office        
                                   -------------------------------------
                                       Headquarters         Regional    
------------------------------------------------------------------------
Office of Air, Noise, and                                               
 Radiation:                                                             
  Air Pollution Control Manpower    X                   ................
   Training Grants.                                                     
  Air Pollution Control--Technical  X                   ................
   Training.                                                            
Office of Water:                                                        
  Water Pollution Control--         X                   X.              
   Professional Training Grants.                                        
  Safe Drinking Water Professional  X                   ................
   Training Grants.                                                     
  Safe Drinking Water--             X                   ................
   Occupational Training.                                               
Office of Solid Waste and           X                   ................
 Emergency Response: Hazardous                                          
 Waste Training.                                                        
------------------------------------------------------------------------



PART 46--FELLOWSHIPS--Table of Contents




Sec.
46.100  Purpose.
46.105  Authority.
46.110  Objectives.
46.115  Types of fellowships.
46.120  Definitions.
46.125  Benefits.
46.130  Eligibility.
46.135  Submission of applications.
46.140  Evaluation of applications.
46.145  Fellowship agreement.
46.150  Fellowship agreement amendment.
46.155  Supplemental conditions.
46.160  Acceptance of fellowship award.
46.165  Duration of fellowship.
46.170  Initiation of studies.
46.175  Completion of studies.
46.180  Payment.

Appendix A to Part 46--Environmental Protection Agency Fellowship 
          Programs

    Authority: Sec. 103(b)(5) of the Clean Air Act as amended, (42 
U.S.C. 7403(b)(5)); secs. 104(b)(5) and (g)(3)(B) of the Clean Water 
Act, as amended (33 U.S.C. 1254(b)(5) and (g)(3)(B)); sec. 1442(d)(2) of 
the Safe Drinking Water Act, as amended, (42 U.S.C. 300j-1(d)(2)); and 
sec. 8001 of the Solid Waste Disposal Act, as amended (42 U.S.C. 6981).

    Source: 49 FR 41006, Oct. 18, 1984, unless otherwise noted.



Sec. 46.100  Purpose.

    This part establishes the policies and procedures for all 
Environmental Protection Agency (EPA) fellowships and

[[Page 645]]

supplements the requirements in 40 CFR part 30, ``General Regulation for 
Assistance Programs.''



Sec. 46.105  Authority.

    The EPA is authorized to award fellowships under the following 
statutes:
    (a) Section 103(b)(5) of the Clean Air Act as amended (42 U.S.C. 
7403(b)(5));
    (b) Section 104(b)(5) and (g)(3)(B) of the Clean Air Act, as amended 
(33 U.S.C. 1254(b)(5) and (g)(3)(B);
    (c) Section 1442(d)(2) of the Safe Drinking Water Act, as amended 
(42 U.S.C. 300j-1(d)(2); and
    (d) Section 8001 of the Solid Waste Disposal Act as amended (42 
U.S.C. 6981).



Sec. 46.110  Objectives.

    Fellowships awarded under this part are intended to enhance the 
capability of State or local agencies responsible for environmental 
pollution control or other agencies with similar pollution control 
responsibilities; provide educational renewal opportunities for their 
career oriented personnel to achieve additional knowledge through 
academic professional training; and to bring new people into the 
environmental control field.



Sec. 46.115  Types of fellowships.

    (a) Local agency fellowships are awarded to current or prospective 
employees of a local environmental pollution control or regulatory 
agency for academic professional training in pollution control science, 
engineering, and technology and in specialty areas supportive of 
pollution abatement and control efforts.
    (b) State agency fellowships are awarded to current or prospective 
employees of a State environmental pollution control or regulatory 
agency to provide academic professional training in the areas of 
pollution abatement and control.
    (c) Special fellowships are awarded to individuals for education and 
training in pollution control science, engineering, and technology and 
in specialty areas supportive of pollution abatement and control 
efforts.



Sec. 46.120  Definitions.

    The following definitions supplement the definitions in 40 CFR 
30.200.
    Full-time fellow. An individual enrolled in an academic educational 
program directly related to pollution abatement and control, and taking 
a minumum of 30 credit hours or an academic workload otherwise defined 
by the institution as a full-time curriculum for a school year. The 
fellow need not be pursuing a degree.
    Part-time fellow. An individual enrolled in an academic educational 
program directly related to pollution abatement and control and taking 
at least 6 credit hours but less than 30 credit hours per school year, 
or an academic workload otherwise defined by the institution as less 
than a full-time curriculum. The fellow need not be pursuing a degree.
    Special fellow. An individual enrolled in an educational program 
relating to environmental sciences, engineering, professional schools, 
and allied sciences.
    Stipend. Supplemental financial assistance other than tuition, fees, 
and book allowance, paid directly to the fellow.



Sec. 46.125  Benefits.

    (a) Recipients of assistance under this part shall be entitled to 
tuition and fees. Recipients may receive an allowance for books and 
supplies up to a maximum of $750 for the school year for a full-time 
fellow, and are entitled to the normal student holidays observed by the 
academic institution.
    (b) Recipients of a fellowships may receive a stipend at a level 
determined by the EPA program office based on EPA's needs and resources, 
and on the student's course load.
    (c) Part-time fellows will not be paid more than the maximum amount 
paid to an equivalent full-time fellow under the same fellowships 
program.



Sec. 46.130  Eligibility.

    (a) All applicants for fellowships under this part must be:
    (1) Citizens of the United States, its territories, or possessions, 
or lawfully admitted to the United States for permanent residence; and

[[Page 646]]

    (2) Accepted by an accredited educational institutional for full-
time or part-time enrollment for academic credit in an educational 
program directly related to pollution abatement and control.
    (b) Applicants for State or local agency fellowships must be current 
or prospective employees of a State or local agency with 
responsibilities for environmental pollution control, and must be 
recommended by the administrator, or designee, of the State or local 
agency. The administrator, or designee, will recommend applicants based 
on the State or local need for academic professional training which will 
enhance the capability of the State or local agency.



Sec. 46.135  Submission of applications.

    (a) Applicants must submit their requests for assistance on EPA Form 
5770-2, ``Fellowship Application.'' Applicants must submit the original 
and two copies of the application and undergraduate or graduate 
transcripts, as appropriate, to the Grants Administration Division, 
Grants Operation Branch (PM-216), Environmental Protection Agency, 401 M 
Street SW., Washington, DC, 20460.
    (b) The applicant must submit documentation to show compliance with 
the eligibility requirements in Sec. 46.130, and any additional 
information required by the award official. Instructions for filing are 
contained in the application kit.

(Information collection requirements in paragraph (a) were approved by 
the Office of Management and Budget under control number 2010-0004)



Sec. 46.140  Evaluation of applications.

    (a) EPA will evaluate fellowship applications based upon:
    (1) Their relevance to EPA's program needs;
    (2) The availability of funds;
    (3) EPA's priorities;
    (4) Appropriateness of the fellow's proposed course of study; and
    (5) Evaluation of the applicant in terms of potential for study, as 
evidenced by academic record, letters of reference, training plans; and 
any other available information.



Sec. 46.145  Fellowship agreement.

    (a) The fellowship agreement is the written agreement, including 
amendments, between EPA and a fellow. The agreement, EPA Form 5770-8, 
``Fellowship Agreement,'' will state the terms and conditions governing 
the fellowship.
    (b) EPA will not participate in costs incurred by the fellow before 
both the award official and the fellow sign the agreement.
    (c) The fellow must use the funds for the purposes stated in the 
fellowship agreement. If the fellow fails to comply with the terms and 
conditions of the award, the award official may apply the sanctions in 
40 CFR part 30, subpart I.

(Information collection requirements in paragraph (a) were approved by 
the Office of Management and Budget under control number 2010-0004)



Sec. 46.150  Fellowship agreement amendment.

    (a) The fellow must receive a formal amendment before implementing:
    (1) Changes in the objective of the agreement;
    (2) Changes in the assistance amount;
    (3) Substantial changes within the scope of the agreement; or
    (4) Changes in the project period.
    (b) Fellows must submit a completed EPA Form 5770-6, ``Fellowship 
Amendment'' when requesting an amendment to the fellowship agreement.
    (c) Minor changes in the agreement that are consistent with the 
objective of the agreement and within the scope of the agreement do not 
require a formal amendment before the fellow implements the change. 
However, such changes do not obligate EPA to provide Federal funds for 
any costs incurred by the fellow in excess of the assistance amount 
unless the award official approves the change in advance under 
Sec. 46.150(a). The fellow must inform the EPA project officer in 
writing before implementing minor changes.

(Information collection requirements in paragraph (b) were approved by 
the Office of Management and Budget under control number 2010-0004)

[[Page 647]]



Sec. 46.155  Supplemental conditions.

    Recipients of a State or local fellowship receiving financial 
assistance under section 1442(d)(2) of the Safe Drinking Water Act, as 
amended; sections 104(b)(5) and (g)(3)(B) of the Clean Water Act as 
amended; and section 8001 of the Solid Waste Disposal Act must agree to 
remain in the employment of the State or local agency that recommended 
the recipient for an EPA fellowship for twice the period of the 
fellowship. If the recipient fails to perform this obligation the 
recipient may be required to repay the amount of the EPA fellowship.



Sec. 46.160  Acceptance of fellowship award.

    The applicant accepts the fellowship by signing and returning the 
fellowship agreement to the EPA award official within three weeks after 
receipt, or within any extension of such time that may be permitted by 
the EPA award official. If the applicant does not sign and return the 
agreement to the award official or request an extension of the 
acceptance time within three calendar weeks after receiving the 
agreement, the offer is null and void.



Sec. 46.165  Duration of fellowship.

    (a) Full-time fellowships will not exceed one year.
    (b) Part-time fellowships will not exceed three years.



Sec. 46.170  Initiation of studies.

    (a) The fellow must submit EPA 5770-7 ``Fellowship Activation 
Notice'' when they start their course of studies.
    (b) If the EPA Grants Administration Division has not received the 
signed Fellowship Activation Notice within six months following the date 
of the award, EPA may terminate the fellowship.

(Information collection requirements in paragraph (a) were approved by 
the Office of Management and Budget under control number 2010-0004)



Sec. 46.175  Completion of studies.

    Fellows must submit EPA Form 5770-9 ``EPA Fellowship Termination 
Notice,'' when the fellow completes the course of study.

(Approved by the Office of Management and Budget under control number 
2010-0004)



Sec. 46.180  Payment.

    (a) EPA will pay stipends directly to the fellow on a monthly basis 
or any other basis approved by the Project Officer, only after EPA has 
received the signed EPA Form 5770-7, ``Fellowship Activation Notice.''
    (b) EPA will pay the book allowance directly to the fellow only 
after EPA receives the signed EPA Form 5770-7.
    (c) EPA will pay tuition and fees in a lump payment directly to the 
sponsoring institution only after EPA has received the signed EPA Form 
5770-7.

(Information collection requirements in paragraph (a) were approved by 
the Office of Management and Budget under control number 2010-0004)

    Appendix A to Part 46--Environmental Protection Agency Fellowship   
                                Programs                                
------------------------------------------------------------------------
                                            Administering office        
                                   -------------------------------------
                                       Headquarters         Regional    
------------------------------------------------------------------------
Office of Air, Noise, and           X                   ................
 Radiation: Air Pollution Control                                       
 Fellowships.                                                           
Office of Water:                                                        
  Water Pollution Control           X                   ................
   Fellowships.                                                         
Safe Drinking Water Fellowships...  X                   ................
Office of Research and              X                   ................
 Development: Interdisciplinary                                         
 Fellowships.                                                           
Office of Solid Waste and           X                   ................
 Emergency Response: Hazardous                                          
 Waste Fellowships.                                                     
------------------------------------------------------------------------



PART 47--NATIONAL ENVIRONMENTAL EDUCATION ACT GRANTS--Table of Contents




Sec.
47.100  Purpose and scope.
47.105  Definitions.
47.110  Eligible applicants.
47.115  Award amount and matching requirements.
47.120  Solicitation notice and proposal procedures.
47.125  Eligible and priority projects and activities.
47.130  Performance of grant.
47.135  Disputes.

    Authority: 20 U.S.C. 5505.


[[Page 648]]


    Source: 57 FR 8390, Mar. 9, 1992, unless otherwise noted.



Sec. 47.100  Purpose and scope.

    This regulation codifies policy and procedures for the award of 
grants or cooperative agreements under section 6 of the NEEA. 
Specifically, this regulation defines eligible applicants, eligible 
activities, EPA priorities for selecting recipients, funding limits, and 
matching requirements. Projects funded under this regulation are also 
subject to the Code of Federal Regulations (40 CFR) part 31 for State 
and local recipients, and part 30 for other than State and local 
recipients. Those regulations contain Federal audit and other general 
administrative requirements. This regulation does not apply to the 
programs implemented under sections 5 and 7 of the NEEA.



Sec. 47.105  Definitions.

    (a) Environmental education and environmental education and training 
mean educational activities and training activities involving 
elementary, secondary, and postsecondary students, as such terms are 
defined in the State in which they reside, and environmental education 
personnel, but does not include technical training activities directed 
toward environmental management professionals or activities primarily 
directed toward the support of noneducational research and development;
    (b) Federal agency or agency of the United States means any 
department, agency or other instrumentality of the Federal Government, 
any independent agency or establishment of the Federal Government 
including any Government corporation;
    (c) Local education agency means any education agency as defined in 
section 198 of the Elementary and Secondary Education Act of 1965 (20 
U.S.C. 3381) and shall include any tribal education agency, as defined 
in Sec. 47.105(f);
    (d) Not-for-profit organization means an organization, association, 
or institution described in section 501(c)(3) of the Internal Revenue 
Code of 1986, which is exempt from taxation pursuant to the provisions 
of section 501(a) of such Code;
    (e) Noncommercial education broadcasting entities means any 
noncommercial educational broadcasting station (and/or its legal 
nonprofit affiliates) as defined and licensed by the Federal 
Communications Commission;
    (f) Tribal education agency means a school or community college 
which is controlled by an Indian tribe, band, or nation, including any 
Alaska Native village, which is recognized as eligible for special 
programs and services provided by the United States to Indians because 
of their status as Indians and which is not administered by the Bureau 
of Indian Affairs;
    (g) Refer to 40 CFR parts 30 and 31 for definitions for budget 
period, project period, continuation award, cooperative agreement, grant 
agreement, and other Federal assistance terms.



Sec. 47.110  Eligible applicants.

    Any local education agency (including any tribal education agency), 
college or university, State education agency or environmental agency, 
not-for-profit organization, or noncommercial educational broadcasting 
entity may submit an application to the Administrator in response to the 
solicitations described in Sec. 47.120.



Sec. 47.115  Award amount and matching requirements.

    (a) Individual awards shall not exceed $250,000, and 25 percent of 
all funds obligated under this section in a fiscal year shall be for 
individual awards of not more than $5,000.
    (b) The Federal share shall not exceed 75 percent of the total 
project costs. The non-Federal share of project costs may be provided by 
in-kind contributions and other noncash support. In cases where the EPA 
determines that a proposed project merits support and cannot be 
undertaken without a higher rate of Federal support, the EPA may approve 
awards with a matching requirement other than that specified in this 
paragraph, including full Federal funding.



Sec. 47.120  Solicitation notice and proposal procedures.

    Each fiscal year the Administrator shall publish a solicitation for 
environmental education grant proposals. The

[[Page 649]]

solicitation notice shall prescribe the information to be included in 
the proposal and other information sufficient to permit EPA to assess 
the project.



Sec. 47.125  Eligible and priority projects and activities.

    (a) Activities eligible for funding shall include, but not be 
limited to, environmental education and training programs for:
    (1) Design, demonstration, or dissemination of environmental 
curricula, including development of educational tools and materials;
    (2) Design and demonstration of field methods, practices, and 
techniques, including assessment of environmental and ecological 
conditions and analysis of environmental pollution problems;
    (3) Projects to understand and assess a specific environmental issue 
or a specific environmental problem;
    (4) Provision of training or related education for teachers, 
faculty, or related personnel in a specific geographic area or region; 
and
    (5) Design and demonstration of projects to foster international 
cooperation in addressing environmental issues and problems involving 
the United States and Canada or Mexico.
    (b) EPA shall give priority to those proposals which will develop:
    (1) A new or significantly improved environmental education 
practice, method, or technique;
    (2) An environmental education practice, method, or technique which 
may have wide application;
    (3) An environmental education practice, method, or technique which 
addresses a skill or scientific field identified as a priority in the 
report which will be developed within two years of enactment pursuant to 
section 9(d) of the Act; and
    (4) An environmental education practice, method, or technique which 
addresses an environmental issue which, in the judgment of EPA, is of a 
high priority.



Sec. 47.130  Performance of grant.

    (a) Each project shall be performed by the recipient, or by a person 
satisfactory to the recipient and to the EPA. Workplans shall accompany 
all applications, shall identify who will be performing activities, and 
shall be approved by EPA prior to funding.
    (b) Budget periods normally will not exceed one year. Project 
periods may be longer, and additional funding may be awarded for 
continuations.
    (c) Procurement procedures, which are found in 40 CFR part 33 for 
all recipients other than State and local governments. Procurement 
procedures for State and local governments are described in 40 CFR part 
31. These procedures include provisions for small purchase procedures.



Sec. 47.135  Disputes.

    Disputes arising under these grants shall be governed by 40 CFR 
30.1200 for recipients other than State and local governments and 40 CFR 
31.70 for State and local governments.
                                Sec. 50.1

[[Page 650]]



                       SUBCHAPTER C--AIR PROGRAMS





PART 50--NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY STANDARDS--Table of Contents




Sec.
50.1  Definitions.
50.2  Scope.
50.3  Reference conditions.
50.4  National primary ambient air quality standards for sulfur oxides 
          (sulfur dioxide).
50.5  National secondary ambient air quality standard for sulfur oxides 
          (sulfur dioxide).
50.6  National primary and secondary ambient air quality standards for 
          particulate matter.
50.7  [Reserved]
50.8  National primary ambient air quality standards for carbon 
          monoxide.
50.9  National primary and secondary ambient air quality standards for 
          ozone.
50.10  [Reserved]
50.11  National primary and secondary ambient air quality standard for 
          nitrogen dioxide.
50.12  National primary and secondary ambient air quality standards for 
          lead.

                          Appendices to Part 50

Appendix A--Reference Method for the Determination of Sulfur Dioxide in 
          the Atmosphere (Pararosaniline Method)
Appendix B--Reference Method for the Determination of Suspended 
          Particulate Matter in the Atmosphere (High-Volume Method)
Appendix C--Measurement Principle and Calibration Procedure for the 
          Measurement of Carbon Monoxide in the Atmosphere (Non-
          Dispersive Infrared Photometry)
Appendix D--Measurement Principle and Calibration Procedure for the 
          Measurement of Ozone in the Atmosphere
Appendix E--Reference Method for Determination of Hydrocarbons Corrected 
          for Methane
Appendix F--Measurement Principle and Calibration Procedure for the 
          Measurement of Nitrogen Dioxide in the Atmosphere (Gas Phase 
          Chemiluminescence)
Appendix G--Reference Method for the Determination of Lead in Suspended 
          Particulate Matter Collected from Ambient Air
Appendix H--Interpretation of the National Ambient Air Quality Standards 
          for Ozone
Appendix I--[Reserved]
Appendix J--Reference Method for the Determination of Particulate Matter 
          as PM10 in the Atmosphere
Appendix K--Interpretation of the National Ambient Air Quality Standards 
          for Particulate Matter

    Authority: Secs. 109 and 301(a), Clean Air Act, as amended (42 
U.S.C. 7409, 7601(a)).

    Source: 36 FR 22384, Nov. 25, 1971, unless otherwise noted.



Sec. 50.1   Definitions.

    (a) As used in this part, all terms not defined herein shall have 
the meaning given them by the Act.
    (b) Act means the Clean Air Act, as amended (42 U.S.C. 1857-18571, 
as amended by Pub. L. 91-604).
    (c) Agency means the Environmental Protection Agency.
    (d) Administrator means the Administrator of the Environmental 
Protection Agency.
    (e) Ambient air means that portion of the atmosphere, external to 
buildings, to which the general public has access.
    (f) Reference method means a method of sampling and analyzing the 
ambient air for an air pollutant that is specified as a reference method 
in an appendix to this part, or a method that has been designated as a 
reference method in accordance with part 53 of this chapter; it does not 
include a method for which a reference method designation has been 
cancelled in accordance with Sec. 53.11 or Sec. 53.16 of this chapter.
    (g) Equivalent method means a method of sampling and analyzing the 
ambient air for an air pollutant that has been designated as an 
equivalent method in accordance with part 53 of this chapter; it does 
not include a method for which an equivalent method designation has been 
cancelled in accordance with Sec. 53.11 or Sec. 53.16 of this chapter.
    (h) Traceable means that a local standard has been compared and 
certified either directly or via not more than one intermediate 
standard, to a primary standard such as a National Bureau of Standards 
Standard Reference Material (NBS SRM), or a

[[Page 651]]

USEPA/NBS-approved Certified Reference Material (CRM).

[36 FR 22384, Nov. 25, 1971, as amended at 41 FR 11253, Mar. 17, 1976; 
48 FR 2529, Jan. 20, 1983]



Sec. 50.2   Scope.

    (a) National primary and secondary ambient air quality standards 
under section 109 of the Act are set forth in this part.
    (b) National primary ambient air quality standards define levels of 
air quality which the Administrator judges are necessary, with an 
adequate margin of safety, to protect the public health. National 
secondary ambient air quality standards define levels of air quality 
which the Administrator judges necessary to protect the public welfare 
from any known or anticipated adverse effects of a pollutant. Such 
standards are subject to revision, and additional primary and secondary 
standards may be promulgated as the Administrator deems necessary to 
protect the public health and welfare.
    (c) The promulgation of national primary and secondary ambient air 
quality standards shall not be considered in any manner to allow 
significant deterioration of existing air quality in any portion of any 
State.
    (d) The proposal, promulgation, or revision of national primary and 
secondary ambient air quality standards shall not prohibit any State 
from establishing ambient air quality standards for that State or any 
portion thereof which are more stringent than the national standards.



Sec. 50.3   Reference conditions.

    All measurements of air quality are corrected to a reference 
temperature of 25 deg. C. and to a reference pressure of 760 millimeters 
of mercury (1,013.2 millibars).



Sec. 50.4  National primary ambient air quality standards for sulfur oxides (sulfur dioxide).

    (a) The level of the annual standard is 0.030 parts per million 
(ppm), not to be exceeded in a calendar year. The annual arithmetic mean 
shall be rounded to three decimal places (fractional parts equal to or 
greater than 0.0005 ppm shall be rounded up).
    (b) The level of the 24-hour standard is 0.14 parts per million 
(ppm), not to be exceeded more than once per calendar year. The 24-hour 
averages shall be determined from successive nonoverlapping 24-hour 
blocks starting at midnight each calendar day and shall be rounded to 
two decimal places (fractional parts equal to or greater than 0.005 ppm 
shall be rounded up).
    (c) Sulfur oxides shall be measured in the ambient air as sulfur 
dioxide by the reference method described in appendix A to this part or 
by an equivalent method designated in accordance with part 53 of this 
chapter.
    (d) To demonstrate attainment, the annual arithmetic mean and the 
second-highest 24-hour averages must be based upon hourly data that are 
at least 75 percent complete in each calendar quarter. A 24-hour block 
average shall be considered valid if at least 75 percent of the hourly 
averages for the 24-hour period are available. In the event that only 
18, 19, 20, 21, 22, or 23 hourly averages are available, the 24-hour 
block average shall be computed as the sum of the available hourly 
averages using 18, 19, etc. as the divisor. If fewer than 18 hourly 
averages are available, but the 24-hour average would exceed the level 
of the standard when zeros are substituted for the missing values, 
subject to the rounding rule of paragraph (b) of this section, then this 
shall be considered a valid 24-hour average. In this case, the 24-hour 
block average shall be computed as the sum of the available hourly 
averages divided by 24.

[61 FR 25579, May 22, 1996]



Sec. 50.5  National secondary ambient air quality standard for sulfur oxides (sulfur dioxide).

    (a) The level of the 3-hour standard is 0.5 parts per million (ppm), 
not to be exceeded more than once per calendar year. The 3-hour averages 
shall be determined from successive nonoverlapping 3-hour blocks 
starting at midnight each calendar day and shall be rounded to 1 decimal 
place (fractional parts equal to or greater than 0.05 ppm shall be 
rounded up).
    (b) Sulfur oxides shall be measured in the ambient air as sulfur 
dioxide by the reference method described in appendix

[[Page 652]]

A of this part or by an equivalent method designated in accordance with 
Part 53 of this chapter.
    (c) To demonstrate attainment, the second-highest 3-hour average 
must be based upon hourly data that are at least 75 percent complete in 
each calendar quarter. A 3-hour block average shall be considered valid 
only if all three hourly averages for the 3-hour period are available. 
If only one or two hourly averages are available, but the 3-hour average 
would exceed the level of the standard when zeros are substituted for 
the missing values, subject to the rounding rule of paragraph (a) of 
this section, then this shall be considered a valid 3-hour average. In 
all cases, the 3-hour block average shall be computed as the sum of the 
hourly averages divided by 3.

[61 FR 25580, May 22, 1996]



Sec. 50.6   National primary and secondary ambient air quality standards for particulate matter.

    (a) The level of the national primary and secondary 24-hour ambient 
air quality standards for particulate matter is 150 micrograms per cubic 
meter (g/m\3\), 24-hour average concentration. The standards 
are attained when the expected number of days per calendar year with a 
24-hour average concentration above 150 g/m\3\, as determined 
in accordance with appendix K to this part, is equal to or less than 
one.
    (b) The level of the national primary and secondary annual standards 
for particulate matter is 50 micrograms per cubic meter (g/
m\3\), annual arithmetic mean. The standards are attained when the 
expected annual arithmetic mean concentration, as determined in 
accordance with appendix K to this part, is less than or equal to 50 
g/m\3\.
    (c) For the purpose of determining attainment of the primary and 
secondary standards, particulate matter shall be measured in the ambient 
air as PM10 (particles with an aerodynamic diameter less than or 
equal to a nominal 10 micrometers) by:
    (1) A reference method based on appendix J and designated in 
accordance with part 53 of this chapter, or
    (2) An equivalent method designated in accordance with part 53 of 
this chapter.

[52 FR 24663, July 1, 1987]
Sec. 50.7  [Reserved]



Sec. 50.8  National primary ambient air quality standards for carbon monoxide.

    (a) The national primary ambient air quality standards for carbon 
monoxide are:
    (1) 9 parts per million (10 milligrams per cubic meter) for an 8-
hour average concentration not to be exceeded more than once per year 
and
    (2) 35 parts per million (40 milligrams per cubic meter) for a 1-
hour average concentration not to be exceeded more than once per year.
    (b) The levels of carbon monoxide in the ambient air shall be 
measured by:
    (1) A reference method based on appendix C and designated in 
accordance with part 53 of this chapter, or
    (2) An equivalent method designated in accordance with part 53 of 
this chapter.
    (c) An 8-hour average shall be considered valid if at least 75 
percent of the hourly average for the 8-hour period are available. In 
the event that only six (or seven) hourly averages are available, the 8-
hour average shall be computed on the basis of the hours available using 
six (or seven) as the divisor.
    (d) When summarizing data for comparision with the standards, 
averages shall be stated to one decimal place. Comparison of the data 
with the levels of the standards in parts per million shall be made in 
terms of integers with fractional parts of 0.5 or greater rounding up.

[50 FR 37501, Sept. 13, 1985]



Sec. 50.9   National primary and secondary ambient air quality standards for ozone.

    (a) The level of the national primary and secondary ambient air 
quality standards for ozone measured by a reference method based on 
appendix D to this part and designated in accordance with part 53 of 
this chapter, is 0.12 part per million (235 g/m3). The 
standard is attained when the expected number of

[[Page 653]]

days per calendar year with maximum hourly average concentrations above 
0.12 part per million (235 g/m3) is equal to or less than 
1, as determined by appendix H.

(Secs. 109 and 301 of the Clean Air Act, as amended (42 U.S.C. 7409, 
7601))

[44 FR 8220, Feb. 8, 1979]
Sec. 50.10  [Reserved]



Sec. 50.11  National primary and secondary ambient air quality standards for nitrogen dioxide.

    (a) The level of the national primary ambient air quality standard 
for nitrogen dioxide is 0.053 parts per million (100 micrograms per 
cubic meter), annual arithmetic mean concentration.
    (b) The level of national secondary ambient air quality standard for 
nitrogen dioxide is 0.053 parts per million (100 micrograms per cubic 
meter), annual arithmetic mean concentration.
    (c) The levels of the standards shall be measured by:
    (1) A reference method based on appendix F and designated in 
accordance with part 53 of this chapter, or
    (2) An equivalent method designated in accordance with part 53 of 
this chapter.
    (d) The standards are attained when the annual arithmetic mean 
concentration in a calendar year is less than or equal to 0.053 ppm, 
rounded to three decimal places (fractional parts equal to or greater 
than 0.0005 ppm must be rounded up). To demonstrate attainment, an 
annual mean must be based upon hourly data that are at least 75 percent 
complete or upon data derived from manual methods that are at least 75 
percent complete for the scheduled sampling days in each calendar 
quarter.

[50 FR 25544, June 19, 1985]



Sec. 50.12  National primary and secondary ambient air quality standards for lead.

    National primary and secondary ambient air quality standards for 
lead and its compounds, measured as elemental lead by a reference method 
based on appendix G to this part, or by an equivalent method, are: 1.5 
micrograms per cubic meter, maximum arithmetic mean averaged over a 
calendar quarter.

(Secs. 109, 301(a) Clean Air Act as amended (42 U.S.C. 7409, 7601(a)))

[43 FR 46258, Oct. 5, 1978]

Appendix A to Part 50--Reference Method for the Determination of Sulfur 
            Dioxide in the Atmosphere (Pararosaniline Method)

    1.0  Applicability.
    1.1  This method provides a measurement of the concentration of 
sulfur dioxide (SO2) in ambient air for determining compliance with 
the primary and secondary national ambient air quality standards for 
sulfur oxides (sulfur dioxide) as specified in Sec. 50.4 and Sec. 50.5 
of this chapter. The method is applicable to the measurement of ambient 
SO2 concentrations using sampling periods ranging from 30 minutes 
to 24 hours. Additional quality assurance procedures and guidance are 
provided in part 58, Appendixes A and B, of this chapter and in 
references 1 and 2.
    2.0  Principle.
    2.1  A measured volume of air is bubbled through a solution of 0.04 
M potassium tetrachloromercurate (TCM). The SO2 present in the air 
stream reacts with the TCM solution to form a stable 
monochlorosulfonatomercurate(3) complex. Once formed, this complex 
resists air oxidation(4, 5) and is stable in the presence of strong 
oxidants such as ozone and oxides of nitrogen. During subsequent 
analysis, the complex is reacted with acid-bleached pararosaniline dye 
and formaldehyde to form an intensely colored pararosaniline methyl 
sulfonic acid.(6) The optical density of this species is determined 
spectrophotometrically at 548 nm and is directly related to the amount 
of SO2 collected. The total volume of air sampled, corrected to EPA 
reference conditions (25 deg. C, 760 mm Hg [101 kPa]), is determined 
from the measured flow rate and the sampling time. The concentration of 
SO2 in the ambient air is computed and expressed in micrograms per 
standard cubic meter (g/std m3).
    3.0  Range.
    3.1  The lower limit of detection of SO2 in 10 mL of TCM is 
0.75 g (based on collaborative test results).(7) This 
represents a concentration of 25 g SO2/m3 (0.01 ppm) 
in an air sample of 30 standard liters (short-term sampling) and a 
concentration of 13 g SO2/m3 (0.005 ppm) in an air 
sample of 288 standard liters (long-term sampling). Concentrations less 
than 25 g SO2/m3 can be measured by sampling larger 
volumes of ambient air; however, the collection efficiency falls off 
rapidly at low concentrations.(8, 9) Beer's law is adhered to up to 34 
g of SO2 in 25 mL of final solution. This upper limit of 
the analysis range represents a concentration of

[[Page 654]]

1,130 g SO2/m3 (0.43 ppm) in an air sample of 30 
standard liters and a concentration of 590 g SO2/m3 
(0.23 ppm) in an air sample of 288 standard liters. Higher 
concentrations can be measured by collecting a smaller volume of air, by 
increasing the volume of absorbing solution, or by diluting a suitable 
portion of the collected sample with absorbing solution prior to 
analysis.
    4.0  Interferences.
    4.1  The effects of the principal potential interferences have been 
minimized or eliminated in the following manner: Nitrogen oxides by the 
addition of sulfamic acid,(10, 11) heavy metals by the addition of 
ethylenediamine tetracetic acid disodium salt (EDTA) and phosphoric 
acid,(10, 12) and ozone by time delay.(10) Up to 60 g Fe (III), 
22 g V (V), 10 g Cu (II), 10 g Mn (II), and 
10 g Cr (III) in 10 mL absorbing reagent can be tolerated in 
the procedure.(10) No significant interference has been encountered with 
2.3 g NH3.(13)
    5.0  Precision and Accuracy.
    5.1  The precision of the analysis is 4.6 percent (at the 95 percent 
confidence level) based on the analysis of standard sulfite samples.(10)
    5.2 Collaborative test results (14) based on the analysis of 
synthetic test atmospheres (SO2 in scrubbed air) using the 24-hour 
sampling procedure and the sulfite-TCM calibration procedure show that:

 The replication error varies linearly with concentration from 
2.5 g/m\3\ at concentrations of 100 g/m\3\ 
to 7 g/m\3\ at concentrations of 400 g/
m\3\.
 The day-to-day variability within an individual laboratory 
(repeatability) varies linearly with concentration from 18.1 
g/m\3\ at levels of 100 g/m\3\ to 50.9 
g/m\3\ at levels of 400 g/m\3\.
 The day-to-day variability between two or more laboratories 
(reproducibility) varies linearly with concentration from 
36.9 g/m\3\ at levels of 100 g/m\3\ to 
103.5 g/m\3\ at levels of 400 g/m\3\.
 The method has a concentration-dependent bias, which becomes 
significant at the 95 percent confidence level at the high concentration 
level. Observed values tend to be lower than the expected SO2 
concentration level.

    6.0  Stability.
    6.1  By sampling in a controlled temperature environment of 
15 deg.10 deg. C, greater than 98.9 percent of the SO2-
TCM complex is retained at the completion of sampling. (15) If kept at 
5 deg. C following the completion of sampling, the collected sample has 
been found to be stable for up to 30 days.(10) The presence of EDTA 
enhances the stability of SO2 in the TCM solution and the rate of 
decay is independent of the concentration of SO2.(16)
    7.0  Apparatus.
    7.1  Sampling.
    7.1.1  Sample probe: A sample probe meeting the requirements of 
section 7 of 40 CFR part 58, appendix E (Teflon or glass with 
residence time less than 20 sec.) is used to transport ambient air to 
the sampling train location. The end of the probe should be designed or 
oriented to preclude the sampling of precipitation, large particles, 
etc. A suitable probe can be constructed from Teflon tubing 
connected to an inverted funnel.
    7.1.2  Absorber--short-term sampling: An all glass midget impinger 
having a solution capacity of 30 mL and a stem clearance of 
41 mm from the bottom of the vessel is used for sampling 
periods of 30 minutes and 1 hour (or any period considerably less than 
24 hours). Such an impinger is shown in Figure 1. These impingers are 
commercially available from distributors such as Ace Glass, 
Incorporated.
    7.1.3  Absorber--24-hour sampling: A polypropylene tube 32 mm in 
diameter and 164 mm long (available from Bel Art Products, Pequammock, 
NJ) is used as the absorber. The cap of the absorber must be a 
polypropylene cap with two ports (rubber stoppers are unacceptable 
because the absorbing reagent can react with the stopper to yield 
erroneously high SO2 concentrations). A glass impinger stem, 6 mm 
in diameter and 158 mm long, is inserted into one port of the absorber 
cap. The tip of the stem is tapered to a small diameter orifice 
(0.40.1 mm) such that a No. 79 jeweler's drill bit will pass 
through the opening but a No. 78 drill bit will not. Clearance from the 
bottom of the absorber to the tip of the stem must be 62 mm. 
Glass stems can be fabricated by any reputable glass blower or can be 
obtained from a scientific supply firm. Upon receipt, the orifice test 
should be performed to verify the orifice size. The 50 mL volume level 
should be permanently marked on the absorber. The assembled absorber is 
shown in Figure 2.
    7.1.4  Moisture trap: A moisture trap constructed of a glass trap as 
shown in Figure 1 or a polypropylene tube as shown in Figure 2 is placed 
between the absorber tube and flow control device to prevent entrained 
liquid from reaching the flow control device. The tube is packed with 
indicating silica gel as shown in Figure 2. Glass wool may be 
substituted for silica gel when collecting short-term samples (1 hour or 
less) as shown in Figure 1, or for long term (24 hour) samples if flow 
changes are not routinely encountered.
    7.1.5  Cap seals: The absorber and moisture trap caps must seal 
securely to prevent leaks during use. Heat-shrink material as shown in 
Figure 2 can be used to retain the cap seals if there is any chance of 
the caps coming loose during sampling, shipment, or storage.

[[Page 655]]





[[Page 656]]





[[Page 657]]

    7.1.6  Flow control device: A calibrated rotameter and needle valve 
combination capable of maintaining and measuring air flow to within 
2 percent is suitable for short-term sampling but may not be 
used for long-term sampling. A critical orifice can be used for 
regulating flow rate for both long-term and short-term sampling. A 22-
gauge hypodermic needle 25 mm long may be used as a critical orifice to 
yield a flow rate of approximately 1 L/min for a 30-minute sampling 
period. When sampling for 1 hour, a 23-gauge hypodermic needle 16 mm in 
length will provide a flow rate of approximately 0.5 L/min. Flow control 
for a 24-hour sample may be provided by a 27-gauge hypodermic needle 
critical orifice that is 9.5 mm in length. The flow rate should be in 
the range of 0.18 to 0.22 L/min.
    7.1.7  Flow measurement device: Device calibrated as specified in 
9.4.1 and used to measure sample flow rate at the monitoring site.
    7.1.8  Membrane particle filter: A membrane filter of 0.8 to 2 
m porosity is used to protect the flow controller from 
particles during long-term sampling. This item is optional for short-
term sampling.
    7.1.9  Vacuum pump: A vacuum pump equipped with a vacuum gauge and 
capable of maintaining at least 70 kPa (0.7 atm) vacuum differential 
across the flow control device at the specified flow rate is required 
for sampling.
    7.1.10  Temperature control device: The temperature of the absorbing 
solution during sampling must be maintained at 15 deg. 
10 deg. C. As soon as possible following sampling and until 
analysis, the temperature of the collected sample must be maintained at 
5 deg. 5 deg. C. Where an extended period of time may elapse 
before the collected sample can be moved to the lower storage 
temperature, a collection temperature near the lower limit of the 15 
 10 deg. C range should be used to minimize losses during 
this period. Thermoelectric coolers specifically designed for this 
temperature control are available commercially and normally operate in 
the range of 5 deg. to 15 deg. C. Small refrigerators can be modified to 
provide the required temperature control; however, inlet lines must be 
insulated from the lower temperatures to prevent condensation when 
sampling under humid conditions. A small heating pad may be necessary 
when sampling at low temperatures (<7 deg. C) to prevent the absorbing 
solution from freezing.(17)
    7.1.11  Sampling train container: The absorbing solution must be 
shielded from light during and after sampling. Most commercially 
available sampler trains are enclosed in a light-proof box.
    7.1.12  Timer: A timer is recommended to initiate and to stop 
sampling for the 24-hour period. The timer is not a required piece of 
equipment; however, without the timer a technician would be required to 
start and stop the sampling manually. An elapsed time meter is also 
recommended to determine the duration of the sampling period.
    7.2  Shipping.
    7.2.1  Shipping container: A shipping container that can maintain a 
temperature of 5 deg. 5 deg. C is used for transporting the 
sample from the collection site to the analytical laboratory. Ice 
coolers or refrigerated shipping containers have been found to be 
satisfactory. The use of eutectic cold packs instead of ice will give a 
more stable temperature control. Such equipment is available from Cole-
Parmer Company, 7425 North Oak Park Avenue, Chicago, IL 60648.
    7.3  Analysis.
    7.3.1  Spectrophotometer: A spectrophotometer suitable for 
measurement of absorbances at 548 nm with an effective spectral 
bandwidth of less than 15 nm is required for analysis. If the 
spectrophotometer reads out in transmittance, convert to absorbance as 
follows:

A=log10(1/T)                            (1)

where:
A=absorbance, and
T=transmittance (01 deg. C. Both 
calibration and sample analysis must be performed under identical 
conditions (within 1 deg. C). Adequate temperature control may be 
obtained by means of constant temperature baths, water baths with manual 
temperature control, or temperature controlled rooms.
    7.3.4  Glassware: Class A volumetric glassware of various capacities 
is required for preparing and standardizing reagents and standards and 
for dispensing solutions during analysis. These included pipets, 
volumetric flasks, and burets.
    7.3.5  TCM waste receptacle: A glass waste receptacle is required 
for the storage of spent TCM solution. This vessel should be stoppered 
and stored in a hood at all times.
    8.0  Reagents.
    8.1  Sampling.
    8.1.1  Distilled water: Purity of distilled water must be verified 
by the following procedure:(18)


[[Page 658]]


 Place 0.20 mL of potassium permanganate solution (0.316 g/L), 
500 mL of distilled water, and 1mL of concentrated sulfuric acid in a 
chemically resistant glass bottle, stopper the bottle, and allow to 
stand.
 If the permanganate color (pink) does not disappear completely 
after a period of 1 hour at room temperature, the water is suitable for 
use.
 If the permanganate color does disappear, the water can be 
purified by redistilling with one crystal each of barium hydroxide and 
potassium permanganate in an all glass still.

    8.1.2  Absorbing reagent (0.04 M potassium tetrachloromercurate 
[TCM]): Dissolve 10.86 g mercuric chloride, 0.066 g EDTA, and 6.0 g 
potassium chloride in distilled water and dilute to volume with 
distilled water in a 1,000-mL volumetric flask. (Caution: Mercuric 
chloride is highly poisonous. If spilled on skin, flush with water 
immediately.) The pH of this reagent should be between 3.0 and 5.0 (10) 
Check the pH of the absorbing solution by using pH indicating paper or a 
pH meter. If the pH of the solution is not between 3.0 and 5.0, dispose 
of the solution according to one of the disposal techniques described in 
Section 13.0. The absorbing reagent is normally stable for 6 months. If 
a precipitate forms, dispose of the reagent according to one of the 
procedures described in Section 13.0.
    8.2  Analysis.
    8.2.1  Sulfamic acid (0.6%): Dissolve 0.6 g sulfamic acid in 100 mL 
distilled water. Perpare fresh daily.
    8.2.2  Formaldehyde (0.2%): Dilute 5 mL formaldehyde solution (36 to 
38 percent) to 1,000 mL with distilled water. Prepare fresh daily.
    8.2.3  Stock iodine solution (0.1 N): Place 12.7 g resublimed iodine 
in a 250-mL beaker and add 40 g potassium iodide and 25 mL water. Stir 
until dissolved, transfer to a 1,000 mL volumetric flask and dilute to 
volume with distilled water.
    8.2.4  Iodine solution (0.01 N): Prepare approximately 0.01 N iodine 
solution by diluting 50 mL of stock iodine solution (Section 8.2.3) to 
500 mL with distilled water.
    8.2.5  Starch indicator solution: Triturate 0.4 g soluble starch and 
0.002 g mercuric iodide (preservative) with enough distilled water to 
form a paste. Add the paste slowly to 200 mL of boiling distilled water 
and continue boiling until clear. Cool and transfer the solution to a 
glass stopperd bottle.
    8.2.6  1 N hydrochloric acid: Slowly and while stirring, add 86 mL 
of concentrated hydrochloric acid to 500 mL of distilled water. Allow to 
cool and dilute to 1,000 mL with distilled water.
    8.2.7  Potassium iodate solution: Accurately weigh to the nearest 
0.1 mg, 1.5 g (record weight) of primary standard grade potassium iodate 
that has been previously dried at 180 deg. C for at least 3 hours and 
cooled in a dessicator. Dissolve, then dilute to volume in a 500-mL 
volumetric flask with distilled water.
    8.2.8  Stock sodium thiosulfate solution (0.1 N): Prepare a stock 
solution by dissolving 25 g sodium thiosulfate 
(Na2S2O35H2O) in 1,000 mL freshly boiled, 
cooled, distilled water and adding 0.1 g sodium carbonate to the 
solution. Allow the solution to stand at least 1 day before 
standardizing. To standardize, accurately pipet 50 mL of potassium 
iodate solution (Section 8.2.7) into a 500-mL iodine flask and add 2.0 g 
of potassium iodide and 10 mL of 1 N HCl. Stopper the flask and allow to 
stand for 5 minutes. Titrate the solution with stock sodium thiosulfate 
solution (Section 8.2.8) to a pale yellow color. Add 5 mL of starch 
solution (Section 8.2.5) and titrate until the blue color just 
disappears. Calculate the normality (Ns) of the stock sodium 
thiosulfate solution as follows:


                                               W                        
                                     NS =     ----     x  2.80       (2)
                                               M                        
                                                                        

where:

M=volume of thiosulfate required in mL, and
W=weight of potassium iodate in g (recorded weight in Section 8.2.7).


                    103(conversion of g to mg)                          
                    x 0.1(fraction iodate used)                         
2.80=                  --------------------                             
           35.67(equivalent weight of potassium iodate)                 
                                                                        

    8.2.9  Working sodium thiosulfate titrant (0.01 N): Accurately pipet 
100 mL of stock sodium thiosulfate solution (Section 8.2.8) into a 
1,000-mL volumetric flask and dilute to volume with freshly boiled, 
cooled, distilled water. Calculate the normality of the working sodium 
thiosulfate titrant (NT) as follows:

      NT=NS x 0.100                        (3)

    8.2.10  Standardized sulfite solution for the preparation of working 
sulfite-TCM solution: Dissolve 0.30 g sodium metabisulfite 
(Na2S2O5) or 0.40 g sodium sulfite (Na2SO3) in 
500 mL of recently boiled, cooled, distilled water. (Sulfite solution is 
unstable; it is therefore important to use water of the highest purity 
to minimize this instability.) This solution contains the equivalent of 
320 to 400 g SO2/mL. The actual concentration of the 
solution is determined by adding excess iodine and back-titrating with 
standard sodium thiosulfate solution. To back-titrate, pipet 50 mL of 
the 0.01 N iodine solution (Section 8.2.4) into each of two 500-mL 
iodine flasks (A and B). To flask A (blank) add 25 mL distilled water, 
and to flask B (sample) pipet 25 mL sulfite solution. Stopper the

[[Page 659]]

flasks and allow to stand for 5 minutes. Prepare the working sulfite-TCM 
solution (Section 8.2.11) immediately prior to adding the iodine 
solution to the flasks. Using a buret containing standardized 0.01 N 
thiosulfate titrant (Section 8.2.9), titrate the solution in each flask 
to a pale yellow color. Then add 5 mL starch solution (Section 8.2.5) 
and continue the titration until the blue color just disappears.
    8.2.11  Working sulfite-TCM solution: Accurately pipet 5 mL of the 
standard sulfite solution (Section 8.2.10) into a 250-mL volumetric 
flask and dilute to volume with 0.04 M TCM. Calculate the concentration 
of sulfur dioxide in the working solution as follows:

                 CTCM/SO2(g SO2/mL)=


                                   (A-B)(NT)(32,000)                    
                               ........................   x  0.02    (4)
                                          25                            
                                                                        

where:

A=volume of thiosulfate titrant required for the blank, mL;
B=volume of thiosulfate titrant required for the sample, mL;
NT=normality of the thiosulfate titrant, from equation (3);
32,000=milliequivalent weight of SO2, g;
25=volume of standard sulfite solution, mL; and
0.02=dilution factor.

    This solution is stable for 30 days if kept at 5 deg. C.(16) If not 
kept at 5 deg. C, prepare fresh daily.
    8.2.12  Purified pararosaniline (PRA) stock solution (0.2% nominal):
    8.2.12.1  Dye specifications--

 The dye must have a maximum absorbance at a wavelength of 540 
nm when assayed in a buffered solution of 0.1 M sodium acetate-acetic 
acid;
 The absorbance of the reagent blank, which is temperature 
sensitive (0.015 absorbance unit/ deg. C), must not exceed 0.170 at 
22 deg. C with a 1-cm optical path length when the blank is prepared 
according to the specified procedure;
 The calibration curve (Section 10.0) must have a slope equal to 
0.0300.002 absorbance unit/g SO2 with a 1-cm 
optical path length when the dye is pure and the sulfite solution is 
properly standardized.

    8.2.12.2  Preparation of stock PRA solution--A specially purified 
(99 to 100 percent pure) solution of pararosaniline, which meets the 
above specifications, is commercially available in the required 0.20 
percent concentration (Harleco Co.). Alternatively, the dye may be 
purified, a stock solution prepared, and then assayed according to the 
procedure as described below.(10)
    8.2.12.3  Purification procedure for PRA--
    1. Place 100 mL each of 1-butanol and 1 N HCl in a large separatory 
funnel (250-mL) and allow to equilibrate. Note: Certain batches of 1-
butanol contain oxidants that create an SO2 demand. Before using, 
check by placing 20 mL of 1-butanol and 5 mL of 20 percent potassium 
iodide (KI) solution in a 50-mL separatory funnel and shake thoroughly. 
If a yellow color appears in the alcohol phase, redistill the 1-butanol 
from silver oxide and collect the middle fraction or purchase a new 
supply of 1-butanol.
    2. Weigh 100 mg of pararosaniline hydrochloride dye (PRA) in a small 
beaker. Add 50 mL of the equilibrated acid (drain in acid from the 
bottom of the separatory funnel in 1.) to the beaker and let stand for 
several minutes. Discard the remaining acid phase in the separatory 
funnel.
    3. To a 125-mL separatory funnel, add 50 mL of the equilibrated 1-
butanol (draw the 1-butanol from the top of the separatory funnel in 
1.). Transfer the acid solution (from 2.) containing the dye to the 
funnel and shake carefully to extract. The violet impurity will transfer 
to the organic phase.
    4. Transfer the lower aqueous phase into another separatory funnel, 
add 20 mL of equilibrated 1-butanol, and extract again.
    5. Repeat the extraction procedure with three more 10-mL portions of 
equilibrated 1-butanol.
    6. After the final extraction, filter the acid phase through a 
cotton plug into a 50-mL volumetric flask and bring to volume with 1 N 
HCl. This stock reagent will be a yellowish red.
    7. To check the purity of the PRA, perform the assay and adjustment 
of concentration (Section 8.2.12.4) and prepare a reagent blank (Section 
11.2); the absorbance of this reagent blank at 540 nm should be less 
than 0.170 at 22 deg. C. If the absorbance is greater than 0.170 under 
these conditions, further extractions should be performed.
    8.2.12.4  PRA assay procedure--The concentration of pararosaniline 
hydrochloride (PRA) need be assayed only once after purification. It is 
also recommended that commercial solutions of pararosaniline be assayed 
when first purchased. The assay procedure is as follows:(10)
    1. Prepare 1 M acetate-acetic acid buffer stock solution with a pH 
of 4.79 by dissolving 13.61 g of sodium acetate trihydrate in distilled 
water in a 100-mL volumetric flask. Add 5.70 mL of glacial acetic acid 
and dilute to volume with distilled water.
    2. Pipet 1 mL of the stock PRA solution obtained from the 
purification process or from a commercial source into a 100-mL 
volumetric flask and dilute to volume with distilled water.
    3. Transfer a 5-mL aliquot of the diluted PRA solution from 2. into 
a 50-mL volumetric flask. Add 5mL of 1 M acetate-acetic acid buffer 
solution from 1. and dilute the

[[Page 660]]

mixture to volume with distilled water. Let the mixture stand for 1 
hour.
    4. Measure the absorbance of the above solution at 540 nm with a 
spectrophotometer against a distilled water reference. Compute the 
percentage of nominal concentration of PRA by

                                                                  A x K                                         
                                                 % PRA =         --------                                    (5)
                                                                    W                                           
                                                                                                                

where:

A=measured absorbance of the final mixture (absorbance units);
W=weight in grams of the PRA dye used in the assay to prepare 50 mL of 
          stock solution (for example, 0.100 g of dye was used to 
          prepare 50 mL of solution in the purification procedure; when 
          obtained from commercial sources, use the stated concentration 
          to compute W; for 98% PRA, W=.098 g.); and
K=21.3 for spectrophotometers having a spectral bandwidth of less than 
          15 nm and a path length of 1 cm.

    8.2.13   Pararosaniline reagent: To a 250-mL volumetric flask, add 
20 mL of stock PRA solution. Add an additional 0.2 mL of stock solution 
for each percentage that the stock assays below 100 percent. Then add 25 
mL of 3 M phosphoric acid and dilute to volume with distilled water. The 
reagent is stable for at least 9 months. Store away from heat and light.
    9.0   Sampling Procedure.
    9.1   General Considerations. Procedures are described for short-
term sampling (30-minute and 1-hour) and for long-term sampling (24-
hour). Different combinations of absorbing reagent volume, sampling 
rate, and sampling time can be selected to meet special needs. For 
combinations other than those specifically described, the conditions 
must be adjusted so that linearity is maintained between absorbance and 
concentration over the dynamic range. Absorbing reagent volumes less 
than 10 mL are not recommended. The collection efficiency is above 98 
percent for the conditions described; however, the efficiency may be 
substantially lower when sampling concentrations below 
25SO2/m\3\.(8,9)
    9.2  30-Minute and 1-Hour Sampling. Place 10 mL of TCM absorbing 
reagent in a midget impinger and seal the impinger with a thin film of 
silicon stopcock grease (around the ground glass joint). Insert the 
sealed impinger into the sampling train as shown in Figure 1, making 
sure that all connections between the various components are leak tight. 
Greaseless ball joint fittings, heat shrinkable Teflon tubing, 
or Teflon tube fittings may be used to attain leakfree 
conditions for portions of the sampling train that come into contact 
with air containing SO2. Shield the absorbing reagent from direct 
sunlight by covering the impinger with aluminum foil or by enclosing the 
sampling train in a light-proof box. Determine the flow rate according 
to Section 9.4.2. Collect the sample at 10.10 L/min for 30-
minute sampling or 0.5000.05 L/min for 1-hour sampling. 
Record the exact sampling time in minutes, as the sample volume will 
later be determined using the sampling flow rate and the sampling time. 
Record the atmospheric pressure and temperature.
    9.3  24-Hour Sampling. Place 50 mL of TCM absorbing solution in a 
large absorber, close the cap, and, if needed, apply the heat shrink 
material as shown in Figure 3. Verify that the reagent level is at the 
50 mL mark on the absorber. Insert the sealed absorber into the sampling 
train as shown in Figure 2. At this time verify that the absorber 
temperature is controlled to 1510 deg. C. During sampling, 
the absorber temperature must be controlled to prevent decomposition of 
the collected complex. From the onset of sampling until analysis, the 
absorbing solution must be protected from direct sunlight. Determine the 
flow rate according to Section 9.4.2. Collect the sample for 24 hours 
from midnight to midnight at a flow rate of 0.2000.020 L/
min. A start/stop timer is helpful for initiating and stopping sampling 
and an elapsed time meter will be useful for determining the sampling 
time.

[[Page 661]]




    9.4  Flow Measurement.
    9.4.1  Calibration: Flow measuring devices used for the on-site flow 
measurements required in 9.4.2 must be calibrated against a reliable 
flow or volume standard such as an NBS traceable bubble flowmeter or 
calibrated wet test meter. Rotameters or critical orifices used in the 
sampling train may be calibrated, if desired, as a quality control 
check, but such calibration shall not replace the on-site flow 
measurements required by 9.4.2. In-line rotameters, if they are to be 
calibrated, should be calibrated in situ, with the appropriate volume of 
solution in the absorber.
    9.4.2  Determination of flow rate at sampling site: For short-term 
samples, the standard flow rate is determined at the sampling site at 
the initiation and completion of sample collection with a calibrated 
flow measuring device connected to the inlet of the absorber. For 24-
hour samples, the standard flow rate is determined at the time the 
absorber is placed in the sampling train and again when the absorber is 
removed from the train for shipment to the analytical laboratory with a 
calibrated flow measuring device connected to the inlet of the sampling 
train. The flow rate determination must be made with all components of 
the sampling system in operation (e.g., the absorber temperature 
controller and any sample box heaters must also be operating). Equation 
6 may be used to determine the standard flow rate when a calibrated 
positive displacement meter is used as the flow measuring device. Other 
types of calibrated flow measuring devices may also be used to determine 
the flow rate at the sampling site provided that the user applies any 
appropriate corrections to devices for which output is dependent on 
temperature or pressure.

[[Page 662]]



                                                                        Pb-(1-RH) Ph2o                          
                                            Qstd = Qact  x           --------------------                       
                                                                             Pstd                               
                                                                                                                



                                                                        
                                       298.16............               
                                  x  ----------------....            (6)
                                   (Tmeter+273.16).......               
                                                                        

where:

Qstd=flow rate at standard conditions, std L/min (25 deg. C and 760 
          mm Hg);
Qact=flow rate at monitoring site conditions, L/min;
Pb=barometric pressure at monitoring site conditions, mm Hg or kPa;
RH=fractional relative humidity of the air being measured;
PH2O=vapor pressure of water at the temperature of the air in 
          the flow or volume standard, in the same units as Pb, 
          (for wet volume standards only, i.e., bubble flowmeter or wet 
          test meter; for dry standards, i.e., dry test meter, 
          PH2O=0);
Pstd=standard barometric pressure, in the same units as Pb 
          (760 mm Hg or 101 kPa); and
Tmeter=temperature of the air in the flow or volume standard, 
          deg.C (e.g., bubble flowmeter).

    If a barometer is not available, the following equation may be used 
to determine the barometric pressure:


                   Pb=760-.076(H) mm Hg,      or                        
                                                                        
                          Pb=101-.01(H)kPa                           (7)
                                                                        

where:

H=sampling site elevation above sea level in meters.

    If the initial flow rate (Qi) differs from the flow rate of the 
critical orifice or the flow rate indicated by the flowmeter in the 
sampling train (Qc) by more than 5 percent as determined by 
equation (8), check for leaks and redetermine Qi.

                                                 Qi-Qc                  
                                   % Diff =     --------     x  100  (8)
                                                   Qc                   
                                                                        

    Invalidate the sample if the difference between the initial 
(Qi) and final (Qf) flow rates is more than 5 percent as 
determined by equation (9):


                                                 Qi-Qf                  
                                   % Diff =     --------     x  100  (9)
                                                   Qf                   
                                                                        

    9.5  Sample Storage and Shipment. Remove the impinger or absorber 
from the sampling train and stopper immediately. Verify that the 
temperature of the absorber is not above 25 deg. C. Mark the level of 
the solution with a temporary (e.g., grease pencil) mark. If the sample 
will not be analyzed within 12 hours of sampling, it must be stored at 
5 deg. 5 deg. C until analysis. Analysis must occur within 
30 days. If the sample is transported or shipped for a period exceeding 
12 hours, it is recommended that thermal coolers using eutectic ice 
packs, refrigerated shipping containers, etc., be used for periods up to 
48 hours. (17) Measure the temperature of the absorber solution when the 
shipment is received. Invalidate the sample if the temperature is above 
10 deg. C. Store the sample at 5 deg. 5 deg. C until it is 
analyzed.
    10.0  Analytical Calibration.
    10.1  Spectrophotometer Cell Matching. If unmatched 
spectrophotometer cells are used, an absorbance correction factor must 
be determined as follows:
    1. Fill all cells with distilled water and designate the one that 
has the lowest absorbance at 548 nm as the reference. (This reference 
cell should be marked as such and continually used for this purpose 
throughout all future analyses.)
    2. Zero the spectrophotometer with the reference cell.
    3. Determine the absorbance of the remaining cells (Ac) in 
relation to the reference cell and record these values for future use. 
Mark all cells in a manner that adequately identifies the correction.
    The corrected absorbance during future analyses using each cell is 
determining as follows:

                            A=Aobs-Ac                               (10)
                                                                        

where:

A=corrected absorbance,
Aobs=uncorrected absorbance, and
Ac=cell correction.

    10.2  Static Calibration Procedure (Option 1). Prepare a dilute 
working sulfite-TCM solution by diluting 10 mL of the working sulfite-
TCM solution (Section 8.2.11) to 100 mL with TCM absorbing reagent. 
Following the table below, accurately pipet the indicated volumes of the 
sulfite-TCM solutions into a series of 25-mL volumetric flasks. Add TCM 
absorbing reagent as indicated to bring the volume in each flask to 10 
mL.

                                                                        
------------------------------------------------------------------------
                                        Volume of                Total  
                                         sulfite-  Volume of  g
         Sulfite-TCM solution              TCM      TCM, mL       SO2   
                                         solution              (approx.*
------------------------------------------------------------------------
Working...............................        4.0        6.0        28.8
Working...............................        3.0        7.0        21.6
Working...............................        2.0        8.0        14.4
Dilute working........................       10.0        0.0         7.2
Dilute working........................        5.0        5.0         3.6
                                              0.0       10.0        0.0 
------------------------------------------------------------------------
*Based on working sulfite-TCM solution concentration of 7.2 g  
  SO2/mL; the actual total g SO2 must be calculated using      
  equation 11 below.                                                    


[[Page 663]]

    To each volumetric flask, add 1 mL 0.6% sulfamic acid (Section 
8.2.1), accurately pipet 2 mL 0.2% formaldehyde solution (Section 
8.2.2), then add 5 mL pararosaniline solution (Section 8.2.13). Start a 
laboratory timer that has been set for 30 minutes. Bring all flasks to 
volume with recently boiled and cooled distilled water and mix 
thoroughly. The color must be developed (during the 30-minute period) in 
a temperature environment in the range of 20 deg. to 30 deg. C, which is 
controlled to plus-minus1 deg. C. For increased precision, a 
constant temperature bath is recommended during the color development 
step. After 30 minutes, determine the corrected absorbance of each 
standard at 548 nm against a distilled water reference (Section 10.1). 
Denote this absorbance as (A). Distilled water is used in the reference 
cell rather than the reagant blank because of the temperature 
sensitivity of the reagent blank. Calculate the total micrograms 
SO2 in each solution:

             g SO2=VTCM/SO2 x CTCM/SO2 x D                 (11)
                                                                        

where:

VTCM/SO2=volume of sulfite-TCM solution used, mL;
CTCM/SO2=concentration of sulfur dioxide in the working sulfite-
          TCM, g SO2/mL (from equation 4); and
D=dilution factor (D=1 for the working sulfite-TCM solution; D=0.1 for 
          the diluted working sulfite-TCM solution).

    A calibration equation is determined using the method of linear 
least squares (Section 12.1). The total micrograms SO2 contained in 
each solution is the x variable, and the corrected absorbance (eq. 10) 
associated with each solution is the y variable. For the calibration to 
be valid, the slope must be in the range of 0.030 plus-minus0.002 
absorbance unit/g SO2, the intercept as determined by the 
least squares method must be equal to or less than 0.170 absorbance unit 
when the color is developed at 22 deg. C (add 0.015 to this 0.170 
specification for each  deg.C above 22 deg. C) and the correlation 
coefficient must be greater than 0.998. If these criteria are not met, 
it may be the result of an impure dye and/or an improperly standardized 
sulfite-TCM solution. A calibration factor (Bs) is determined by 
calculating the reciprocal of the slope and is subsequently used for 
calculating the sample concentration (Section 12.3).
    10.3  Dynamic Calibration Procedures (Option 2). Atmospheres 
containing accurately known concentrations of sulfur dioxide are 
prepared using permeation devices. In the systems for generating these 
atmospheres, the permeation device emits gaseous SO2 at a known, 
low, constant rate, provided the temperature of the device is held 
constant (plus-minus0.1 deg. C) and the device has been accurately 
calibrated at the temperature of use. The SO2 permeating from the 
device is carried by a low flow of dry carrier gas to a mixing chamber 
where it is diluted with SO2-free air to the desired concentration 
and supplied to a vented manifold. A typical system is shown 
schematically in Figure 4 and this system and other similar systems have 
been described in detail by O'Keeffe and Ortman; (19) Scaringelli, Frey, 
and Saltzman, (20) and Scaringelli, O'Keeffe, Rosenberg, and Bell. (21) 
Permeation devices may be prepared or purchased and in both cases must 
be traceable either to a National Bureau of Standards (NBS) Standard 
Reference Material (SRM 1625, SRM 1626, SRM 1627) or to an NBS/EPA-
approved commercially available Certified Reference Material (CRM). 
CRM's are described in Reference 22, and a list of CRM sources is 
available from the address shown for Reference 22. A recommended 
protocol for certifying a permeation device to an NBS SRM or CRM is 
given in Section 2.0.7 of Reference 2. Device permeation rates of 0.2 to 
0.4 g/min, inert gas flows of about 50 mL/min, and dilution air 
flow rates from 1.1 to 15 L/min conveniently yield standard atmospheres 
in the range of 25 to 600 g SO2/m3 (0.010 to 0.230 
ppm).
    10.3.1  Calibration Option 2A (30-minute and 1-hour samples): 
Generate a series of six standard atmospheres of SO2 (e.g., 0, 50, 
100, 200, 350, 500, 750 g/m3) by adjusting the dilution 
flow rates appropriately. The concentration of SO2 in each 
atmosphere is calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.014

where:

Ca=concentration of SO2 at standard conditions, g/
          m3;
Pr=permeation rate, g/min;
Qd=flow rate of dilution air, std L/min; and
Qp=flow rate of carrier gas across permeation device, std L/min.

[[Page 664]]





[[Page 665]]

    Be sure that the total flow rate of the standard exceeds the flow 
demand of the sample train, with the excess flow vented at atmospheric 
pressure. Sample each atmosphere using similar apparatus as shown in 
Figure 1 and under the same conditions as field sampling (i.e., use same 
absorbing reagent volume and sample same volume of air at an equivalent 
flow rate). Due to the length of the sampling periods required, this 
method is not recommended for 24-hour sampling. At the completion of 
sampling, quantitatively transfer the contents of each impinger to one 
of a series of 25-mL volumetric flasks (if 10 mL of absorbing solution 
was used) using small amounts of distilled water for rinse (<5mL). If 
>10 mL of absorbing solution was used, bring the absorber solution in 
each impinger to orginal volume with distilled H2O and pipet 10-mL 
portions from each impinger into a series of 25-mL volumetric flasks. If 
the color development steps are not to be started within 12 hours of 
sampling, store the solutions at 5 deg.  5 deg. C. Calculate 
the total micrograms SO2 in each solution as follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.015

where:

Ca=concentration of SO2 in the standard atmosphere, 
          g/m\3\;
Os=sampling flow rate, std L/min;
t=sampling time, min;
Va=volume of absorbing solution used for color development (10 mL); 
          and
Vb=volume of absorbing solution used for sampling, mL.

    Add the remaining reagents for color development in the same manner 
as in Section 10.2 for static solutions. Calculate a calibration 
equation and a calibration factor (Bg) according to Section 10.2, 
adhering to all the specified criteria.
    10.3.2  Calibration Option 2B (24-hour samples): Generate a standard 
atmosphere containing approximately 1,050 g SO2/m\3\ and 
calculate the exact concentration according to equation 12. Set up a 
series of six absorbers according to Figure 2 and connect to a common 
manifold for sampling the standard atmosphere. Be sure that the total 
flow rate of the standard exceeds the flow demand at the sample 
manifold, with the excess flow vented at atmospheric pressure. The 
absorbers are then allowed to sample the atmosphere for varying time 
periods to yield solutions containing 0, 0.2, 0.6, 1.0, 1.4, 1.8, and 
2.2 g SO2/mL solution. The sampling times required to 
attain these solution concentrations are calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.016

where:

t=sampling time, min;
Vb=volume of absorbing solution used for sampling (50 mL);
Cs=desired concentration of SO2 in the absorbing solution, 
          g/mL;
Ca=concentration of the standard atmosphere calculated according to 
          equation 12, g/m\3\; and
Qs=sampling flow rate, std L/min.

    At the completion of sampling, bring the absorber solutions to 
original volume with distilled water. Pipet a 10-mL portion from each 
absorber into one of a series of 25-mL volumetric flasks. If the color 
development steps are not to be started within 12 hours of sampling, 
store the solutions at 5 deg.  5 deg. C. Add the remaining 
reagents for color development in the same manner as in Section 10.2 for 
static solutions. Calculate the total g SO2 in each 
standard as follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.017

where:

Va=volume of absorbing solution used for color development (10 mL).
All other parameters are defined in equation 14.

    Calculate a calibration equation and a calibration factor (Bt) 
according to Section 10.2 adhering to all the specified criteria.
    11.0  Sample Preparation and Analysis.
    11.1  Sample Preparation. Remove the samples from the shipping 
container. If the shipment period exceeded 12 hours from the completion 
of sampling, verify that the temperature is below 10 deg. C. Also, 
compare the solution level to the temporary level mark on the absorber. 
If either the temperature is above 10 deg. C or there was significant 
loss (more than 10 mL) of the sample during shipping, make an 
appropriate notation in the record and invalidate the sample. Prepare 
the samples for analysis as follows:
    1. For 30-minute or 1-hour samples: Quantitatively transfer the 
entire 10 mL amount of absorbing solution to a 25-mL volumetric flask 
and rinse with a small amount (<5 mL) of distilled water.
    2. For 24-hour samples: If the volume of the sample is less than the 
original 50-mL volume (permanent mark on the absorber), adjust the 
volume back to the original volume with distilled water to compensate 
for water lost to evaporation during sampling. If the final volume is 
greater than the original volume, the volume must be measured using a 
graduated cylinder. To analyze, pipet 10 mL

[[Page 666]]

of the solution into a 25-mL volumetric flask.
    11.2  Sample Analysis. For each set of determinations, prepare a 
reagent blank by adding 10 mL TCM absorbing solution to a 25-mL 
volumetric flask, and two control standards  containing  approximately 5 
 and 15 g SO2, respectively. The control standards are 
prepared according to Section 10.2 or 10.3. The analysis is carried out 
as follows:
    1. Allow the sample to stand 20 minutes after the completion of 
sampling to allow any ozone to decompose (if applicable).
    2. To each 25-mL volumetric flask containing reagent blank, sample, 
or control standard, add 1 mL of 0.6% sulfamic acid (Section 8.2.1) and 
allow to react for 10 min.
    3. Accurately pipet 2 mL of 0.2% formaldehyde solution (Section 
8.2.2) and then 5 mL of pararosaniline solution (Section 8.2.13) into 
each flask. Start a laboratory timer set at 30 minutes.
    4. Bring each flask to volume with recently boiled and cooled 
distilled water and mix thoroughly.
    5. During the 30 minutes, the solutions must be in a temperature 
controlled environment in the range of 20 deg. to 30 deg. C maintained 
to plus-minus 1 deg. C. This temperature must also be within 1 deg. 
C of that used during calibration.
    6. After 30 minutes and before 60 minutes, determine the corrected 
absorbances (equation 10) of each solution at 548 nm using 1-cm optical 
path length cells against a distilled water reference (Section 10.1). 
(Distilled water is used as a reference instead of the reagent blank 
because of the sensitivity of the reagent blank to temperature.)
    7. Do not allow the colored solution to stand in the cells because a 
film may be deposited. Clean the cells with isopropyl alcohol after use.
    8. The reagent blank must be within 0.03 absorbance units of the 
intercept of the calibration equation determined in Section 10.
    11.3  Absorbance range. If the absorbance of the sample solution 
ranges between 1.0 and 2.0, the sample can be diluted 1:1 with a portion 
of the reagent blank and the absorbance redetermined within 5 minutes. 
Solutions with higher absorbances can be diluted up to sixfold with the 
reagent blank in order to obtain scale readings of less than 1.0 
absorbance unit. However, it is recommended that a smaller portion (<10 
mL) of the original sample be reanalyzed (if possible) if the sample 
requires a dilution greater than 1:1.
    11.4  Reaqent disposal. All reagents containing mercury compounds 
must be stored and disposed of using one of the procedures contained in 
Section 13. Until disposal, the discarded solutions can be stored in 
closed glass containers and should be left in a fume hood.
    12.0  Calculations.
    12.1  Calibration Slope, Intercept, and Correlation Coefficient. The 
method of least squares is used to calculate a calibration equation in 
the form of:

                        y=mx+b                                      (16)
                                                                        

where:

y=corrected absorbance,
m=slope, absorbance unit/g SO2,
x=micrograms of SO2,
b=y intercept (absorbance units).

    The slope (m), intercept (b), and correlation coefficient (r) are 
calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.018

[GRAPHIC] [TIFF OMITTED] TR31AU93.019

[GRAPHIC] [TIFF OMITTED] TR31AU93.020

where n is the number of calibration points.
    A data form (Figure 5) is supplied for easily organizing calibration 
data when the slope, intercept, and correlation coefficient are 
calculated by hand.
    12.2  Total Sample Volume. Determine the sampling volume at standard 
conditions as follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.021

where:

Vstd=sampling volume in std L,
Qi=standard flow rate determined at the initiation of sampling in 
          std L/min,
Qf=standard flow rate determined at the completion of sampling is 
          std L/min, and
t=total sampling time, min.

    12.3  Sulfur Dioxide Concentration. Calculate and report the 
concentration of each sample as follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.022

where:

A=corrected absorbance of the sample solution, from equation (10);
Ao=corrected absorbance of the reagent blank, using equation (10);
Bx=calibration factor equal to Bs, Bg, or Bt 
          depending on the calibration procedure used, the reciprocal of 
          the slope of the calibration equation;
Va=volume of absorber solution analyzed, mL;
Vb=total volume of solution in absorber (see 11.1-2), mL; and
Vstd=standard air volume sampled, std L (from Section 12.2).

[[Page 667]]



                                                                        Data Form                                                                       
                                                                 [For hand calculations]                                                                
--------------------------------------------------------------------------------------------------------------------------------------------------------
       Calibration point no.            Micro- grams So2       Absor- bance units                                                                       
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               (x)                     (y)                     x2                     xy                     y2         
1..................................  ......................  ......................  .....................  .....................  .....................
2..................................  ......................  ......................  .....................  .....................  .....................
3..................................  ......................  ......................  .....................  .....................  .....................
4..................................  ......................  ......................  .....................  .....................  .....................
5..................................  ......................  ......................  .....................  .....................  .....................
6..................................  ......................  ......................  .....................  .....................  .....................
--------------------------------------------------------------------------------------------------------------------------------------------------------

      
x=______  y=______  x\2\=______  
xy______  y\2\______  
n=______ (number of pairs of coordinates.)
_______________________________________________________________________

Figure 5. Data form for hand calculations.

    12.4  Control Standards. Calculate the analyzed micrograms of 
SO2 in each control standard as follows:

Cq=(A-Ao) x Bx                            (22)

where:

Cq=analyzed g SO2 in each control standard,
A=corrected absorbance of the control standard, and
Ao=corrected absorbance of the reagent blank.

    The difference between the true and analyzed values of the control 
standards must not be greater than 1 g. If the difference is 
greater than 1 g, the source of the discrepancy must be 
identified and corrected.
    12.5  Conversion of g/m3 to ppm (v/v). If desired, the 
concentration of sulfur dioxide at reference conditions can be converted 
to ppm SO2 (v/v) as follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.023

    13.0  The TCM absorbing solution and any reagents containing mercury 
compounds must be treated and disposed of by one of the methods 
discussed below. Both methods remove greater than 99.99 percent of the 
mercury.
    13.1  Disposal of Mercury-Containing Solutions.
    13.2  Method for Forming an Amalgam.
    1. Place the waste solution in an uncapped vessel in a hood.
    2. For each liter of waste solution, add approximately 10 g of 
sodium carbonate until neutralization has occurred (NaOH may have to be 
used).
    3. Following neutralization, add 10 g of granular zinc or magnesium.
    4. Stir the solution in a hood for 24 hours. Caution must be 
exercised as hydrogen gas is evolved by this treatment process.
    5. After 24 hours, allow the solution to stand without stirring to 
allow the mercury amalgam (solid black material) to settle to the bottom 
of the waste receptacle.
    6. Upon settling, decant and discard the supernatant liquid.
    7. Quantitatively transfer the solid material to a container and 
allow to dry.
    8. The solid material can be sent to a mercury reclaiming plant. It 
must not be discarded.
    13.3  Method Using Aluminum Foil Strips.
    1. Place the waste solution in an uncapped vessel in a hood.
    2. For each liter of waste solution, add approximately 10 g of 
aluminum foil strips. If all the aluminum is consumed and no gas is 
evolved, add an additional 10 g of foil. Repeat until the foil is no 
longer consumed and allow the gas to evolve for 24 hours.
    3. Decant the supernatant liquid and discard.
    4. Transfer the elemental mercury that has settled to the bottom of 
the vessel to a storage container.
    5. The mercury can be sent to a mercury reclaiming plant. It must 
not be discarded.
    14.0  References for SO2 Method.
    1. Quality Assurance Handbook for Air Pollution Measurement Systems, 
Volume I, Principles. EPA-600/9-76-005, U.S. Environmental Protection 
Agency, Research Triangle Park, NC 27711, 1976.
    2. Quality Assurance Handbook for Air Pollution Measurement Systems, 
Volume II, Ambient Air Specific Methods. EPA-600/4-77-027a, U.S. 
Environmental Protection Agency, Research Triangle Park, NC 27711, 1977.
    3. Dasqupta, P. K., and K. B. DeCesare. Stability of Sulfur Dioxide 
in Formaldehyde and Its Anomalous Behavior in Tetrachloromercurate (II). 
Submitted for publication in Atmospheric Environment, 1982.
    4. West, P. W., and G. C. Gaeke. Fixation of Sulfur Dioxide as 
Disulfitomercurate (II) and Subsequent Colorimetric Estimation. Anal. 
Chem., 28:1816, 1956.
    5. Ephraim, F. Inorganic Chemistry. P. C. L. Thorne and E. R. 
Roberts, Eds., 5th Edition, Interscience, 1948, p. 562.
    6. Lyles, G. R., F. B. Dowling, and V. J. Blanchard. Quantitative 
Determination of Formaldehyde in the Parts Per Hundred Million 
Concentration Level. J. Air. Poll. Cont. Assoc., Vol. 15(106), 1965.
    7. McKee, H. C., R. E. Childers, and O. Saenz, Jr. Collaborative 
Study of Reference Method for Determination of Sulfur Dioxide in the 
Atmosphere (Pararosaniline Method). EPA-APTD-0903, U.S. Environmental 
Protection Agency, Research Triangle Park, NC 27711, September 1971.
    8. Urone, P., J. B. Evans, and C. M. Noyes. Tracer Techniques in 
Sulfur--Air Pollution Studies Apparatus and Studies of Sulfur Dioxide 
Colorimetric and Conductometric Methods. Anal. Chem., 37: 1104, 1965.

[[Page 668]]

    9. Bostrom, C. E. The Absorption of Sulfur Dioxide at Low 
Concentrations (pphm) Studied by an Isotopic Tracer Method. Intern. J. 
Air Water Poll., 9:333, 1965.
    10. Scaringelli, F. P., B. E. Saltzman, and S. A. Frey. 
Spectrophotometric Determination of Atmospheric Sulfur Dioxide. Anal. 
Chem., 39: 1709, 1967.
    11. Pate, J. B., B. E. Ammons, G. A. Swanson, and J. P. Lodge, Jr. 
Nitrite Interference in Spectrophotometric Determination of Atmospheric 
Sulfur Dioxide. Anal. Chem., 37:942, 1965.
    12. Zurlo, N., and A. M. Griffini. Measurement of the Sulfur Dioxide 
Content of the Air in the Presence of Oxides of Nitrogen and Heavy 
Metals. Medicina Lavoro, 53:330, 1962.
    13. Rehme, K. A., and F. P. Scaringelli. Effect of Ammonia on the 
Spectrophotometric Determination of Atmospheric Concentrations of Sulfur 
Dioxide. Anal. Chem., 47:2474, 1975.
    14. McCoy, R. A., D. E. Camann, and H. C. McKee. Collaborative Study 
of Reference Method for Determination of Sulfur Dioxide in the 
Atmosphere (Pararosaniline Method) (24-Hour Sampling). EPA-650/4-74-027, 
U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, 
December 1973.
    15. Fuerst, R. G. Improved Temperature Stability of Sulfur Dioxide 
Samples Collected by the Federal Reference Method. EPA-600/4-78-018, 
U.S. Environmental Protection Agency, Research Triangle Park, NC 27711, 
April 1978.
    16. Scaringelli, F. P., L. Elfers, D. Norris, and S. Hochheiser. 
Enhanced Stability of Sulfur Dioxide in Solution. Anal. Chem., 42:1818, 
1970.
    17. Martin, B. E. Sulfur Dioxide Bubbler Temperature Study. EPA-600/
4-77-040, U.S. Environmental Protection Agency, Research Triangle Park, 
NC 27711, August 1977.
    18. American Society for Testing and Materials. ASTM Standards, 
Water; Atmospheric Analysis. Part 23. Philadelphia, PA, October 1968, p. 
226.
    19. O'Keeffe, A. E., and G. C. Ortman. Primary Standards for Trace 
Gas Analysis. Anal. Chem., 38:760, 1966.
    20. Scaringelli, F. P., S. A. Frey, and B. E. Saltzman. Evaluation 
of Teflon Permeation Tubes for Use with Sulfur Dioxide. Amer. Ind. 
Hygiene Assoc. J., 28:260, 1967.
    21. Scaringelli, F. P., A. E. O'Keeffe, E. Rosenberg, and J. P. 
Bell, Preparation of Known Concentrations of Gases and Vapors With 
Permeation Devices Calibrated Gravimetrically. Anal. Chem., 42:871, 
1970.
    22. A Procedure for Establishing Traceability of Gas Mixtures to 
Certain National Bureau of Standards Standard Reference Materials. EPA-
600/7-81-010, U.S. Environmental Protection Agency, Environmental 
Monitoring Systems Laboratory (MD-77), Research Triangle Park, NC 27711, 
January 1981.

[47 FR 54899, Dec. 6, 1982; 48 FR 17355, Apr. 22, 1983]

    Appendix B to Part 50--Reference Method for the Determination of 
   Suspended Particulate Matter in the Atmosphere (High-Volume Method)

    1.0  Applicability.
    1.1  This method provides a measurement of the mass concentration of 
total suspended particulate matter (TSP) in ambient air for determining 
compliance with the primary and secondary national ambient air quality 
standards for particulate matter as specified in Sec. 50.6 and Sec. 50.7 
of this chapter. The measurement process is nondestructive, and the size 
of the sample collected is usually adequate for subsequent chemical 
analysis. Quality assurance procedures and guidance are provided in part 
58, appendixes A and B, of this chapter and in References 1 and 2.
    2.0  Principle.
    2.1  An air sampler, properly located at the measurement site, draws 
a measured quantity of ambient air into a covered housing and through a 
filter during a 24-hr (nominal) sampling period. The sampler flow rate 
and the geometry of the shelter favor the collection of particles up to 
25-50 m (aerodynamic diameter), depending on wind speed and 
direction.(3) The filters used are specified to have a minimum 
collection efficiency of 99 percent for 0.3 m (DOP) particles 
(see Section 7.1.4).
    2.2  The filter is weighed (after moisture equilibration) before and 
after use to determine the net weight (mass) gain. The total volume of 
air sampled, corrected to EPA standard conditions (25 deg. C, 760 mm Hg 
[101 kPa]), is determined from the measured flow rate and the sampling 
time. The concentration of total suspended particulate matter in the 
ambient air is computed as the mass of collected particles divided by 
the volume of air sampled, corrected to standard conditions, and is 
expressed in micrograms per standard cubic meter (g/std 
m3). For samples collected at temperatures and pressures 
significantly different than standard conditions, these corrected 
concentrations may differ substantially from actual concentrations 
(micrograms per actual cubic meter), particularly at high elevations. 
The actual particulate matter concentration can be calculated from the 
corrected concentration using the actual temperature and pressure during 
the sampling period.
    3.0  Range.
    3.1  The approximate concentration range of the method is 2 to 750 
g/std m3. The upper limit is determined by the point at 
which the sampler can no longer maintain the specified

[[Page 669]]

flow rate due to the increased pressure drop of the loaded filter. This 
point is affected by particle size distribution, moisture content of the 
collected particles, and variability from filter to filter, among other 
things. The lower limit is determined by the sensitivity of the balance 
(see Section 7.10) and by inherent sources of error (see Section 6).
    3.2  At wind speeds between 1.3 and 4.5 m/sec (3 and 10 mph), the 
high-volume air sampler has been found to collect particles up to 25 to 
50 m, depending on wind speed and direction.(3) For the filter 
specified in Section 7.1, there is effectively no lower limit on the 
particle size collected.
    4.0  Precision.
    4.1  Based upon collaborative testing, the relative standard 
deviation (coefficient of variation) for single analyst precision 
(repeatability) of the method is 3.0 percent. The corresponding value 
for interlaboratory precision (reproducibility) is 3.7 percent.(4)
    5.0  Accuracy.
    5.1  The absolute accuracy of the method is undefined because of the 
complex nature of atmospheric particulate matter and the difficulty in 
determining the ``true'' particulate matter concentration. This method 
provides a measure of particulate matter concentration suitable for the 
purpose specified under Section 1.0, Applicability.
    6.0  Inherent Sources of Error.
    6.1  Airflow variation. The weight of material collected on the 
filter represents the (integrated) sum of the product of the 
instantaneous flow rate times the instantaneous particle concentration. 
Therefore, dividing this weight by the average flow rate over the 
sampling period yields the true particulate matter concentration only 
when the flow rate is constant over the period. The error resulting from 
a nonconstant flow rate depends on the magnitude of the instantaneous 
changes in the flow rate and in the particulate matter concentration. 
Normally, such errors are not large, but they can be greatly reduced by 
equipping the sampler with an automatic flow controlling mechanism that 
maintains constant flow during the sampling period. Use of a contant 
flow controller is recommended.*
---------------------------------------------------------------------------

    *At elevated altitudes, the effectiveness of automatic flow 
controllers may be reduced because of a reduction in the maximum sampler 
flow.
---------------------------------------------------------------------------

    6.2  Air volume measurement. If the flow rate changes substantially 
or nonuniformly during the sampling period, appreciable error in the 
estimated air volume may result from using the average of the 
presampling and postsampling flow rates. Greater air volume measurement 
accuracy may be achieved by (1) equipping the sampler with a flow 
controlling mechanism that maintains constant air flow during the 
sampling period,* (2) using a calibrated, continuous flow rate recording 
device to record the actual flow rate during the samping period and 
integrating the flow rate over the period, or (3) any other means that 
will accurately measure the total air volume sampled during the sampling 
period. Use of a continuous flow recorder is recommended, particularly 
if the sampler is not equipped with a constant flow controller.
    6.3  Loss of volatiles. Volatile particles collected on the filter 
may be lost during subsequent sampling or during shipment and/or storage 
of the filter prior to the postsampling weighing.(5) Although such 
losses are largely unavoidable, the filter should be reweighed as soon 
after sampling as practical.
    6.4  Artifact particulate matter. Artifact particulate matter can be 
formed on the surface of alkaline glass fiber filters by oxidation of 
acid gases in the sample air, resulting in a higher than true TSP 
determination.(6 7) This effect usually occurs early in the sample 
period and is a function of the filter pH and the presence of acid 
gases. It is generally believed to account for only a small percentage 
of the filter weight gain, but the effect may become more significant 
where relatively small particulate weights are collected.
    6.5  Humidity. Glass fiber filters are comparatively insensitive to 
changes in relative humidity, but collected particulate matter can be 
hygroscopic.(8) The moisture conditioning procedure minimizes but may 
not completely eliminate error due to moisture.
    6.6  Filter handling. Careful handling of the filter between the 
presampling and postsampling weighings is necessary to avoid errors due 
to loss of fibers or particles from the filter. A filter paper cartridge 
or cassette used to protect the filter can minimize handling errors. 
(See Reference 2, Section 2).
    6.7  Nonsampled particulate matter. Particulate matter may be 
deposited on the filter by wind during periods when the sampler is 
inoperative. (9) It is recommended that errors from this source be 
minimized by an automatic mechanical device that keeps the filter 
covered during nonsampling periods, or by timely installation and 
retrieval of filters to minimize the nonsampling periods prior to and 
following operation.
    6.8  Timing errors. Samplers are normally controlled by clock timers 
set to start and stop the sampler at midnight. Errors in the nominal 
1,440-min sampling period may result from a power interruption during 
the sampling period or from a discrepancy between the start or stop time 
recorded on the filter information record and the actual start or stop 
time of the sampler. Such discrepancies may be caused by (1) poor 
resolution of the timer set-points, (2) timer error due to power 
interruption, (3) missetting of

[[Page 670]]

the timer, or (4) timer malfunction. In general, digital electronic 
timers have much better set-point resolution than mechanical timers, but 
require a battery backup system to maintain continuity of operation 
after a power interruption. A continuous flow recorder or elapsed time 
meter provides an indication of the sampler run-time, as well as 
indication of any power interruption during the sampling period and is 
therefore recommended.
    6.9  Recirculation of sampler exhaust. Under stagnant wind 
conditions, sampler exhaust air can be resampled. This effect does not 
appear to affect the TSP measurement substantially, but may result in 
increased carbon and copper in the collected sample. (10) This problem 
can be reduced by ducting the exhaust air well away, preferably 
downwind, from the sampler.
    7.0  Apparatus.
    (See References 1 and 2 for quality assurance information.)

    Note: Samplers purchased prior to the effective date of this 
amendment are not subject to specifications preceded by ().

    7.1  Filter. (Filters supplied by the Environmental Protection 
Agency can be assumed to meet the following criteria. Additional 
specifications are required if the sample is to be analyzed chemically.)
    7.1.1  Size: 20.30.2 x 25.40.2 cm (nominal 
8 x 10 in).
    7.1.2  Nominal exposed area: 406.5 cm\2\ (63 in\2\).
    7.1.3.  Material: Glass fiber or other relatively inert, 
nonhygroscopic material. (8)
    7.1.4  Collection efficiency: 99 percent minimum as measured by the 
DOP test (ASTM-2986) for particles of 0.3 m diameter.
    7.1.5  Recommended pressure drop range: 42-54 mm Hg (5.6-7.2 kPa) at 
a flow rate of 1.5 std m\3\/min through the nominal exposed area.
    7.1.6  pH: 6 to 10. (11)
    7.1.7  Integrity: 2.4 mg maximum weight loss. (11)
    7.1.8  Pinholes: None.
    7.1.9  Tear strength: 500 g minimum for 20 mm wide strip cut from 
filter in weakest dimension. (See ASTM Test D828-60).
    7.1.10  Brittleness: No cracks or material separations after single 
lengthwise crease.
    7.2  Sampler. The air sampler shall provide means for drawing the 
air sample, via reduced pressure, through the filter at a uniform face 
velocity.
    7.2.1  The sampler shall have suitable means to:
    a. Hold and seal the filter to the sampler housing.
    b. Allow the filter to be changed conveniently.
    c. Preclude leaks that would cause error in the measurement of the 
air volume passing through the filter.
    d. () Manually adjust the flow rate to accommodate 
variations in filter pressure drop and site line voltage and altitude. 
The adjustment may be accomplished by an automatic flow controller or by 
a manual flow adjustment device. Any manual adjustment device must be 
designed with positive detents or other means to avoid unintentional 
changes in the setting.
---------------------------------------------------------------------------

    () See note at beginning of Section 7 of this appendix.
---------------------------------------------------------------------------

    7.2.2  Minimum sample flow rate, heavily loaded filter: 1.1 m3/
min (39 ft3/min).
---------------------------------------------------------------------------

     These specifications are in actual air volume 
units; to convert to EPA standard air volume units, multiply the 
specifications by (Pb/Pstd)(298/T) where Pb and T are the 
barometric pressure in mm Hg (or kPa) and the temperature in K at the 
sampler, and Pstd is 760 mm Hg (or 101 kPa).
---------------------------------------------------------------------------

    7.2.3  Maximum sample flow rate, clean filter: 1.7 m3/min (60 
ft3/min).
    7.2.4  Blower Motor: The motor must be capable of continuous 
operation for 24-hr periods.
    7.3  Sampler shelter.
    7.3.1  The sampler shelter shall:
    a. Maintain the filter in a horizontal position at least 1 m above 
the sampler supporting surface so that sample air is drawn downward 
through the filter.
    b. Be rectangular in shape with a gabled roof, similar to the design 
shown in Figure 1.
    c. Cover and protect the filter and sampler from precipitation and 
other weather.
    d. Discharge exhaust air at least 40 cm from the sample air inlet.
    e. Be designed to minimize the collection of dust from the 
supporting surface by incorporating a baffle between the exhaust outlet 
and the supporting surface.
    7.3.2  The sampler cover or roof shall overhang the sampler housing 
somewhat, as shown in Figure 1, and shall be mounted so as to form an 
air inlet gap between the cover and the sampler housing walls. 
This sample air inlet should be approximately uniform on all 
sides of the sampler. The area of the sample air inlet must be 
sized to provide an effective particle capture air velocity of between 
20 and 35 cm/sec at the recommended operational flow rate. The capture 
velocity is the sample air flow rate divided by the inlet area measured 
in a horizontal plane at the lower edge of the cover. Ideally, 
the inlet area and operational flow rate should be selected to obtain a 
capture air velocity of 25 2 cm/sec.
    7.4  Flow rate measurement devices.
    7.4.1  The sampler shall incorporate a flow rate measurement device 
capable of indicating the total sampler flow rate. Two common types of 
flow indicators covered in the calibration procedure are (1) an 
electronic mass flowmeter and (2) an orifice or orifices located in the 
sample air stream together with

[[Page 671]]

a suitable pressure indicator such as a manometer, or aneroid pressure 
gauge. A pressure recorder may be used with an orifice to provide a 
continuous record of the flow. Other types of flow indicators (including 
rotameters) having comparable precision and accuracy are also 
acceptable.
    7.4.2   The flow rate measurement device must be capable of 
being calibrated and read in units corresponding to a flow rate which is 
readable to the nearest 0.02 std m3/min over the range 1.0 to 1.8 
std m3/min.
    7.5  Thermometer, to indicate the approximate air temperature at the 
flow rate measurement orifice, when temperature corrections are used.
    7.5.1  Range: -40 deg. to +50 deg. C (223-323 K).
    7.5.2  Resolution: 2 deg. C (2 K).
    7.6  Barometer, to indicate barometric pressure at the flow rate 
measurement orifice, when pressure corrections are used.
    7.6.1  Range: 500 to 800 mm Hg (66-106 kPa).
    7.6.2  Resolution: 5 mm Hg (0.67 kPa).
    7.7  Timing/control device.
    7.7.1  The timing device must be capable of starting and stopping 
the sampler to obtain an elapsed run-time of 24 hr 1 hr 
(1,440 60 min).
    7.7.2  Accuracy of time setting: 30 min, or better. (See 
Section 6.8).
    7.8  Flow rate transfer standard, traceable to a primary standard. 
(See Section 9.2.)
    7.8.1  Approximate range: 1.0 to 1.8 m3/min.
    7.8.2  Resolution: 0.02 m3/min.
    7.8.3  Reproducibility: 2 percent (2 times coefficient 
of variation) over normal ranges of ambient temperature and pressure for 
the stated flow rate range. (See Reference 2, Section 2.)
    7.8.4  Maximum pressure drop at 1.7 std m3/min; 50 cm H2O 
(5 kPa).
    7.8.5  The flow rate transfer standard must connect without leaks to 
the inlet of the sampler and measure the flow rate of the total air 
sample.
    7.8.6  The flow rate transfer standard must include a means to vary 
the sampler flow rate over the range of 1.0 to 1.8 m3/min (35-64 
ft3/min) by introducing various levels of flow resistance between 
the sampler and the transfer standard inlet.
    7.8.7  The conventional type of flow transfer standard consists of: 
An orifice unit with adapter that connects to the inlet of the sampler, 
a manometer or other device to measure orifice pressure drop, a means to 
vary the flow through the sampler unit, a thermometer to measure the 
ambient temperature, and a barometer to measure ambient pressure. Two 
such devices are shown in Figures 2a and 2b. Figure 2a shows multiple 
fixed resistance plates, which necessitate disassembly of the unit each 
time the flow resistance is changed. A preferable design, illustrated in 
Figure 2b, has a variable flow restriction that can be adjusted 
externally without disassembly of the unit. Use of a conventional, 
orifice-type transfer standard is assumed in the calibration procedure 
(Section 9). However, the use of other types of transfer standards 
meeting the above specifications, such as the one shown in Figure 2c, 
may be approved; see the note following Section 9.1.
    7.9  Filter conditioning environment
    7.9.1  Controlled temperature: between 15 deg. and 30 deg. C with 
less than plus-minus3 deg. C variation during equilibration period.
    7.9.2  Controlled humidity: Less than 50 percent relative humidity, 
constant within plus-minus5 percent.
    7.10  Analytical balance.
    7.10.1  Sensitivity: 0.1 mg.
    7.10.2  Weighing chamber designed to accept an unfolded 20.3 x 25.4 
cm (8 x 10 in) filter.
    7.11  Area light source, similar to X-ray film viewer, to backlight 
filters for visual inspection.
    7.12  Numbering device, capable of printing identification numbers 
on the filters before they are placed in the filter conditioning 
environment, if not numbered by the supplier.
    8.0  Procedure.
    (See References 1 and 2 for quality assurance information.)
    8.1  Number each filter, if not already numbered, near its edge with 
a unique identification number.
    8.2  Backlight each filter and inspect for pinholes, particles, and 
other imperfections; filters with visible imperfections must not be 
used.
    8.3  Equilibrate each filter in the conditioning environment for at 
least 24-hr.
    8.4  Following equilibration, weigh each filter to the nearest 
milligram and record this tare weight (Wi) with the filter 
identification number.
    8.5  Do not bend or fold the filter before collection of the sample.
    8.6  Open the shelter and install a numbered, preweighed filter in 
the sampler, following the sampler manufacturer's instructions. During 
inclement weather, precautions must be taken while changing filters to 
prevent damage to the clean filter and loss of sample from or damage to 
the exposed filter. Filter cassettes that can be loaded and unloaded in 
the laboratory may be used to minimize this problem (See Section 6.6).
    8.7  Close the shelter and run the sampler for at least 5 min to 
establish run-temperature conditions.
    8.8  Record the flow indicator reading and, if needed, the 
barometric pressure (P 3) and the ambient temperature (T 3) 
see NOTE following step 8.12). Stop the sampler. Determine the sampler 
flow rate (see Section 10.1); if it is outside the acceptable range (1.1 
to 1.7 m3/min [39-60 ft3/min]), use a different filter, or 
adjust the sampler flow rate. Warning: Substantial flow adjustments may 
affect the

[[Page 672]]

calibration of the orifice-type flow indicators and may necessitate 
recalibration.
    8.9  Record the sampler identification information (filter number, 
site location or identification number, sample date, and starting time).
    8.10  Set the timer to start and stop the sampler such that the 
sampler runs 24-hrs, from midnight to midnight (local time).
    8.11  As soon as practical following the sampling period, run the 
sampler for at least 5 min to again establish run-temperature 
conditions.
    8.12  Record the flow indicator reading and, if needed, the 
barometric pressure (P 3) and the ambient temperature (T 3).

    Note: No onsite pressure or temperature measurements are necessary 
if the sampler flow indicator does not require pressure or temperature 
corrections (e.g., a mass flowmeter) or if average barometric pressure 
and seasonal average temperature for the site are incorporated into the 
sampler calibration (see step 9.3.9). For individual pressure and 
temperature corrections, the ambient pressure and temperature can be 
obtained by onsite measurements or from a nearby weather station. 
Barometric pressure readings obtained from airports must be station 
pressure, not corrected to sea level, and may need to be corrected for 
differences in elevation between the sampler site and the airport. For 
samplers having flow recorders but not constant flow controllers, the 
average temperature and pressure at the site during the sampling period 
should be estimated from weather bureau or other available data.

    8.13  Stop the sampler and carefully remove the filter, following 
the sampler manufacturer's instructions. Touch only the outer edges of 
the filter. See the precautions in step 8.6.
    8.14  Fold the filter in half lengthwise so that only surfaces with 
collected particulate matter are in contact and place it in the filter 
holder (glassine envelope or manila folder).
    8.15  Record the ending time or elapsed time on the filter 
information record, either from the stop set-point time, from an elapsed 
time indicator, or from a continuous flow record. The sample period must 
be 1,440  60 min. for a valid sample.
    8.16  Record on the filter information record any other factors, 
such as meteorological conditions, construction activity, fires or dust 
storms, etc., that might be pertinent to the measurement. If the sample 
is known to be defective, void it at this time.
    8.17  Equilibrate the exposed filter in the conditioning environment 
for at least 24-hrs.
    8.18  Immediately after equilibration, reweigh the filter to the 
nearest milligram and record the gross weight with the filter 
identification number. See Section 10 for TSP concentration 
calculations.
    9.0  Calibration.
    9.1  Calibration of the high volume sampler's flow indicating or 
control device is necessary to establish traceability of the field 
measurement to a primary standard via a flow rate transfer standard. 
Figure 3a illustrates the certification of the flow rate transfer 
standard and Figure 3b illustrates its use in calibrating a sampler flow 
indicator. Determination of the corrected flow rate from the sampler 
flow indicator, illustrated in Figure 3c, is addressed in Section 10.1

    Note: The following calibration procedure applies to a conventional 
orifice-type flow transfer standard and an orifice-type flow indicator 
in the sampler (the most common types). For samplers using a pressure 
recorder having a square-root scale, 3 other acceptable calibration 
procedures are provided in Reference 12. Other types of transfer 
standards may be used if the manufacturer or user provides an 
appropriately modified calibration procedure that has been approved by 
EPA under Section 2.8 of appendix C to part 58 of this chapter.

    9.2  Certification of the flow rate transfer standard.
    9.2.1  Equipment required: Positive displacement standard volume 
meter traceable to the National Bureau of Standards (such as a Roots 
meter or equivalent), stop-watch, manometer, thermometer, and barometer.
    9.2.2  Connect the flow rate transfer standard to the inlet of the 
standard volume meter. Connect the manometer to measure the pressure at 
the inlet of the standard volume meter. Connect the orifice manometer to 
the pressure tap on the transfer standard. Connect a high-volume air 
pump (such as a high-volume sampler blower) to the outlet side of the 
standard volume meter. See Figure 3a.
    9.2.3  Check for leaks by temporarily clamping both manometer lines 
(to avoid fluid loss) and blocking the orifice with a large-diameter 
rubber stopper, wide cellophane tape, or other suitable means. Start the 
high-volume air pump and note any change in the standard volume meter 
reading. The reading should remain constant. If the reading changes, 
locate any leaks by listening for a whistling sound and/or retightening 
all connections, making sure that all gaskets are properly installed.
    9.2.4  After satisfactorily completing the leak check as described 
above, unclamp both manometer lines and zero both manometers.
    9.2.5  Achieve the appropriate flow rate through the system, either 
by means of the variable flow resistance in the transfer standard or by 
varying the voltage to the air pump. (Use of resistance plates as shown 
in Figure 1a is discouraged because the above leak check must be 
repeated each time a new resistance plate is installed.) At least five

[[Page 673]]

different but constant flow rates, evenly distributed, with at least 
three in the specified flow rate interval (1.1 to 1.7 m\3\/min [39-60 
ft\3\/min]), are required.
    9.2.6  Measure and record the certification data on a form similar 
to the one illustrated in Figure 4 according to the following steps.
    9.2.7  Observe the barometric pressure and record as P1 (item 8 
in Figure 4).
    9.2.8  Read the ambient temperature in the vicinity of the standard 
volume meter and record it as T1 (item 9 in Figure 4).
    9.2.9  Start the blower motor, adjust the flow, and allow the system 
to run for at least 1 min for a constant motor speed to be attained.
    9.2.10  Observe the standard volume meter reading and simultaneously 
start a stopwatch. Record the initial meter reading (Vi) in column 
1 of Figure 4.
    9.2.11  Maintain this constant flow rate until at least 3 m3 of 
air have passed through the standard volume meter. Record the standard 
volume meter inlet pressure manometer reading as P (column 5 in 
Figure 4), and the orifice manometer reading as H (column 7 in 
Figure 4). Be sure to indicate the correct units of measurement.
    9.2.12  After at least 3 m3 of air have passed through the 
system, observe the standard volume meter reading while simultaneously 
stopping the stopwatch. Record the final meter reading (Vf) in 
column 2 and the elapsed time (t) in column 3 of Figure 4.
    9.2.13  Calculate the volume measured by the standard volume meter 
at meter conditions of temperature and pressures as 
Vm=Vf-Vi. Record in column 4 of Figure 4.
    9.2.14  Correct this volume to standard volume (std m3) as 
follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.024

where:
Vstd=standard volume, std m3;
Vm=actual volume measured by the standard volume meter;
P1=barometric pressure during calibration, mm Hg or kPa;
P=differential pressure at inlet to volume meter, mm Hg or kPa;
Pstd=760 mm Hg or 101 kPa;
Tstd=298 K;
T1=ambient temperature during calibration, K.
Calculate the standard flow rate (std m3/min) as follows:


                                                        Vstd            
                                             Qstd =     ----            
                                                          t             
                                                                        

where:
Qstd=standard volumetric flow rate, std m3/min
t=elapsed time, minutes.

    Record Qstd to the nearest 0.01 std m3/min in column 6 of 
Figure 4.
    9.2.15  Repeat steps 9.2.9 through 9.2.14 for at least four 
additional constant flow rates, evenly spaced over the approximate range 
of 1.0 to 1.8 std m3/min (35-64 ft\3\/min).
    9.2.16  For each flow, compute

H (P1/Pstd)(298/T1)

(column 7a of Figure 4) and plot these value against Qstd as shown 
in Figure 3a. Be sure to use consistent units (mm Hg or kPa) for 
barometric pressure. Draw the orifice transfer standard certification 
curve or calculate the linear least squares slope (m) and intercept (b) 
of the certification curve:

H (P1/Pstd)(298/T1)

=mQstd+b. See Figures 3 and 4. A certification graph should be 
readable to 0.02 std m\3\/min.
    9.2.17  Recalibrate the transfer standard annually or as required by 
applicable quality control procedures. (See Reference 2.)
    9.3  Calibration of sampler flow indicator.

    Note: For samplers equipped with a flow controlling device, the flow 
controller must be disabled to allow flow changes during calibration of 
the sampler's flow indicator, or the alternate calibration of the flow 
controller given in 9.4 may be used. For samplers using an orifice-type 
flow indicator downstream of the motor, do not vary the flow rate by 
adjusting the voltage or power supplied to the sampler.

    9.3.1  A form similar to the one illustrated in Figure 5 should be 
used to record the calibration data.
    9.3.2  Connect the transfer standard to the inlet of the sampler. 
Connect the orifice manometer to the orifice pressure tap, as 
illustrated in Figure 3b. Make sure there are no leaks between the 
orifice unit and the sampler.
    9.3.3  Operate the sampler for at least 5 minutes to establish 
thermal equilibrium prior to the calibration.
    9.3.4  Measure and record the ambient temperature, T2, and the 
barometric pressure, P2, during calibration.
    9.3.5  Adjust the variable resistance or, if applicable, insert the 
appropriate resistance plate (or no plate) to achieve the desired flow 
rate.
    9.3.6  Let the sampler run for at least 2 min to re-establish the 
run-temperature conditions. Read and record the pressure drop across the 
orifice (H) and the sampler flow rate indication (I) in the 
appropriate columns of Figure 5.
    9.3.7  Calculate H(P2/Pstd)(298/T2) 
and determine the flow rate at standard conditions

[[Page 674]]

(Qstd) either graphically from the certification curve or by 
calculating Qstd from the least square slope and intercept of the 
transfer standard's transposed certification curve: Qstd=1/m 
H(P2/Pstd)(298/T2)-b. Record the value 
of Qstd on Figure 5.
    9.3.8  Repeat steps 9.3.5, 9.3.6, and 9.3.7 for several additional 
flow rates distributed over a range that includes 1.1 to 1.7 std 
m3/min.
    9.3.9  Determine the calibration curve by plotting values of the 
appropriate expression involving I, selected from Table 1, against 
Qstd. The choice of expression from Table 1 depends on the flow 
rate measurement device used (see Section 7.4.1) and also on whether the 
calibration curve is to incorporate geographic average barometric 
pressure (Pa) and seasonal average temperature (Ta) for the 
site to approximate actual pressure and temperature. Where Pa and 
Ta can be determined for a site for a seasonal period such that the 
actual barometric pressure and temperature at the site do not vary by 
more than 60 mm Hg (8 kPa) from Pa or 
15 deg. C from Ta, respectively, then using Pa and 
Ta avoids the need for subsequent pressure and temperature 
calculation when the sampler is used. The geographic average barometric 
pressure (Pa) may be estimated from an altitude-pressure table or 
by making an (approximate) elevation correction of -26 mm Hg (-3.46 kPa) 
for each 305 m (1,000 ft) above sea level (760 mm Hg or 101 kPa). The 
seasonal average temperature (Ta) may be estimated from weather 
station or other records. Be sure to use consistent units (mm Hg or kPa) 
for barometric pressure.
    9.3.10  Draw the sampler calibration curve or calculate the linear 
least squares slope (m), intercept (b), and correlation coefficient of 
the calibration curve: [Expression from Table 1]= mQstd+b. See 
Figures 3 and 5. Calibration curves should be readable to 0.02 std 
m3/min.
    9.3.11  For a sampler equipped with a flow controller, the flow 
controlling mechanism should be re-enabled and set to a flow near the 
lower flow limit to allow maximum control range. The sample flow rate 
should be verified at this time with a clean filter installed. Then add 
two or more filters to the sampler to see if the flow controller 
maintains a constant flow; this is particularly important at high 
altitudes where the range of the flow controller may be reduced.
    9.4  Alternate calibration of flow-controlled samplers. A flow-
controlled sampler may be calibrated solely at its controlled flow rate, 
provided that previous operating history of the sampler demonstrates 
that the flow rate is stable and reliable. In this case, the flow 
indicator may remain uncalibrated but should be used to indicate any 
relative change between initial and final flows, and the sampler should 
be recalibrated more often to minimize potential loss of samples because 
of controller malfunction.
    9.4.1  Set the flow controller for a flow near the lower limit of 
the flow range to allow maximum control range.
    9.4.2  Install a clean filter in the sampler and carry out steps 
9.3.2, 9.3.3, 9.3.4, 9.3.6, and 9.3.7.
    9.4.3  Following calibration, add one or two additional clean 
filters to the sampler, reconnect the transfer standard, and operate the 
sampler to verify that the controller maintains the same calibrated flow 
rate; this is particularly important at high altitudes where the flow 
control range may be reduced.

[[Page 675]]






    10.0  Calculations of TSP Concentration.
    10.1  Determine the average sampler flow rate during the sampling 
period according to either 10.1.1 or 10.1.2 below.
    10.1.1  For a sampler without a continuous flow recorder, determine 
the appropriate expression to be used from Table 2 corresponding to the 
one from Table 1 used in step 9.3.9. Using this appropriate expression, 
determine Qstd for the initial flow rate from the sampler 
calibration curve, either graphically or from the transposed regression 
equation:

Qstd=
1/m  ([Appropriate expression from Table 2]-b)

Similarly, determine Qstd from the final flow reading, and 
calculate the average flow Qstd as one-half the sum of the initial 
and final flow rates.

[[Page 676]]

    10.1.2  For a sampler with a continuous flow recorder, determine the 
average flow rate device reading, I, for the period. Determine the 
appropriate expression from Table 2 corresponding to the one from Table 
1 used in step 9.3.9. Then using this expression and the average flow 
rate reading, determine Qstd from the sampler calibration curve, 
either graphically or from the transposed regression equation:

Qstd=

1/m  ([Appropriate expression from Table 2]-b)
    If the trace shows substantial flow change during the sampling 
period, greater accuracy may be achieved by dividing the sampling period 
into intervals and calculating an average reading before determining 
Qstd.
    10.2  Calculate the total air volume sampled as:

V-Qstd x t

where:
V=total air volume sampled, in standard volume units, std m\3\/;
Qstd=average standard flow rate, std m\3\/min;
t=sampling time, min.

    10.3  Calculate and report the particulate matter concentration as:
    [GRAPHIC] [TIFF OMITTED] TR31AU93.025
    
where:

TSP=mass concentration of total suspended particulate matter, 
          g/std m\3\;
Wi=initial weight of clean filter, g;
Wf=final weight of exposed filter, g;
V=air volume sampled, converted to standard conditions, std m\3\,
10\6\=conversion of g to g.

    10.4  If desired, the actual particulate matter concentration (see 
Section 2.2) can be calculated as follows:

(TSP)a=TSP (P3/Pstd)(298/T3)

where:

(TSP)a=actual concentration at field conditions, g/m\3\;
TSP=concentration at standard conditions, g/std m\3\;
P3=average barometric pressure during sampling period, mm Hg;
Pstd=760 mn Hg (or 101 kPa);
T3=average ambient temperature during sampling period, K.

    11.0  References.
    1. Quality Assurance Handbook for Air Pollution Measurement Systems, 
Volume I, Principles. EPA-600/9-76-005, U.S. Environmental Protection 
Agency, Research Triangle Park, NC 27711, 1976.
    2. Quality Assurance Handbook for Air Pollution Measurement Systems, 
Volume II, Ambient Air Specific Methods. EPA-600/4-77-027a, U.S. 
Environmental Protection Agency, Research Triangle Park, NC 27711, 1977.
    3. Wedding, J. B., A. R. McFarland, and J. E. Cernak. Large Particle 
Collection Characteristics of Ambient Aerosol Samplers. Environ. Sci. 
Technol. 11:387-390, 1977.
    4. McKee, H. C., et al. Collaborative Testing of Methods to Measure 
Air Pollutants, I. The High-Volume Method for Suspended Particulate 
Matter. J. Air Poll. Cont. Assoc., 22 (342), 1972.
    5. Clement, R. E., and F. W. Karasek. Sample Composition Changes in 
Sampling and Analysis of Organic Compounds in Aerosols. The Intern. J. 
Environ. Anal. Chem., 7:109, 1979.
    6. Lee, R. E., Jr., and J. Wagman. A Sampling Anomaly in the 
Determination of Atmospheric Sulfuric Concentration. Am. Ind. Hygiene 
Assoc. J., 27:266, 1966.
    7. Appel, B. R., et al. Interference Effects in Sampling Particulate 
Nitrate in Ambient Air. Atmospheric Environment, 13:319, 1979.
    8. Tierney, G. P., and W. D. Conner. Hygroscopic Effects on Weight 
Determinations of Particulates Collected on Glass-Fiber Filters. Am. 
Ind. Hygiene Assoc. J., 28:363, 1967.
    9. Chahal, H. S., and D. J. Romano. High-Volume Sampling Effect of 
Windborne Particulate Matter Deposited During Idle Periods. J. Air Poll. 
Cont. Assoc., Vol. 26 (885), 1976.
    10. Patterson, R. K. Aerosol Contamination from High-Volume Sampler 
Exhaust. J. Air Poll. Cont. Assoc., Vol. 30 (169), 1980.
    11. EPA Test Procedures for Determining pH and Integrity of High-
Volume Air Filters. QAD/M-80.01. Available from the Methods 
Standardization Branch, Quality Assurance Division, Environmental 
Monitoring Systems Laboratory (MD-77), U.S. Environmental Protection 
Agency, Research Triangle Park, NC 27711, 1980.
    12. Smith, F., P. S. Wohlschlegel, R. S. C. Rogers, and D. J. 
Mulligan. Investigation of Flow Rate Calibration Procedures Associated 
with the High-Volume Method for Determination of Suspended Particulates. 
EPA-600/4-78-047, U.S. Environmental Protection Agency, Research 
Triangle Park, NC, June 1978.

[[Page 677]]




[[Page 678]]





[[Page 679]]





[[Page 680]]





[[Page 681]]




[47 FR 54912, Dec. 6, 1982; 48 FR 17355, Apr. 22, 1983]

[[Page 682]]

 Appendix C to Part 50--Measurement Principle and Calibration Procedure 
for the Measurement of Carbon Monoxide in the Atmosphere (Non-Dispersive 
                          Infrared Photometry)

                          Measurement Principle

    1. Measurements are based on the absorption of infrared radiation by 
carbon monoxide (CO) in a non-dispersive photometer. Infrared energy 
from a source is passed through a cell containing the gas sample to be 
analyzed, and the quantitative absorption of energy by CO in the sample 
cell is measured by a suitable detector. The photometer is sensitized to 
CO by employing CO gas in either the detector or in a filter cell in the 
optical path, thereby limiting the measured absorption to one or more of 
the characteristic wavelengths at which CO strongly absorbs. Optical 
filters or other means may also be used to limit sensitivity of the 
photometer to a narrow band of interest. Various schemes may be used to 
provide a suitable zero reference for the photometer. The measured 
absorption is converted to an electrical output signal, which is related 
to the concentration of CO in the measurement cell.
    2. An analyzer based on this principle will be considered a 
reference method only if it has been designated as a reference method in 
accordance with part 53 of this chapter.
    3. Sampling considerations.
    The use of a particle filter on the sample inlet line of an NDIR CO 
analyzer is optional and left to the discretion of the user or the 
manufacturer. Use of filter should depend on the analyzer's 
susceptibility to interference, malfunction, or damage due to particles.

                          Calibration Procedure

    1. Principle. Either of two methods may be used for dynamic 
multipoint calibration of CO analyzers:
    (1) One method uses a single certified standard cylinder of CO, 
diluted as necessary with zero air, to obtain the various calibration 
concentrations needed.
    (2) The other method uses individual certified standard cylinders of 
CO for each concentration needed. Additional information on calibration 
may be found in Section 2.0.9 of Reference 1.
    2. Apparatus. The major components and typical configurations of the 
calibration systems for the two calibration methods are shown in Figures 
1 and 2.
    2.1  Flow controller(s). Device capable of adjusting and regulating 
flow rates. Flow rates for the dilution method (Figure 1) must be 
regulated to  1%.
    2.2  Flow meter(s). Calibrated flow meter capable of measuring and 
monitoring flow rates. Flow rates for the dilution method (Figure 1) 
must be measured with an accuracy of  2% of the measured 
value.
    2.3  Pressure regulator(s) for standard CO cylinder(s). Regulator 
must have nonreactive diaphragm and internal parts and a suitable 
delivery pressure.
    2.4  Mixing chamber. A chamber designed to provide thorough mixing 
of CO and diluent air for the dilution method.
    2.5  Output manifold. The output manifold should be of sufficient 
diameter to insure an insignificant pressure drop at the analyzer 
connection. The system must have a vent designed to insure atmospheric 
pressure at the manifold and to prevent ambient air from entering the 
manifold.
    3. Reagents.
    3.1  CO concentration standard(s). Cylinder(s) of CO in air 
containing appropriate concentrations(s) of CO suitable for the selected 
operating range of the analyzer under calibration; CO standards for the 
dilution method may be contained in a nitrogen matrix if the zero air 
dilution ratio is not less than 100:1. The assay of the cylinder(s) must 
be traceable either to a National Bureau of Standards (NBS) CO in air 
Standard Reference Material (SRM) or to an NBS/EPA-approved commercially 
available Certified Reference Material (CRM). CRM's are described in 
Reference 2, and a list of CRM sources is available from the address 
shown for Reference 2. A recommended protocol for certifying CO gas 
cylinders against either a CO SRM or a CRM is given in Reference 1. CO 
gas cylinders should be recertified on a regular basis as determined by 
the local quality control program.
    3.2  Dilution gas (zero air). Air, free of contaminants which will 
cause a detectable response on the CO analyzer. The zero air should 
contain <0.1 ppm CO. A procedure for generating zero air is given in 
Reference 1.
    4. Procedure Using Dynamic Dilution Method.
    4.1  Assemble a dynamic calibration system such as the one shown in 
Figure 1. All calibration gases including zero air must be introduced 
into the sample inlet of the analyzer system. For specific operating 
instructions refer to the manufacturer's manual.
    4.2  Insure that all flowmeters are properly calibrated, under the 
conditions of use, if appropriate, against an authoritative standard 
such as a soap-bubble meter or wet-test meter. All volumetric flowrates 
should be corrected to 25 deg. C and 760 mm Hg (101 kPa). A discussion 
on calibration of flowmeters is given in Reference 1.
    4.3  Select the operating range of the CO analyzer to be calibrated.
    4.4  Connect the signal output of the CO analyzer to the input of 
the strip chart recorder or other data collection device. All 
adjustments to the analyzer should be based on the appropriate strip 
chart or data device readings. References to analyzer responses in

[[Page 683]]

the procedure given below refer to recorder or data device responses.
    4.5  Adjust the calibration system to deliver zero air to the output 
manifold. The total air flow must exceed the total demand of the 
analyzer(s) connected to the output manifold to insure that no ambient 
air is pulled into the manifold vent. Allow the analyzer to sample zero 
air until a stable respose is obtained. After the response has 
stabilized, adjust the analyzer zero control. Offsetting the analyzer 
zero adjustments to +5 percent of scale is recommended to facilitate 
observing negative zero drift. Record the stable zero air response as 
ZCO.
    4.6  Adjust the zero air flow and the CO flow from the standard CO 
cylinder to provide a diluted CO concentration of approximately 80 
percent of the upper range limit (URL) of the operating range of the 
analyzer. The total air flow must exceed the total demand of the 
analyzer(s) connected to the output manifold to insure that no ambient 
air is pulled into the manifold vent. The exact CO concentration is 
calculated from:
[GRAPHIC] [TIFF OMITTED] TR31AU93.026

Where:

[CO]OUT=diluted CO concentration at the output manifold, ppm;
[CO]STD=concentration of the undiluted CO standard, ppm;
FCO=flow rate of the CO standard corrected to 25 deg. C and 760 mm 
          Hg, (101 kPa), L/min; and
FD=flow rate of the dilution air corrected to 25 deg. C and 760 mm 
          Hg, (101 kPa), L/min.

    Sample this CO concentration until a stable response is obtained. 
Adjust the analyzer span control to obtain a recorder response as 
indicated below:

Recorder response (percent scale)=
[GRAPHIC] [TIFF OMITTED] TR31AU93.027

Where:

URL=nominal upper range limit of the analyzer's operating range, and
ZCO=analyzer response to zero air, % scale.

    If substantial adjustment of the analyzer span control is required, 
it may be necessary to recheck the zero and span adjustments by 
repeating Steps 4.5 and 4.6. Record the CO concentration and the 
analyzer's response. 4.7 Generate several additional concentrations (at 
least three evenly spaced points across the remaining scale are 
suggested to verify linearity) by decreasing FCO or increasing 
FD. Be sure the total flow exceeds the analyzer's total flow 
demand. For each concentration generated, calculate the exact CO 
concentration using Equation (1). Record the concentration and the 
analyzer's response for each concentration. Plot the analyzer responses 
versus the corresponding CO concentrations and draw or calculate the 
calibration curve.
    5. Procedure Using Multiple Cylinder Method. Use the procedure for 
the dynamic dilution method with the following changes:
    5.1  Use a multi-cylinder system such as the typical one shown in 
Figure 2.
    5.2  The flowmeter need not be accurately calibrated, provided the 
flow in the output manifold exceeds the analyzer's flow demand.
    5.3  The various CO calibration concentrations required in Steps 4.6 
and 4.7 are obtained without dilution by selecting the appropriate 
certified standard cylinder.

                               References

    1. Quality Assurance Handbook for Air Pollution Measurement Systems, 
Volume II--Ambient Air Specific Methods, EPA-600/4-77-027a, U.S. 
Environmental Protection Agency, Environmental Monitoring Systems 
Laboratory, Research Triangle Park, NC 27711, 1977.
    2. A procedure for Establishing Traceability of Gas Mixtures to 
Certain National Bureau of Standards Standard Reference Materials. EPA-
600/7-81-010, U.S. Environmental Protection Agency, Environmental 
Monitoring Systems Laboratory (MD-77), Research Triangle Park, NC 27711, 
January 1981.

[[Page 684]]




[[Page 685]]




[47 FR 54922, Dec. 6, 1982; 48 FR 17355, Apr. 22, 1983]

[[Page 686]]

 Appendix D to Part 50--Measurement Principle and Calibration Procedure 
             for the Measurement of Ozone in the Atmosphere

                          measurement principle

    1. Ambient air and ethylene are delivered simultaneously to a mixing 
zone where the ozone in the air reacts with the ethylene to emit light, 
which is detected by a photomultiplier tube. The resulting photocurrent 
is amplified and is either read directly or displayed on a recorder.
    2. An analyzer based on this principle will be considered a 
reference method only if it has been designated as a reference method in 
accordance with Part 53 of this chapter and calibrated as follows:

                          calibration procedure

    1. Principle. The calibration procedure is based on the photometric 
assay of ozone (O3) concentrations in a dynamic flow system. The 
concentration of O3 in an absorption cell is determined from a 
measurement of the amount of 254 nm light absorbed by the sample. This 
determination requires knowledge of (1) the absorption coefficient 
() of O3 at 254 nm, (2) the optical path length (l) 
through the sample, (3) the transmittance of the sample at a wavelength 
of 254 nm, and (4) the temperature (T) and pressure (P) of the sample. 
The transmittance is defined as the ratio I/I0, where I is the 
intensity of light which passes through the cell and is sensed by the 
detector when the cell contains an O3 sample, and I0 is the 
intensity of light which passes through the cell and is sensed by the 
detector when the cell contains zero air. It is assumed that all 
conditions of the system, except for the contents of the absorption 
cell, are identical during measurement of I and I0. The quantities 
defined above are related by the Beer-Lambert absorption law,
[GRAPHIC] [TIFF OMITTED] TR31AU93.028

where:

    =absorption coefficient of O3 at 254 
nm=308plus-minus4 atm-1 cm-1 at 0 deg.C and 760 torr. 
(1, 2, 3, 4, 5, 6, 7)
    c=O3 concentration in atmospheres
    l=optical path length in cm

    In practice, a stable O3 generator is used to produce O3 
concentrations over the required range. Each O3 concentration is 
determined from the measurement of the transmittance (I/I0) of the 
sample at 254 nm with a photometer of path length l and calculated from 
the equation,
[GRAPHIC] [TIFF OMITTED] TR31AU93.029

The calculated O3 concentrations must be corrected for O3 
losses which may occur in the photometer and for the temperature and 
pressure of the sample.
    2. Applicability. This procedure is applicable to the calibration of 
ambient air O3 analyzers, either directly or by means of a transfer 
standard certified by this procedure. Transfer standards must meet the 
requirements and specifications set forth in Reference 8.
    3. Apparatus. A complete UV calibration system consists of an ozone 
generator, an output port or manifold, a photometer, an appropriate 
source of zero air, and other components as necessary. The configuration 
must provide a stable ozone concentration at the system output and allow 
the photometer to accurately assay the output concentration to the 
precision specified for the photometer (3.1). Figure 1 shows a commonly 
used configuration and serves to illustrate the calibration procedure 
which follows. Other configurations may require appropriate variations 
in the procedural steps. All connections between components in the 
calibration system downstream of the O3 generator should be of 
glass, Teflon, or other relatively inert materials. Additional 
information regarding the assembly of a UV photometric calibration 
apparatus is given in Reference 9. For certification of transfer 
standards which provide their own source of O3, the transfer 
standard may replace the O3 generator and possibly other components 
shown in Figure 1; see Reference 8 for guidance.
    3.1  UV photometer. The photometer consists of a low-pressure 
mercury discharge lamp, (optional) collimation optics, an absorption 
cell, a detector, and signal-processing electronics, as illustrated in 
Figure 1. It must be capable of measuring the transmittance, I/I0, 
at a wavelength of 254 nm with sufficient precision such that the 
standard deviation of the concentration measurements does not exceed the 
greater of 0.005 ppm or 3% of the concentration. Because the low-
pressure mercury lamp radiates at several wavelengths, the photometer 
must incorporate suitable means to assure that no O3 is generated 
in the cell by the lamp, and that at least 99.5% of the radiation sensed 
by the detector is 254 nm radiation. (This can be readily achieved by 
prudent selection of optical filter and detector response 
characteristics.) The length of the light path through the absorption 
cell must be known with an accuracy of at least 99.5%. In addition, the 
cell and associated plumbing must be designed to minimize loss of 
O3 from contact

[[Page 687]]

with cell walls and gas handling components. See Reference 9 for 
additional information.
    3.2  Air flow controllers. Devices capable of regulating air flows 
as necessary to meet the output stability and photometer precision 
requirements.
    3.3  Ozone generator. Device capable of generating stable levels of 
O3 over the required concentration range.
    3.4  Output manifold. The output manifold should be constructed of 
glass, Teflon, or other relatively inert material, and should be of 
sufficient diameter to insure a negligible pressure drop at the 
photometer connection and other output ports. The system must have a 
vent designed to insure atmospheric pressure in the manifold and to 
prevent ambient air from entering the manifold.
    3.5  Two-way valve. Manual or automatic valve, or other means to 
switch the photometer flow between zero air and the O3 
concentration.
    3.6  Temperature indicator. Accurate to plus-minus1 deg.C.
    3.7  Barometer or pressure indicator. Accurate to plus-minus2 
torr.
    4.  Reagents.
    4.1  Zero air. The zero air must be free of contaminants which would 
cause a detectable response from the O3 analyzer, and it should be 
free of NO, C2H4, and other species which react with O3. 
A procedure for generating suitable zero air is given in Reference 9. As 
shown in Figure 1, the zero air supplied to the photometer cell for the 
I0 reference measurement must be derived from the same source as 
the zero air used for generation of the ozone concentration to be 
assayed (I measurement). When using the photometer to certify a transfer 
standard having its own source of ozone, see Reference 8 for guidance on 
meeting this requirement.
    5.  Procedure.
    5.1  General operation. The calibration photometer must be dedicated 
exclusively to use as a calibration standard. It should always be used 
with clean, filtered calibration gases, and never used for ambient air 
sampling. Consideration should be given to locating the calibration 
photometer in a clean laboratory where it can be stationary, protected 
from physical shock, operated by a responsible analyst, and used as a 
common standard for all field calibrations via transfer standards.
    5.2  Preparation. Proper operation of the photometer is of critical 
importance to the accuracy of this procedure. The following steps will 
help to verify proper operation. The steps are not necessarily required 
prior to each use of the photometer. Upon initial operation of the 
photometer, these steps should be carried out frequently, with all 
quantitative results or indications recorded in a chronological record 
either in tabular form or plotted on a graphical chart. As the 
performance and stability record of the photometer is established, the 
frequency of these steps may be reduced consistent with the documented 
stability of the photometer.
    5.2.1  Instruction manual: Carry out all set up and adjustment 
procedures or checks as described in the operation or instruction manual 
associated with the photometer.
    5.2.2  System check: Check the photometer system for integrity, 
leaks, cleanliness, proper flowrates, etc. Service or replace filters 
and zero air scrubbers or other consumable materials, as necessary.
    5.2.3  Linearity: Verify that the photometer manufacturer has 
adequately established that the linearity error of the photometer is 
less than 3%, or test the linearity by dilution as follows: Generate and 
assay an O3 concentration near the upper range limit of the system 
(0.5 or 1.0 ppm), then accurately dilute that concentration with zero 
air and reassay it. Repeat at several different dilution ratios. Compare 
the assay of the original concentration with the assay of the diluted 
concentration divided by the dilution ratio, as follows
[GRAPHIC] [TIFF OMITTED] TR31AU93.030

where:

    E=linearity error, percent
    A1=assay of the original concentration
    A2=assay of the diluted concentration
    R=dilution ratio=flow of original concentration divided by the total 
flow

    The linearity error must be less than 5%. Since the accuracy of the 
measured flow-rates will affect the linearity error as measured this 
way, the test is not necessarily conclusive. Additional information on 
verifying linearity is contained in Reference 9.
    5.2.4  Intercomparison: When possible, the photometer should be 
occasionally intercompared, either directly or via transfer standards, 
with calibration photometers used by other agencies or laboratories.
    5.2.5  Ozone losses: Some portion of the O3 may be lost upon 
contact with the photometer cell walls and gas handling components. The 
magnitude of this loss must be determined and used to correct the 
calculated O3 concentration. This loss must not exceed 5%. Some 
guidelines for quantitatively determining this loss are discussed in 
Reference 9.
    5.3  Assay of O3 concentrations.
    5.3.1  Allow the photometer system to warm up and stabilizer.
    5.3.2  Verify that the flowrate through the photometer absorption 
cell, F allows the cell to be flushed in a reasonably short period of 
time (2 liter/min is a typical flow). The precision of the measurements 
is inversely related to the time required for flushing, since the 
photometer drift error increases with time.

[[Page 688]]

    5.3.3  Insure that the flowrate into the output manifold is at least 
1 liter/min greater than the total flowrate required by the photometer 
and any other flow demand connected to the manifold.
    5.3.4  Insure that the flowrate of zero air, Fz, is at least 1 
liter/min greater than the flowrate required by the photometer.
    5.3.5  With zero air flowing in the output manifold, actuate the 
two-way valve to allow the photometer to sample first the manifold zero 
air, then Fz. The two photometer readings must be equal 
(I=Io).

    Note: In some commercially available photometers, the operation of 
the two-way valve and various other operations in section 5.3 may be 
carried out automatically by the photometer.

    5.3.6  Adjust the O3 generator to produce an O3 
concentration as needed.
    5.3.7  Actuate the two-way valve to allow the photometer to sample 
zero air until the absorption cell is thoroughly flushed and record the 
stable measured value of Io.
    5.3.8  Actuate the two-way valve to allow the photometer to sample 
the ozone concentration until the absorption cell is thoroughly flushed 
and record the stable measured value of I.
    5.3.9  Record the temperature and pressure of the sample in the 
photometer absorption cell. (See Reference 9 for guidance.)
    5.3.10  Calculate the O3 concentration from equation 4. An 
average of several determinations will provide better precision.
[GRAPHIC] [TIFF OMITTED] TR31AU93.032

where:

    [O3]OUT=O3 concentration, ppm
    =absorption coefficient of O3 at 254 nm=308 atm-1 
cm-1 at 0 deg.C and 760 torr
    l=optical path length, cm
    T=sample temperature, K
    P=sample pressure, torr
    L=correction factor for O3 losses from 5.2.5=(1-fraction 
O3 lost).

    Note: Some commercial photometers may automatically evaluate all or 
part of equation 4. It is the operator's responsibility to verify that 
all of the information required for equation 4 is obtained, either 
automatically by the photometer or manually. For ``automatic'' 
photometers which evaluate the first term of equation 4 based on a 
linear approximation, a manual correction may be required, particularly 
at higher O3 levels. See the photometer instruction manual and 
Reference 9 for guidance.
    5.3.11  Obtain additional O3 concentration standards as 
necessary by repeating steps 5.3.6 to 5.3.10 or by Option 1.
    5.4  Certification of transfer standards. A transfer standard is 
certified by relating the output of the transfer standard to one or more 
ozone standards as determined according to section 5.3. The exact 
procedure varies depending on the nature and design of the transfer 
standard. Consult Reference 8 for guidance.
    5.5  Calibration of ozone analyzers. Ozone analyzers are calibrated 
as follows, using ozone standards obtained directly according to section 
5.3 or by means of a certified transfer standard.
    5.5.1  Allow sufficient time for the O3 analyzer and the 
photometer or transfer standard to warmup and stabilize.
    5.5.2  Allow the O3 analyzer to sample zero air until a stable 
response is obtained and adjust the O3 analyzer's zero control. 
Offsetting the analyzer's zero adjustment to +5% of scale is recommended 
to facilitate observing negative zero drift. Record the stable zero air 
response as ``Z''.
    5.5.3  Generate an O3 concentration standard of approximately 
80% of the desired upper range limit (URL) of the O3 analyzer. 
Allow the O3 analyzer to sample this O3 concentration standard 
until a stable response is obtained.
    5.5.4  Adjust the O3 analyzer's span control to obtain a 
convenient recorder response as indicated below:
    recorder response (%scale) =
    [GRAPHIC] [TIFF OMITTED] TR31AU93.033
    
where:

    URL=upper range limit of the O3 analyzer, ppm
    Z=recorder response with zero air, % scale

    Record the O3 concentration and the corresponding analyzer 
response. If substantial adjustment of the span control is necessary, 
recheck the zero and span adjustments by repeating steps 5.5.2 to 5.5.4.
    5.5.5  Generate several other O3 concentration standards (at 
least 5 others are recommended) over the scale range of the O3 
analyzer by adjusting the O3 source or by Option 1. For each 
O3 concentration standard, record the O3 and the corresponding 
analyzer response.
    5.5.6  Plot the O3 analyzer responses versus the corresponding 
O3 concentrations and draw the O3 analyzer's calibration curve 
or calculate the appropriate response factor.
    5.5.7  Option 1: The various O3 concentrations required in 
steps 5.3.11 and 5.5.5 may be obtained by dilution of the O3 
concentration generated in steps 5.3.6 and 5.5.3. With this option, 
accurate flow measurements are required. The dynamic calibration system 
may be modified as shown in Figure 2 to allow for dilution air to be 
metered in downstream of the O3 generator. A mixing chamber between 
the O3 generator and the output manifold is also required. The 
flowrate through the O3

[[Page 689]]

generator (Fo) and the dilution air flowrate (FD) are measured 
with a reliable flow or volume standard traceable to NBS. Each O3 
concentration generated by dilution is calculated from:
[GRAPHIC] [TIFF OMITTED] TR31AU93.031

where:
    [O3]'OUT=diluted O3!concentration, ppm
    F0=flowrate through the O3!generator, liter/min
    FD=diluent air flowrate, liter/min

                               References

    1. E.C.Y. Inn and Y. Tanaka, ``Absorption coefficient of Ozone in 
the Ultraviolet and Visible Regions'', J. Opt. Soc. Am., 43, 870 (1953).
    2. A. G. Hearn, ``Absorption of Ozone in the Ultraviolet and Visible 
Regions of the Spectrum'', Proc. Phys. Soc. (London), 78, 932 (1961).
    3. W. B. DeMore and O. Raper, ``Hartley Band Extinction Coefficients 
of Ozone in the Gas Phase and in Liquid Nitrogen, Carbon Monoxide, and 
Argon'', J. Phys. Chem., 68, 412 (1964).
    4. M. Griggs, ``Absorption Coefficients of Ozone in the Ultraviolet 
and Visible Regions'', J. Chem. Phys., 49, 857 (1968).
    5. K. H. Becker, U. Schurath, and H. Seitz, ``Ozone Olefin Reactions 
in the Gas Phase. 1. Rate Constants and Activation Energies'', Int'l 
Jour. of Chem. Kinetics, VI, 725 (1974).
    6. M. A. A. Clyne and J. A. Coxom, ``Kinetic Studies of Oxy-halogen 
Radical Systems'', Proc. Roy. Soc., A303, 207 (1968).
    7. J. W. Simons, R. J. Paur, H. A. Webster, and E. J. Bair, ``Ozone 
Ultraviolet Photolysis. VI. The Ultraviolet Spectrum'', J. Chem. Phys., 
59, 1203 (1973).
    8. ``Transfer Standards for Calibration of Ambient Air Monitoring 
Analyzers for Ozone'', EPA Publication available from EPA, Department E 
(MD-77), Research Triangle Park, NC 27711.
    9. ``Technical Assistance Document for the Calibration of Ambient 
Ozone Monitors'', EPA Publication available from EPA, Department E (MD-
77), Research Triangle Park, NC 27711.

[[Page 690]]




[[Page 691]]


    Temporary Alternative Calibration procedure--(Boric Acid-Potassium 
Iodide). This procedure may be used as an alternative to the Ultraviolet 
Photometry procedure for direct calibration of ozone analyzers--but not 
to certify transfer standards--until [18 months after the date of final 
promulgation]. After that time this procedure can be used only as a 
transfer standard in accordance with the guidance and specifications set 
forth in Reference 4, ``Transfer Standards for Calibration of Ambient 
Air Monitoring Analyzers for Ozone''.
    1. Principle. This calibration procedure (1) is based upon the 
reaction between ozone (O3) and potassium iodide (KI) to release 
iodine (I2) according to the stoichiometric equation: (2)


             O3+2I-+2H+I2+H2O+O2                            (1)
                                                                        

The stoichiometry is such that the amount of I2 released is 
equivalent to the amount of O3, absorbed. Ozone is absorbed in a 
0.1M boric acid (H3BO3) solution containing 1% KI, and the 
I2 released reacts with excess iodide ion (I-) to form 
triiodide ion (I-3) which is measured spectrophotometrically 
at a wavelength of 352 nm. The output of a stable O3 generator is 
assayed in this manner, and the generator is immediately used to 
calibrate the O3 analyzer. The O3 generator must be used 
immediately after calibration and without physical movement, and it is 
recalibrated prior to each use. Alternatively, the O3 analyzer may 
be calibrated by assaying the O3 concentrations using the 
prescribed procedure while simultaneously measuring the corresponding 
O3 analyzer responses. Ozone concentration standards may also be 
generated by an optional dilution technique. With this option, the 
highest O3 concentration standard is assayed using the prescribed 
procedure. The additional O3 concentration standards required are 
then obtained by dilution.
    2. Apparatus. Figures 1 and 2 illustrate a typical BAKI O3 
calibration system and show the suggested configuration of the 
components listed below. All connections between components downstream 
of the O3 generator should be of glass, Teflon or other relatively 
inert material.
    2.1  Air flow controller. Device capable of maintaining a constant 
air flowrate through the O3 generator within plus-minus2%.
    2.2  Air flowmeter. Calibrated flowmeter capable of measuring and 
monitoring the air flowrate through the O3 generator within 
plus-minus2%.
    2.3  Ozone generator. Device capable of generating stable levels of 
O3 over the required concentration range.
    2.4  Output manifold. The output manifold should be constructed of 
glass, Teflon, or other relatively inert material and should be of 
sufficient diameter to insure a negligible pressure drop at the analyzer 
connection. The system must have a vent designed to insure atmospheric 
pressure in the manifold and to prevent ambient air from entering the 
manifold.
    2.5  Impingers. All glass impingers with the specifications 
indicated in Figure 2 are recommended. The impingers may be purchased 
from most major glassware suppliers. Two impingers connected in series 
are used to insure complete collection of the sample.
    2.6  Air pump and flow controller. Any pump and flow control device 
capable of maintaining a constant flowrate of 0.4-0.6 liter-min through 
the impingers may be used. A critical orifice as described by Lodge et 
al. (3) is recommended. The orifice should be protected against moisture 
and particulate matter with a membrane filter or moisture trap 
containing Drierite, silica gel, or glass wool. The air pump must be 
capable of maintaining a pressure differential of at least 0.6-0.7 
atmospheres across the critical orifice. Alternatively, a needle valve 
could be used with the pump to adjust the flow through the impingers. A 
flowmeter is then recommended to monitor the flow. The needle valve-
flowmeter combination should be protected against moisture and 
particulate matter with a membrane filter or moisture trap.
    2.7  Thermometer. Accurate to plus-minus1 deg.C.
    2.8  Barometer. Accurate to plus-minus2 torr.
    2.9  Volumetric flasks (Class A). 25, 100, 200, 500, 1000-ml.
    2.10   Pipets (Class A). 1, 5, 10, 15, 20, and 25-ml volumetric; 1-
ml or 10-ml graduated.
    2.11  Spectrometer. Capable of measuring absorbance at 352 nm with 
an absolute accuracy of plus-minus1% and linear response over the 
range of 0-1.0 absorbance units. The photometric accuracy may be checked 
using optical glass filters which have certified absorbance values at 
specified wavelengths. Matched 1-cm or 2-cm cells should be used for all 
absorbance determinations.
    3. Reagents.
    3.1  Zero air. The zero air must be free of contaminants which will 
cause a detectable response of the O3!analyzer or which might react 
with 1% BAKI. Air meeting this requirement may be obtained by: (1) 
Passing it through silica gel for drying; (2) treating it with O3
!to convert any nitric oxide (NO) to nitrogen dioxide (NO2); (3) 
passing it through activated charcoal (6-14 mesh) and molecular sieve 
(6-16 mesh, type 4A) to remove any NO2, hydrocarbons, and traces of 
water vapor; and (4) passing it through a 2-micron filter to remove any 
particulate matter.
    3.2  Boric acid (H3BO3), ACS reagent grade.
    3.3  Potassium iodide (KI), ACS reagent grade.
    3.4  Hydrogfen peroxide (H2O2), ACS reagent grade, 3% or 
30%.
    3.5  Potassium iodate (KIO3), ACS reagent grade certified 0.1N.

[[Page 692]]

    3.6  Sulfuric acid (H2SO4), ACS reagent grade, 95% to 98%.
    3.7  Distilled water. Used for preparation of all reagents.
    3.8  Absorbing reagent. Dissolve 6.2 g of boric acid 
(H3BO3) in approximately 750 ml of distilled water in an amber 
1000-ml volumetric flask. The flask may be heated gently to speed 
dissolution of the H3BO3, but the solution must then be cooled 
to room temperature or below before proceeding with the reagent 
preparation. [While the H3BO3 solution is cooling, prepare the 
hydrogen peroxide (H2O2) solution according to the directions 
in section 3.9.] When the H3BO3 solution has cooled, add 10 g 
of potassium iodide (KI) to the H3BO3 solution and dissolve. 
Add 1 ml of 0.0021% H2O2 solution (see 3.9) and mix 
thoroughly. Within 5 minutes after adding the peroxide, dilute to volume 
with distilled water, mix, and determine the absorbance of this BAKI 
solution at 352 nm against distilled water as the reference. The pH of 
the BAKI solution should be 5.1plus-minus0.2.
    Set the absorbing solution aside for 2 hours and then redetermine 
the absorbance at 352 nm against distilled water as the reference. If 
the resultant absorbance from this second determination is at least 
0.008 absorbance units/cm greater than the first determination, the 
absorbing reagent is ready for use. If no increase or an increase of 
less than 0.008 absorbance units/cm is observed, the KI reagent probably 
contains an excessive amount of a reducing contaminant and must be 
discarded. In this event, prepare fresh absorbing reagent using a 
different numbered lot of KI. If unacceptable absorbing reagent results 
from different lots of KI, test the possibility of contamination in the 
H3BO3 by using a different numbered lot of H3BO3.
    3.9  Hydrogen peroxide solution 0.0021%. Using a graduated pipet, 
add 0.7 ml of 30% or 7.0 ml of 3% hydrogen peroxide (H2O2) to 
approximately 200 ml of distilled water in a 500-ml volumetric flask, 
dilute to volume with distilled water and mix thoroughly. To prepare the 
0.0021% solution, pipet 5 ml of the above solution into 50 ml of 
distilled water in a 100-ml volumetric flask, dilute to volume with 
distilled water, and mix thoroughly. This 0.0021% H2O2 
solution must be prepared fresh each time a fresh batch of absorbing 
reagent is prepared. Therefore, the remaining contents of both 
volumetric flasks should be discarded after treatment of the BAKI 
absorbing reagent (see section 3.8).
    3.10  Standard potassium iodate solution (0.1N). Use a commercial 
standard solution of potassium iodate (KIO3) having a certified 
normality.
    3.11  Sulfuric acid (1N). Dilute 28 ml of concentrated (95-98%) 
sulfuric acid (H2SO4) to volume in a 1000-ml volumetric flask.
    4. Procedure.
    4.1  Assemble an ozone calibration system such as shown in Figure 1.
    4.2  Assemble the KI sampling train such as shown in Figure 2. All 
connections between the various components must be leak tight and may be 
made using grease-free ball joint fittings, heat-shrinkable Teflon 
tubing, or Teflon tube fittings. The connection to the O3 output 
manifold should be made using 6 mm (\1/4\ in.) Teflon tubing not to 
exceed 1.5 meters in length.
    4.3  Calibrate all flowmeters and critical orfices under the 
conditions of use against a reliable flow or volume standard such as a 
NBS traceable bubble flowmeter or wet-test meter. Correct all volumetric 
flowrates to 25 deg.C and 760 torr as follows:
[GRAPHIC] [TIFF OMITTED] TR31AU93.034

where:

    FR=flowrate corrected to reference conditions (25 deg. C and 
760 torr), liter/min
    FS=flowrate at sampling conditions, liter/min
    PS=barometric pressure at sampling conditions, torr
    PH20=vapor pressure of H2 at TS, torr (For wet volume 
standard. For a dry standard, PH20=O)
    TS=temperature at sampling conditions,  deg.C

    4.4  KI calibration curve.
    4.4.1  Prepare iodine standards, fresh when needed, as follows:
    A. Accurately pipet 10 ml of 0.1N standard potassium iodate 
(KIO3) solution into a 100-ml volumetric flask containing 
approximately 50 ml of distilled water. Add 1 g of potassium iodide (KI) 
and 5 ml of 1N sulfuric acid (H2SO4), dilute to volume with 
distilled water, and mix thoroughly.
    B. Immediately before use, pipet 10 ml of the iodine (I2) 
solution prepared in step A above into a 100-ml volumetric flask and 
dilute to volume with absorbing reagent. Then further dilute this 
solution by pipetting 10 ml of it into a 200-ml volumetric flask and 
diluting it to volume with absorbing reagent.
    C. In turn, pipet 5, 10, 15, 20, and 25 ml aliquots of the final 
I2 solution prepared in step B above into a series of 25-ml 
volumetric flasks. Dilute each to volume with absorbing reagent and mix 
thoroughly. To prevent I2 losses by volatilization, the flasks 
should remain stoppered until absorbance measurements are made. 
Absorbance measurements (see 4.4.2) should be taken within 20 minutes 
after preparation of the I2 standards.
    4.4.2  Determine the absorbance of each I2 standard at 352 nm. 
Also measure the absorbance of a sample of unexposed absorbing reagent. 
Determine the net absorbance of each I2 standard as:

[[Page 693]]

[GRAPHIC] [TIFF OMITTED] TR31AU93.035

    4.4.3  For each I2 standard, calculate the net absorbance/cm 
as:
[GRAPHIC] [TIFF OMITTED] TR31AU93.036

where:

    b=spectrophotometer cell path length, cm

    4.4.4  For each I2 standard, calculate the I2 
concentration in mole/liter as:
[GRAPHIC] [TIFF OMITTED] TR31AU93.037

where:

    [I2]i=concentration of each I2 standard, mole 
I2/liter
    NKIO3=normality of KIO3 (from 3.10), equivalent liter
    Vi=volume of I2 solution (from step 4.4.1.C)=5, 10, 15, 
20, or 25 ml

    4.4.5  Plot net absorbance/cm (y-axis) versus the mole I2/liter 
(x-axis) for each I2 standard and draw the KI calibration curve. 
Calculate the slope of the curve in liter mole-1 cm-1 and 
record as Sc. The value of the slope should be 
[26,000plus-minus780. If the slope is not within this range, and 
the photometric accuracy of the spectrophotometer meets the 
specifications given in 2.11, repeat the procedure using freshly 
prepared I2 standards. If the slope is still not within the 
specified range, repeat the procedure using a different lot of certified 
0.1N KIO3 to prepare the I2 standards.
    4.5  Calibration of the ozone generator.
    4.5.1  Adjust the air flow through the O3 generator to the 
desired flowrate and record as F0. At all times the air flow 
through the generator must be greater than the total flow required by 
the sampling systems, to assure exhaust flow at the vent.
    4.5.2  With the O3 generator off, flush the system with zero 
air for at least 15 minutes to remove residual O3. Pipet 10 ml of 
absorbing reagent into each of 2 impingers and connect them into the 
sampling train as shown in Figure 2. Draw air from the output manifold 
of the O3 calibration system through the sampling train at 0.4-0.6 
liter/min for 10 minutes. Immediately transfer the exposed solutions to 
clean spectrophotometer cells. Determine the net absorbance (sample 
absorbance-unexposed reagent absorbance) of each solution at 352 nm 
within three minutes. Add the net absorbances of the two solutions to 
obtain the total net absorbance. Calculate the indicated O3 
concentration (system blank) as equivalent O3 concentration 
according to section 4.5.4. If the system blank is greater than 0.005 
ppm O3, continue flushing the O3 generation system for an 
additional 30 minutes and redetermine the system blank. If the system 
blank is still greater than 0.005 ppm O3, the zero air probably 
contains traces of an oxidizing contaminant, and the activated charcoal 
and molecular sieve (see section 3.1) should be replaced.
    4.5.3  Adjust the O3 generator to generate an O3 
concentration in the range of interest and allow the system to 
equilibrate for about 15 minutes. The uncalibrated O3 analyzer to 
be calibrated can conveniently be used to indicate the stability of the 
O3 generator output. When the O3 generator output has 
stabilized, pipet 10 ml of absorbing reagent into each impinger. Draw 
O3 from the output manifold of the O3 calibration system 
through the sampling train at 0.4-0.6 liter/min. Use a sample time of 
between 10 and 30 minutes such that a total net absorbance between 0.1 
and 1.0 absorbance units is obtained. (At an O3 concentration of 
0.1 ppm and a sampling rate of 0.5 liter/min, a total net absorbance 
>0.1 absorbance units should be obtained if a sampling time of 20 
minutes and 1-cm spectrophotometer cells are used.) Immediately after 
collection, transfer the exposed solutions to clean spectrophotometer 
cells. Determine the net absorbance (sample absorbance--unexposed 
reagent absorbance) of each solution at 352 nm within three minutes. Add 
the net absorbances of the two solutions to obtain the total net 
absorbance.
    4.5.4  Calculation of ozone concentration.
    4.5.4.1  Calculate the total volume of air sampled, corrected to 
reference conditions of 25 deg.C and 760 torr as:
[GRAPHIC] [TIFF OMITTED] TR31AU93.038

where:

    VR=volume of air sampled, corrected to reference conditions, 
liter
    FR=sampling flowrate corrected to reference conditions, liter/
min
    tS=sampling time, min

    4.5.4.2  Calculate the I2 released in moles as:
    [GRAPHIC] [TIFF OMITTED] TR31AU93.039
    
where: Total net absorbance=sum of net absorbances for the two solutions

    0.01=volume of absorbing reagent in each impinger, liter
    Sc=slope of KI calibration curve, liter mole- 1 cm- 1

[[Page 694]]

    b=spectrophotometer cell path length, cm

    4.5.4.3  Calculate the l of O3 absorbed as:
    [GRAPHIC] [TIFF OMITTED] TR31AU93.040
    
    4.5.4.4  Calculate the O3 concentration in ppm as:
    [GRAPHIC] [TIFF OMITTED] TR31AU93.041
    
    4.5.5  Repeat steps 4.5.3 and 4.5.4 at least one more time at the 
same O3 generator setting. Average the two (or more) determinations 
and record the average along with the O3 generator setting.
    4.5.6  Adjust the O3 generator to obtain other O3 
concentrations over the desired range. Determine each O3 
concentration using the procedure given above. Five or more O3 
concentrations are recommended. Plot the O3 concentrations versus 
the corresponding O3 generator settings and draw the O3 
generator calibration curve.
    4.6 Calibration of the ozone analyzer.
    4.6.1  Allow sufficient time for the O3 analyzer to warm-up and 
stabilize.
    4.6.2  Allow the O3 analyzer to sample zero air until a stable 
response is obtained and adjust the O3 analyzer's zero control. 
Offsetting the analyzer's zero adjustment to +5% of scale is recommended 
to facilitate observing negative zero drift. Record the stable zero air 
response as ``Z''.
    4.6.3  Using the O3 generator as calibrated above and the same 
F0, generate an O3 concentration near 80% of the desired upper 
range limit (URL) of the O3 analyzer.
    4.6.4  Allow the O3 analyzer to sample this O3 
concentration until a stable response is obtained. Adjust the analyzer's 
span control to obtain a convenient recorder response as indicated 
below:

    recorder response(%scale)=
    [GRAPHIC] [TIFF OMITTED] TR31AU93.042
    
[O3]OUT=O3 concentration at the output manifold, ppm URL 
= upper range limit of the O3 analyzer, ppm, Z = recorder response 
with zero air, % scale.

Record the O3 concentration and the O3 analyzer response. If 
substantial adjustment of the span control is necessary, recheck the 
zero and span adjustments by repeating steps 4.6.2 through 4.6.4.
    4.6.5  Generate several other O3 concentrations (at least 5 
others are recommended) over the scale range of the O3 analyzer by 
adjusting the O3 generator settings (preferably the same settings 
as used in section 4.5) or by Option 1. For each O3 concentration, 
allow for a stable analyzer response, then record the response and the 
corresponding O3 concentration.
    4.6.6  Plot the O3 analyzer responses versus the corresponding 
O3 concentrations and draw the O3 analyzer's calibration curve 
or calculate the appropriate response factor.
    4.6.7  Option 1: The various O3 concentrations required in step 
4.6.5 may be obtained by dilution of the O3 concentration generated 
in section 4.6.3. With this option, accurate flow measurements are 
required. The dynamic calibration system must be modified as shown in 
Figure 3 to allow for dilution air to be metered in downstream of the 
O3 generator. A mixing chamber between the O3 generator and 
the output manifold is also required. The flowrate through the O3 
generator (F0) and the dilution air flowrate (FD) are measured 
with a reliable flow or volume standard traceable to NBS. The highest 
O3 concentration standard required (80% URL) is assayed according 
to the procedure in section 4.5. Each O3 concentration generated by 
dilution is calculated from:
[GRAPHIC] [TIFF OMITTED] TR31AU93.043

where: [O3']'OUT = diluted O3 concentration, ppm; 
F0 = flowrate through the O3 generator, liter/min; FD = 
diluent air flowrate, liter/min.

    Note: Direct calibration of the O3 analyzer may also be 
accomplished by assaying the O3 concentrations using the procedure 
in section 4.5 while simultaneously measuring the

[[Page 694]]

corresponding O3 analyzer responses as specified in section 4.6.

                               References

    1. D. L. Flamm, ``Analysis of Ozone at Low Concentrations with Boric 
Acid Buffered KI,'' Environ. Sci. Technol., 11, 978 (1977).
    2. B. E. Saltzman and N. Gilbert, ``Iodometric Microdetermination of 
Organic Oxidants and Ozone,'' Anal. Chem., 31, 1914 (1959).
    3. J. P. Lodge, Jr., J. B. Pate, B. E. Ammons, and G. A. Swanson, 
``The Use of Hypodermic Needles as Critical Orifices in Air Sampling,'' 
J. Air Poll. Control Assoc., 16, 197 (1966).
    4. ``Transfer Standards for Calibration of Ambient Air Monitoring 
Analyzers for Ozone,'' EPA Publication available from EPA, Department 
E(MD-77), Research Triangle Park, NC 27711.

[[Page 696]]




[[Page 697]]





[[Page 698]]




[44 FR 8224, Feb. 8, 1979]

[[Page 699]]



      Appendix E to Part 50--Reference Method for Determination of 
                   Hydrocarbons Corrected for Methane

    1. Principle and Applicability.
    1.1  Measured volumes of air are delivered semicontinuously (4 to 12 
times per hour) to a hydrogen flame ionization detector to measure its 
total hydrocarbon (THC) content. An aliquot of the same air sample is 
introduced into a stripper column which removes water, carbon dioxide, 
and hydrocarbons other than methane. Methane and carbon monoxide are 
passed quantitatively to a gas chromatographic column where they are 
separated. The methane is eluted first, and is passed unchanged through 
a catalytic reduction tube into the flame ionization detector. The 
carbon monoxide is eluted into the catalytic reduction tube where it is 
reduced to methane before passing through the flame ionization detector. 
Between analyses the stripper column is backflushed to prepare it for 
subsequent analysis. Hydrocarbon concentrations corrected for methane 
are determined by subtracting the methane value from the total 
hydrocarbon value.
    Two modes of operation are possible: (1) A complete chromatographic 
analysis showing the continuous output from the detector for each sample 
injection;
    (2) The system is programed for automatic zero and span to display 
selected band widths of the chromatogram. The peak height is then used 
as the measure of the concentration. The former operation is referred to 
as the chromatographic or spectro mode and the latter as the barographic 
or ``normal'' mode depending on the make of analyzer.
    1.2  The method is applicable to the semicontinuous measurement of 
hydrocarbons corrected for methane in ambient air. The carbon monoxide 
measurement, which is simultaneously obtained in this method, is not 
required in making measurements of hydrocarbons corrected for methane 
and will not be dealt with here.
    2. Range and Sensitivity.
    2.1  Instruments are available with various range combinations. For 
atmospheric analysis the THC range is 0-13.1 mg./m.3 (0-20 p.p.m.) 
carbon (as CH4) and the methane range is 0-6.55 mg./m.3 (0-10 
p.p.m.). For special applications, lower ranges are available and in 
these applications the range for THC is 0-1.31 mg./m.3 (0-2 p.p.m.) 
carbon (as CH4) and for methane the range is 0-1.31 mg./m.3 
(0-2 p.p.m.).
    2.2  For the higher, atmospheric analysis ranges the sensitivity for 
THC is 0.065 mg./m.3 (0.1 p.p.m.) carbon (as CH4) and for 
methane the sensitivity is 0.033 mg./m.3 (0.05 p.p.m.). For the 
lower, special analysis ranges the sensitivity is 0.016 mg./m.3 
(0.025 p.p.m.) for each gas.
    3. Interferences.
    3.1  No interference in the methane measurement has been observed. 
The THC measurement typically includes all or a portion of what is 
generally classified as the air peak interference. This effect is 
minimized by proper plumbing arrangements or is negated electronically.
    4. Precision, Accuracy, and Stability.
    4.1  Precision determined with calibration gases is 
plus-minus0.5 percent of full scale in the higher, atmospheric 
analysis ranges.
    4.2  Accuracy is dependent on instrument linearity and absolute 
concentration of the calibration gases. An accuracy of 1 percent of full 
scale in the higher, atmospheric analysis ranges and 2 percent of full 
scale in the lower, special analysis ranges can be obtained.
    4.3  Variations in ambient room temperature can cause changes in 
performance characteristics. This is due to shifts in oven temperature, 
flow rates, and pressure with ambient temperature change. The instrument 
should meet performance specifications with room temperature changes of 
plus-minus3 deg. C. Baseline drift is automatically corrected in 
the barographic mode.
    5. Apparatus. 5.1  Commercially Available THC, CH4, and CO 
Analyzer. Instruments should be installed on location and demonstrated, 
preferably by the manufacturer, or his representative, to meet or exceed 
manufacturer's specifications and those described in this method.
    5.2  Sample Introduction System. Pump, flow control valves, 
automatic switching valves, and flowmeter.
    5.3  Filter (In-line). A binder-free, glass-fiber filter with a 
porosity of 3 to 5 microns should be immediately downstream from the 
sample pump.
    5.4  Stripper or Precolumn. Located outside of the oven at ambient 
temperature. The column should be repacked or replaced after the 
equivalent of 2 months of continuous operation.
    5.5  Oven. For containing the analytical column and catalytic 
converter. The oven should be capable of maintaining an elevated 
temperature constant within plus-minus0.5 deg. C. The specific 
temperature varies with instrument manufacturer.
    6. Reagents.
    6.1  Combustion Gas. Air containing less than 1.3 mg./m.3 (2 
p.p.m.) hydrocarbon as methane.
    6.2  Fuel. Hydrogen or a mixture of hydrogen and inert gas 
containing less than 0.065 mg./m.3 (0.1 p.p.m.) hydrocarbons as 
methane.
    6.3  Carrier Gas. Helium, nitrogen, air or hydrogen containing less 
than 0.005 mg./m.3 (0.1 p.p.m.) hydrocarbons as methane.
    6.4  Zero Gas. Air containing less than 0.065 mg./m.3 (0.1 
p.p.m.) total hydrocarbons as methane.

[[Page 700]]

    6.5  Calibration Gases. Gases needed for linearity checks (peak 
heights) are determined by the ranges used. Calibration gases 
corresponding to 10, 20, 40, and 80 percent of full scale are needed. 
Gases must be provided with certification or guaranteed analysis. 
Methane is used for both the total hydrocarbon measurement and methane 
measurement.
    6.6  Span Gas. The calibration gas corresponding to 80 percent of 
full scale is used to span the instrument.
    7. Procedure.
    7.1  Calibrate the instrument as described in 8.1. Introduce sample 
into the system under the same conditions of pressure and flow rates as 
are used in calibration. (The pump is bypassed only when pressurized 
cylinder gases are used.) Figure E1 shows a typical flow diagram; for 
specific operating instructions refer to manufacturer's manual.
    8. Calibration.
    8.1  Calibration Curve. Determine the linearity of the system for 
THC and methane in the barographic mode by introducing zero gas and 
adjusting the respective zeroing controls to indicate a recorder reading 
of zero. Introduce the span gas and adjust the span control to indicate 
the proper value on the recorder scale. Recheck zero and span until 
adjustments are no longer necessary. Introduce intermediate calibration 
gases and plot the values obtained. If a smooth curve is not obtained, 
calibration gases may need replacement.
    9. Calculation.
    9.1  Determine concentrations of total hydrocarbons (as CH4) 
and CH4, directly from the calibration curves. No calculations are 
necessary.
    9.2  Determine concentration of hydrocarbons corrected for methane 
by subtracting the methane concentration from the total hydrocarbon 
concentration.
    9.3  Conversion between p.p.m. and mg./m.3 values for total 
hydrocarbons (as CH4) methane and hydrocarbons corrected for 
methane are made as follows:

 p.p.m. carbon (as CH4)=[mg. carbon (as CH4)/m.3] x 1.53

    10. Bibliography.
    Fee, G., ``Multi-Parameter Air Quality Analyzer'', ISA Proceedings 
AID/CHEMPID Symposium, Houston, TX, April 19-21, 1971.
    Villalobos, R., and Chapman, R. L., ``A Gas Chromatographic Method 
for Automatic Monitoring of Pollutants in Ambient Air'', ibid.
    Stevens, R. K., ``The Automated Gas Chromatograph as an Air 
Pollutant Monitor'', 1970 Conference on Environmental Toxicology, U.S. 
Air Force, Wright-Patterson Air Force Base, Dayton, OH.
    Stevens, R. K., and O'Keeffe, A. E., Anal. Chem. 42, 143A (1970).
    Schuck, E. A., Altshuller, A. P., Barth, D. S. and Morgan, G. B., 
``Relationship of Hydrocarbons to Oxidants in Ambient Atmospheres'', J. 
Air Poll. Cont. Assoc. 20, 297-302 (1970).
    Stevens, R. K., O'Keeffe, A. E., and Ortman, G. C., ``A Gas 
Chromatographic Approach to the Semi-Continuous Monitoring of 
Atmospheric Carbon Monoxide and Methane'', Proceedings of 11th 
Conference on Methods in Air Pollution on Industrial Hygiene Studies, 
Berkeley, CA, March 30-April 1, 1970.
    Swinnerton, J. W., Linnenbom, V. J. and Check, C. H., Environ. Sci. 
Technol. 3, 836 (1969).
    Williams, I. G., Advances in Chromatography, Giddings, J. C., and 
Keller, R. A., editors, Marcell Dekker, N.Y. (1968), pp. 173-182.
    Altshuller, A. P., Kopcznski, S. L., Lonneman, W. A., Becker, T. L. 
and Slater, R., Environ. Sci. Technol. 1, 899 (1967).
    Altshuller, A. P., Cohen, I. R., and Purcell, T. C., Can. J. Chem., 
44, 2973 (1966).
    DuBois, L., Zdrojewski, A., and Monkman, J. L., J. Air Poll. Cont. 
Assoc. 16, 135 (1966).
    Ortman, G. C., Anal. Chem. 38, 644-646 (1966).
    Porter, K., and Volman, D. H., Anal. Chem. 34, 748-749 (1962).
    Crum, W. M., Proceedings, National Analysis Instrumentation 
Symposium ISA, 1962.
    Schwink, A., Hochenberg, H., and Forderreuther, M., Brennstoff-
Chemie 72, No. 9, 295 (1961).
    Instruction Manual for Air Quality Chromatograph Model 6800, Beckman 
Instrument Co., Fullerton, CA.
    Instruction Manual, Bendix Corp., Ronceverte, WV.
    Instruction Manual, Byron Instrument Co., Raleigh, NC.
    MSA Instruction Manual for GC Process Analyzer for Total 
Hydrocarbon, Methane and Carbon Monoxide, Pittsburgh, PA.
    Monsanto Enviro-Chem System for Total Hydrocarbons, Methane and 
Carbon Monoxide Instruction Manual, Dayton, OH.
    Union Carbide Instruction Manual for Model 3020 Gas Chromatograph 
for CO-CH4-T/1, White Plains, NY.
    Instruction Manual for 350 F Analyzer, Tracor Inc., Austin, TX.

[[Page 701]]




[[Page 702]]





[[Page 703]]



                                 Addenda

    A. Suggested Performance Specifications for Atmospheric Analyzers 
for Hydrocarbons Corrected for Methane:


Range (minimum)...........................  0.3 mg./m.\3\ (0-5 p.p.m.)  
                                             THC.                       
                                            0-3 mg./m.\3\ (0-5 p.p.m.)  
                                             CH4.                       
Output (minimum)..........................  0-10 mv. full scale.        
Minimum detectable sensitivity............  0.1 p.p.m. THC.             
                                            0.1 p.p.m. CH4.             
Zero drift (maximum)......................  Not to exceed 1 percent/24  
                                             hours.                     
Span drift (maximum)......................  Not to exceed 1 percent/24  
                                             hours.                     
Precision (minimum).......................  plus-minus0.5 percent.      
Operational period (minimum)..............  3 days.                     
Operating temperature range (minimum).....  5-40 deg. C.                
Operating humidity range (minimum)........  10-100 percent.             
Linearity (maximum).......................  1 percent of full scale.    
                                                                        

    B. Suggested Definitions of Performance Specifications:

Range--The minimum and maximum measurement limits.
Output--Electrical signal which is proportional to the measurement; 
intended for connection to readout or data processing devices. Usually 
expressed as millivolts or milliamps full scale at a given impedence.
Full Scale--The maximum measuring limit for a given range.
Minimum Detectable Sensitivity--The smallest amount of input 
concentration that can be detected as the concentration approaches zero.
Accuracy--The degree of agreement between a measured value and the true 
value; usually expressed at plus-minus percent of full scale.
Lag Time--The time interval from a step change in input concentration at 
the instrument inlet to the first corresponding change in the instrument 
output.
Time to 90 Percent Response--The time interval from a step change in the 
input concentration at the instrument inlet to a reading of 90 percent 
of the ultimate recorded concentration.
Rise Time (90 percent)--The interval between initial response time and 
time to 90 percent response after a step decrease in the inlet 
concentration.
Zero Drift--The change in instrument output over a stated time period, 
usually 24 hours, of unadjusted continuous operation, when the input 
concentration is zero; usually expressed as percent full scale.
Span Drift--The change in instrument output over a stated time period, 
usually 24 hours, of unadjusted continuous operation, when the input 
concentration is a stated upscale value; usually expressed as percent 
full scale.
Precision--The degree of agreement between repeated measurements of the 
same concentration. It is expressed as the average deviation of the 
single results from the mean.
Operational Period--The period of time over which the instrument can be 
expected to operate unattended within specifications.
Noise--Spontaneous deviations from a mean output not caused by input 
concentration changes.
Interference--An undesired positive or negative output caused by a 
substance other than the one being measured.
Interference Equivalent--The portion of indicated input concentration 
due to the presence of an interferent.
Operating Temperature Range--The range of ambient temperatures over 
which the instrument will meet all performance specifications.
Operating Humidity Range--The range of ambient relative humidity over 
which the instrument will meet all performance specifications.
Linearity--The maximum deviation between an actual instrument reading 
and the reading predicted by a straight line drawn between upper and 
lower calibration points.

[[Page 704]]



[36 FR 22394, Nov. 25, 1971]

                                     

 Appendix F to Part 50--Measurement Principle and Calibration Procedure 
  for the Measurement of Nitrogen Dioxide in the Atmosphere (Gas Phase 
                           Chemiluminescence)

Principle and Applicability

    1. Atmospheric concentrations of nitrogen dioxide (NO2) are 
measured indirectly by photometrically measuring the light intensity, at 
wavelengths greater than 600 nanometers, resulting from the 
chemiluminescent reaction of nitric oxide (NO) with ozone (O3). 
(1,2,3) NO2 is first quantitatively reduced to NO(4,5,6) by means 
of a converter. NO, which commonly exists in ambient air together with 
NO2, passes through the converter unchanged causing a resultant 
total NOx concentration equal to NO+NO2. A sample of the input 
air is also measured without having passed through the converted. This 
latter NO measurement is subtracted from the former measurement 
(NO+NO2) to yield the final NO2 measurement. The NO and 
NO+NO2 measurements may be made concurrently with dual systems, or 
cyclically with the same system provided the cycle time does not exceed 
1 minute.
    2. Sampling considerations.
    2.1  Chemiluminescence NO/NOx/NO2 analyzers will respond 
to other nitrogen containing compounds, such as peroxyacetyl nitrate 
(PAN), which might be reduced to NO in the thermal converter. (7) 
Atmospheric concentrations of these potential interferences are 
generally low relative to NO2 and valid NO2 measurements may 
be obtained. In certain geographical areas, where the concentration of 
these potential interferences is known or suspected to be high relative 
to NO2, the use of an equivalent method for the measurement of 
NO2 is recommended.
    2.2  The use of integrating flasks on the sample inlet line of 
chemiluminescence NO/NOx/NO2 analyzers is optional and left to 
couraged. The sample residence time between the sampling point and the 
analyzer

[[Page 705]]

should be kept to a minimum to avoid erroneous NO2 measurements 
resulting from the reaction of ambient levels of NO and O3 in the 
sampling system.
    2.3  The use of particulate filters on the sample inlet line of 
chemiluminescence NO/NOx/NO2 analyzers is optional and left to 
the discretion of the user or the manufacturer.
Use of the filter should depend on the analyzer's susceptibility to 
interference, malfunction, or damage due to particulates. Users are 
cautioned that particulate matter concentrated on a filter may cause 
erroneous NO2 measurements and therefore filters should be changed 
frequently.
    3. An analyzer based on this principle will be considered a 
reference method only if it has been designated as a reference method in 
accordance with Part 53 of this chapter.

Calibration

    1. Alternative A--Gas phase titration (GPT) of an NO standard with 
O3.
    Major equipment required: Stable O3 generator. 
Chemiluminescence NO/NOx/NO2 analyzer with strip chart 
recorder(s). NO concentration standard.
    1.1  Principle. This calibration technique is based upon the rapid 
gas phase reaction between NO and O3 to produce stoichiometric 
quantities of NO2 in accordance with the following equation: (8)

         NO+O3NO2+O2                (1)

The quantitative nature of this reaction is such that when the NO 
concentration is known, the concentration of NO2 can be determined. 
Ozone is added to excess NO in a dynamic calibration system, and the NO 
channel of the chemiluminescence NO/NOx/NO2 analyzer is used 
as an indicator of changes in NO concentration. Upon the addition of 
O3, the decrease in NO concentration observed on the calibrated NO 
channel is equivalent to the concentration of NO2 produced. The 
amount of NO2 generated may be varied by adding variable amounts of 
O3 from a stable uncalibrated O3 generator. (9)
    1.2  Apparatus. Figure 1, a schematic of a typical GPT apparatus, 
shows the suggested configuration of the components listed below. All 
connections between components in the calibration system downstream from 
the O3 generator should be of glass, Teflon, or other 
non-reactive material.
    1.2.1  Air flow controllers. Devices capable of maintaining constant 
air flows within plus-minus2% of the required flowrate.
    1.2.2  NO flow controller. A device capable of maintaining constant 
NO flows within plus-minus2% of the required flowrate. Component 
parts in contact with the NO should be of a non-reactive material.
    1.2.3  Air flowmeters. Calibrated flowmeters capable of measuring 
and monitoring air flowrates with an accuracy of plus-minus2% of 
the measured flowrate.
    1.2.4  NO flowmeter. A calibrated flowmeter capable of measuring and 
monitoring NO flowrates with an accuracy of plus-minus2% of the 
measured flowrate. (Rotameters have been reported to operate unreliably 
when measuring low NO flows and are not recommended.)
    1.2.5  Pressure regulator for standard NO cylinder. This regulator 
must have a nonreactive diaphragm and internal parts and a suitable 
delivery pressure.
    1.2.6  Ozone generator. The generator must be capable of generating 
sufficient and stable levels of O3 for reaction with NO to generate 
NO2 concentrations in the range required. Ozone generators of the 
electric discharge type may produce NO and NO2 and are not 
recommended.
    1.2.7  Valve. A valve may be used as shown in Figure 1 to divert the 
NO flow when zero air is required at the manifold. The valve should be 
constructed of glass, Teflon, or other nonreactive material.
    1.2.8  Reaction chamber. A chamber, constructed of glass, 
Teflon, or other nonreactive material, for the quantitative 
reaction of O3 with excess NO. The chamber should be of sufficient 
volume (VRC) such that the residence time (tR) meets the 
requirements specified in 1.4. For practical reasons, tR should be 
less than 2 minutes.
    1.2.9  Mixing chamber. A chamber constructed of glass, 
Teflon, or other nonreactive material and designed to provide 
thorough mixing of reaction products and diluent air. The residence time 
is not critical when the dynamic parameter specification given in 1.4 is 
met.
    1.2.10  Output manifold. The output manifold should be constructed 
of glass, Teflon, or other non-reactive material and should be 
of sufficient diameter to insure an insignificant pressure drop at the 
analyzer connection. The system must have a vent designed to insure 
atmospheric pressure at the manifold and to prevent ambient air from 
entering the manifold.
    1.3  Reagents.
    1.3.1  NO concentration standard. Gas cylinder standard containing 
50 to 100 ppm NO in N2 with less than 1 ppm NO2. This standard 
must be traceable to a National Bureau of Standards (NBS) NO in N2 
Standard Reference Material (SRM 1683 or SRM 1684), an NBS NO2 
Standard Reference Material (SRM 1629), or an NBS/EPA-approved 
commercially available Certified Reference Material (CRM). CRM's are 
described in Reference 14, and a list of CRM sources is available from 
the address shown for Reference 14. A recommended protocol for 
certifying NO gas cylinders against either an NO SRM or CRM is given in 
section 2.0.7 of Reference 15. Reference 13 gives procedures for 
certifying an NO gas cylinder against an NBS NO2 SRM and for 
determining the amount of NO2 impurity in an NO cylinder.

[[Page 706]]

    1.3.2  Zero air. Air, free of contaminants which will cause a 
detectable response on the NO/NOx/NO2 analyzer or which might 
react with either NO, O3, or NO2 in the gas phase titration. A 
procedure for generating zero air is given in reference 13.
    1.4  Dynamic parameter specification.
    1.4.1  The O3 generator air flowrate (F0) and NO flowrate 
(FNO) (see Figure 1) must be adjusted such that the following 
relationship holds:

                 PR=[NO]RC x tR  2.75 ppm-minutes                    (2)
                                                                        

      

                                            FNO                         
     [NO]RC = [NO]STD  <3-ln (>           --------      <3-ln )>     (3)
                                           FO+FNO                       
                                                                        

      

                                                             VRC                                                
                                             tR =         --------         < 2 minutes                       (4)
                                                          FO + FNO                                              
                                                                                                                

where:
PR=dynamic parameter specification, determined empirically, to 
insure complete reaction of the available O3, ppm-minute
[NO]RC=NO concentration in the reaction chamber, ppm
R=residence time of the reactant gases in the reaction chamber, 
minute
[NO]STD=concentration of the undiluted NO standard, ppm
FNO=NO flowrate, scm3/min
FO=O3 generator air flowrate, scm3/min
VRC=volume of the reaction chamber, scm3

    1.4.2  The flow conditions to be used in the GPT system are 
determined by the following procedure:
    (a) Determine FT, the total flow required at the output 
manifold (FT=analyzer demand plus 10 to 50% excess).
    (b) Establish [NO]OUT as the highest NO concentration (ppm) 
which will be required at the output manifold. [NO]OUT should be 
approximately equivalent to 90% of the upper range limit (URL) of the 
NO2 concentration range to be covered.
    (c) Determine FNO!as


                                              [NO]OUT x FT              
                                    FNO =        ------              (5)
                                                [NO]STD                 
                                                                        


    (d) Select a convenient or available reaction chamber volume. 
Initially, a trial VRC may be selected to be in the range of 
approximately 200 to 500 scm3.
    (e) Compute FO as
    
    
    (f) Compute tR as


                                                 VRC                    
                                     tR =      --------              (7)
                                               FO + FNO                 
                                                                        


Verify that tR!< 2 minutes. If not, select a reaction chamber with 
a smaller VRC.
    (g) Compute the diluent air flowrate as


                           FD=FT'FO'FNO                              (8)
                                                                        


where:
FD=diluent air flowrate, scm3/min
    (h) If FO turns out to be impractical for the desired system, 
select a reaction chamber having a different VRC and recompute 
FO and FD.

    Note: A dynamic parameter lower than 2.75 ppm-minutes may be used if 
it can be determined empirically that quantitative reaction of O3 
with NO occurs. A procedure for making this determination as well as a 
more detailed discussion of the above requirements and other related 
considerations is given in reference 13.

    1.5  Procedure.
    1.5.1  Assemble a dynamic calibration system such as the one shown 
in Figure 1.
    1.5.2  Insure that all flowmeters are calibrated under the 
conditions of use against a reliable standard such as a soap-bubble 
meter or wet-test meter. All volumetric flowrates should be corrected to 
25 deg. C and 760 mm Hg. A discussion on the calibration of flowmeters 
is given in reference 13.
    1.5.3  Precautions must be taken to remove O2 and other 
contaminants from the NO pressure regulator and delivery system prior to 
the start of calibration to avoid any conversion of the standard NO to 
NO2. Failure to do so can cause significant errors in calibration. 
This problem may be minimized by (1) carefully evacuating the regulator, 
when possible, after the regulator has been connected to the cylinder 
and before opening the cylinder valve; (2) thoroughly flushing the 
regulator and delivery system with NO after opening the cylinder valve; 
(3) not removing the regulator from the cylinder between calibrations 
unless absolutely necessary. Further discussion of these procedures is 
given in reference 13.
    1.5.4  Select the operating range of the NO/NOx/NO2 
analyzer to be calibrated. In order to obtain maximum precision and 
accuracy for NO2 calibration, all three channels of the

[[Page 707]]

analyzer should be set to the same range. If operation of the NO and 
NOx channels on higher ranges is desired, subsequent recalibration 
of the NO and NOx channels on the higher ranges is recommended.

    Note: Some analyzer designs may require identical ranges for NO, 
NOx, and NO2 during operation of the analyzer.

    1.5.5  Connect the recorder output cable(s) of the NO/NOx/
NO2 analyzer to the input terminals of the strip chart recorder(s). 
All adjustments to the analyzer should be performed based on the 
appropriate strip chart readings. References to analyzer responses in 
the procedures given below refer to recorder responses.
    1.5.6  Determine the GPT flow conditions required to meet the 
dynamic parameter specification as indicated in 1.4.
    1.5.7  Adjust the diluent air and O3 generator air flows to 
obtain the flows determined in section 1.4.2. The total air flow must 
exceed the total demand of the analyzer(s) connected to the output 
manifold to insure that no ambient air is pulled into the manifold vent. 
Allow the analyzer to sample zero air until stable NO, NOx, and 
NO2 responses are obtained. After the responses have stabilized, 
adjust the analyzer zero control(s).

    Note: Some analyzers may have separate zero controls for NO, 
NOx, and NO2. Other analyzers may have separate zero controls 
only for NO and NOx, while still others may have only one zero 
control common to all three channels.

    Offsetting the analyzer zero adjustments to +5 percent of scale is 
recommended to facilitate observing negative zero drift. Record the 
stable zero air responses as ZNO, Znox, and Zno2.
    1.5.8  Preparation of NO and NOx calibration curves.
    1.5.8.1  Adjustment of NO span control. Adjust the NO flow from the 
standard NO cylinder to generate an NO concentration of approximately 80 
percent of the upper range limit (URL) of the NO range. This exact NO 
concentration is calculated from:
[GRAPHIC] [TIFF OMITTED] TR31AU93.044

where:
[NO]OUT=diluted NO concentration at the output manifold, ppm

Sample this NO concentration until the NO and NOx responses have 
stabilized. Adjust the NO span control to obtain a recorder response as 
indicated below:

recorder response (percent scale) =
[GRAPHIC] [TIFF OMITTED] TR31AU93.045

where:

URL=nominal upper range limit of the NO channel, ppm

    Note: Some analyzers may have separate span controls for NO, 
NOx, and NO2. Other analyzers may have separate span controls 
only for NO and NOx, while still others may have only one span 
control common to all three channels. When only one span control is 
available, the span adjustment is made on the NO channel of the 
analyzer.

If substantial adjustment of the NO span control is necessary, it may be 
necessary to recheck the zero and span adjustments by repeating steps 
1.5.7 and 1.5.8.1. Record the NO concentration and the analyzer's NO 
response.
    1.5.8.2  Adjustment of NOx span control. When adjusting the 
analyzer's NOx span control, the presence of any NO2 impurity 
in the standard NO cylinder must be taken into account. Procedures for 
determining the amount of NO2 impurity in the standard NO cylinder 
are given in reference 13. The exact NOx concentration is 
calculated from:
[GRAPHIC] [TIFF OMITTED] TR31AU93.046

where:
[NOx]OUT=diluted NOx concentration at the output 
manifold, ppm
[NO2]IMP=concentration of NO2 impurity in the standard NO 
cylinder, ppm

Adjust the NOX span control to obtain a recorder response as 
indicated below:

recorder response (% scale)=
[GRAPHIC] [TIFF OMITTED] TR31AU93.047

    Note: If the analyzer has only one span control, the span adjustment 
is made on the NO channel and no further adjustment is made here for 
NOx.

If substantial adjustment of the NOx span control is necessary, it 
may be necessary to recheck the zero and span adjustments by repeating 
steps 1.5.7 and 1.5.8.2. Record the NOx concentration and the 
analyzer's NOx response.
    1.5.8.3  Generate several additional concentrations (at least five 
evenly spaced points across the remaining scale are suggested to verify 
linearity) by decreasing FNO or increasing FD. For each 
concentration generated, calculate the exact NO and NOx

[[Page 708]]

concentrations using equations (9) and (11) respectively. Record the 
analyzer's NO and NOx responses for each concentration. Plot the 
analyzer responses versus the respective calculated NO and NOx 
concentrations and draw or calculate the NO and NOx calibration 
curves. For subsequent calibrations where linearity can be assumed, 
these curves may be checked with a two-point calibration consisting of a 
zero air point and NO and NOx concentrations of approximately 80% 
of the URL.
    1.5.9  Preparation of NO2 calibration curve.
    1.5.9.1  Assuming the NO2 zero has been properly adjusted while 
sampling zero air in step 1.5.7, adjust FO and FD as 
determined in section 1.4.2. Adjust FNO to generate an NO 
concentration near 90% of the URL of the NO range. Sample this NO 
concentration until the NO and NOx responses have stabilized. Using 
the NO calibration curve obtained in section 1.5.8, measure and record 
the NO concentration as [NO]orig. Using the NOx calibration 
curve obtained in section 1.5.8, measure and record the NOx 
concentration as [NOx]orig.
    1.5.9.2  Adjust the O3 generator to generate sufficient O3 
to produce a decrease in the NO concentration equivalent to 
approximately 80% of the URL of the NO2 range. The decrease must 
not exceed 90% of the NO concentration determined in step 1.5.9.1. After 
the analyzer responses have stabilized, record the resultant NO and 
NOx concentrations as [NO]rem and [NOx]rem.
    1.5.9.3  Calculate the resulting NO2 concentration from:

    [NO2]OUT=[NO]orig-[NO]rem


                                          FNO x [NO2]IMP                
                                   +        ----------              (13)
                                            FNO+FO+FD                   
                                                                        

where:

[NO2]OUT=diluted NO2 concentration at the output 
manifold, ppm
[NO]orig=original NO concentration, prior to addition of O3, 
ppm
[NO]rem=NO concentration remaining after addition of O3, ppm

Adjust the NO2 span control to obtain a recorder response as 
indicated below:

recorder response (% scale) =
[GRAPHIC] [TIFF OMITTED] TR31AU93.048

    Note: If the analyzer has only one or two span controls, the span 
adjustments are made on the NO channel or NO and NOx channels and 
no further adjustment is made here for NO2.

If substantial adjustment of the NO2 span control is necessary, it 
may be necessary to recheck the zero and span adjustments by repeating 
steps 1.5.7 and 1.5.9.3. Record the NO2 concentration and the 
corresponding analyzer NO2 and NOx responses.
    1.5.9.4  Maintaining the same FNO, FO, and FD as in 
section 1.5.9.1, adjust the ozone generator to obtain several other 
concentrations of NO2 over the NO2 range (at least five evenly 
spaced points across the remaining scale are suggested). Calculate each 
NO2 concentration using equation (13) and record the corresponding 
analyzer NO2 and NOx responses. Plot the analyzer's NO2 
responses versus the corresponding calculated NO2 concentrations 
and draw or calculate the NO2 calibration curve.
    1.5.10  Determination of converter efficiency.
    1.5.10.1  For each NO2 concentration generated during the 
preparation of the NO2 calibration curve (see section 1.5.9) 
calculate the concentration of NO2 converted from:

[NO2]CONV=[NO2]OUT'([NOx]orig'[NOx]r
                                   em)
                                                                    (15)
where:

[NO2]CONV=concentration of NO2 converted, ppm
[NOx]orig=original NOx concentration prior to addition of 
O3, ppm
[NOx]rem=NOx concentration remaining after addition of 
O3, ppm

    Note: Supplemental information on calibration and other procedures 
in this method are given in reference 13.

Plot [NO2]CONV (y-axis) versus [NO2]OUT (x-axis) and 
draw or calculate the converter efficiency curve. The slope of the curve 
times 100 is the average converter efficiency, EC. The average 
converter efficiency must be greater than 96%; if it is less than 96%, 
replace or service the converter.
    2. Alternative B--NO2 permeation device.
    Major equipment required:
    Stable O3 generator.
    Chemiluminescence NO/NOx/NO2 analyzer with strip chart 
recorder(s).
    NO concentration standard.
    NO2 concentration standard.
    2.1  Principle. Atmospheres containing accurately known 
concentrations of nitrogen dioxide are generated by means of a 
permeation device. (10) The permeation device emits NO2 at a known 
constant rate provided the temperature of the device is held constant 
(plus-minus0.1 deg. C) and the device has been accurately 
calibrated at the temperature of use. The NO2 emitted from the 
device is diluted with zero air to produce NO2 concentrations 
suitable for calibration of the NO2 channel of the NO/NOx/
NO2 analyzer. An NO concentration standard is used for calibration 
of the NO and NOx channels of the analyzer.

[[Page 709]]

    2.2  Apparatus. A typical system suitable for generating the 
required NO and NO2 concentrations is shown in Figure 2. All 
connections between components downstream from the permeation device 
should be of glass, Teflon, or other non-reactive material.
    2.2.1  Air flow controllers. Devices capable of maintaining constant 
air flows within plus-minus2% of the required flowrate.
    2.2.2  NO flow controller. A device capable of maintaining constant 
NO flows within plus-minus2% of the required flowrate. Component 
parts in contact with the NO must be of a non-reactive material.
    2.2.3  Air flowmeters. Calibrated flowmeters capable of measuring 
and monitoring air flowrates with an accuracy of plus-minus2% of 
the measured flowrate.
    2.2.4  NO flowmeter. A calibrated flowmeter capable of measuring and 
monitoring NO flowrates with an accuracy of plus-minus2% of the 
measured flowrate. (Rotameters have been reported to operate unreliably 
when measuring low NO flows and are not recommended.)
    2.2.5  Pressure regulator for standard NO cylinder. This regulator 
must have a non-reactive diaphragm and internal parts and a suitable 
delivery pressure.
    2.2.6  Drier. Scrubber to remove moisture from the permeation device 
air system. The use of the drier is optional with NO2 permeation 
devices not sensitive to moisture. (Refer to the supplier's instructions 
for use of the permeation device.)
    2.2.7  Constant temperature chamber. Chamber capable of housing the 
NO2 permeation device and maintaining its temperature to within 
plus-minus0.1 deg.C.
    2.2.8  Temperature measuring device. Device capable of measuring and 
monitoring the temperature of the NO2 permeation device with an 
accuracy of plus-minus0.05 deg.C.
    2.2.9  Valves. A valve may be used as shown in Figure 2 to divert 
the NO2 from the permeation device when zero air or NO is required 
at the manifold. A second valve may be used to divert the NO flow when 
zero air or NO2 is required at the manifold.
    The valves should be constructed of glass, Teflon, or 
other nonreactive material.
    2.2.10  Mixing chamber. A chamber constructed of glass, 
Teflon, or other nonreactive material and designed to provide 
thorough mixing of pollutant gas streams and diluent air.
    2.2.11  Output manifold. The output manifold should be constructed 
of glass, Teflon, or other non-reactive material and should be 
of sufficient diameter to insure an insignificant pressure drop at the 
analyzer connection. The system must have a vent designed to insure 
atmospheric pressure at the manifold and to prevent ambient air from 
entering the manifold.
    2.3  Reagents.
    2.3.1  Calibration standards. Calibration standards are required for 
both NO and NO2. The reference standard for the calibration may be 
either an NO or NO2 standard, and must be traceable to a National 
Bureau of Standards (NBS) NO in N2 Standard Reference Material (SRM 
1683 or SRM 1684), and NBS NO2 Standard Reference Material (SRM 
1629), or an NBS/EPA-approved commercially available Certified Reference 
Material (CRM). CRM's are described in Reference 14, and a list of CRM 
sources is available from the address shown for Reference 14. Reference 
15 gives recommended procedures for certifying an NO gas cylinder 
against an NO SRM or CRM and for certifying an NO2 permeation 
device against an NO2 SRM. Reference 13 contains procedures for 
certifying an NO gas cylinder against an NO2 SRM and for certifying 
an NO2 permeation device against an NO SRM or CRM. A procedure for 
determining the amount of NO2 impurity in an NO cylinder is also 
contained in Reference 13. The NO or NO2 standard selected as the 
reference standard must be used to certify the other standard to ensure 
consistency between the two standards.
    2.3.1.1  NO2 Concentration standard. A permeation device 
suitable for generating NO2 concentrations at the required flow-
rates over the required concentration range. If the permeation device is 
used as the reference standard, it must be traceable to an SRM or CRM as 
specified in 2.3.1. If an NO cylinder is used as the reference standard, 
the NO2 permeation device must be certified against the NO standard 
according to the procedure given in Reference 13. The use of the 
permeation device should be in strict accordance with the instructions 
supplied with the device. Additional information regarding the use of 
permeation devices is given by Scaringelli et al. (11) and Rook et al. 
(12).
    2.3.1.2  NO Concentration standard. Gas cylinder containing 50 to 
100 ppm NO in N2 with less than 1 ppm NO2. If this cylinder is 
used as the reference standard, the cylinder must be traceable to an SRM 
or CRM as specified in 2.3.1. If an NO2 permeation device is used 
as the reference standard, the NO cylinder must be certified against the 
NO2 standard according to the procedure given in Reference 13. The 
cylinder should be recertified on a regular basis as determined by the 
local quality control program.
    2.3.3  Zero air. Air, free of contaminants which might react with NO 
or NO2 or cause a detectable response on the NO/NOx/NO2 
analyzer. When using permeation devices that are sensitive to moisture, 
the zero air passing across the permeation device must be dry to avoid 
surface reactions on the device. (Refer to the supplier's instructions 
for use of the permeation device.) A procedure for generating zero air 
is given in reference 13.
    2.4  Procedure.
    2.4.1  Assemble the calibration apparatus such as the typical one 
shown in Figure 2.

[[Page 710]]

    2.4.2  Insure that all flowmeters are calibrated under the 
conditions of use against a reliable standard such as a soap bubble 
meter or wet-test meter. All volumetric flowrates should be corrected to 
25 deg. C and 760 mm Hg. A discussion on the calibration of flowmeters 
is given in reference 13.
    2.4.3  Install the permeation device in the constant temperature 
chamber. Provide a small fixed air flow (200-400 scm3/min) across 
the device. The permeation device should always have a continuous air 
flow across it to prevent large buildup of NO2 in the system and a 
consequent restabilization period. Record the flowrate as FP. Allow the 
device to stabilize at the calibration temperature for at least 24 
hours. The temperature must be adjusted and controlled to within 
plus-minus0.1 deg.C or less of the calibration temperature as 
monitored with the temperature measuring device.
    2.4.4  Precautions must be taken to remove O2 and other 
contaminants from the NO pressure regulator and delivery system prior to 
the start of calibration to avoid any conversion of the standard NO to 
NO2. Failure to do so can cause significant errors in calibration. 
This problem may be minimized by
    (1) Carefully evacuating the regulator, when possible, after the 
regulator has been connected to the cylinder and before opening the 
cylinder valve;
    (2) Thoroughly flushing the regulator and delivery system with NO 
after opening the cylinder valve;
    (3) Not removing the regulator from the cylinder between 
calibrations unless absolutely necessary. Further discussion of these 
procedures is given in reference 13.
    2.4.5  Select the operating range of the NO/NOxNO2 
analyzer to be calibrated. In order to obtain maximum precision and 
accuracy for NO2 calibration, all three channels of the analyzer 
should be set to the same range. If operation of the NO and NOx 
channels on higher ranges is desired, subsequent recalibration of the NO 
and NOx channels on the higher ranges is recommended.

    Note: Some analyzer designs may require identical ranges for NO, 
NOx, and NO2 during operation of the analyzer.

    2.4.6  Connect the recorder output cable(s) of the NO/NOx/
NO2 analyzer to the input terminals of the strip chart recorder(s). 
All adjustments to the analyzer should be performed based on the 
appropriate strip chart readings. References to analyzer responses in 
the procedures given below refer to recorder responses.
    2.4.7  Switch the valve to vent the flow from the permeation device 
and adjust the diluent air flowrate, FD, to provide zero air at the 
output manifold. The total air flow must exceed the total demand of the 
analyzer(s) connected to the output manifold to insure that no ambient 
air is pulled into the manifold vent. Allow the analyzer to sample zero 
air until stable NO, NOx, and NO2 responses are obtained. 
After the responses have stabilized, adjust the analyzer zero 
control(s).

    Note: Some analyzers may have separate zero controls for NO, 
NOx, and NO2. Other analyzers may have separate zero controls 
only for NO and NOx, while still others may have only one zero 
common control to all three channels.

Offsetting the analyzer zero adjustments to +5% of scale is recommended 
to facilitate observing negative zero drift. Record the stable zero air 
responses as ZNO, ZNOx, and ZNO2.
    2.4.8  Preparation of NO and NOx calibration curves.
    2.4.8.1  Adjustment of NO span control. Adjust the NO flow from the 
standard NO cylinder to generate an NO concentration of approximately 
80% of the upper range limit (URL) of the NO range. The exact NO 
concentration is calculated from:
[GRAPHIC] [TIFF OMITTED] TR31AU93.049

where:

[NO]OUT=diluted NO concentration at the output manifold, ppm
FNO=NO flowrate, scm3/min
[NO]STD=concentration of the undiluted NO standard, ppm
FD=diluent air flowrate, scm3/min

Sample this NO concentration until the NO and NOx responses have 
stabilized. Adjust the NO span control to obtain a recorder response as 
indicated below:

recorder response (% scale) =
[GRAPHIC] [TIFF OMITTED] TR31AU93.050

      
    [GRAPHIC] [TIFF OMITTED] TR31AU93.051
    
where:

URL=nominal upper range limit of the NO channel, ppm

    Note: Some analyzers may have separate span controls for NO, 
NOx, and NO2. Other analyzers may have separate span controls 
only for NO and NOx, while still others may have only one span 
control common to all three channels. When only one span control

[[Page 711]]

is available, the span adjustment is made on the NO channel of the 
analyzer.

If substantial adjustment of the NO span control is necessary, it may be 
necessary to recheck the zero and span adjustments by repeating steps 
2.4.7 and 2.4.8.1. Record the NO concentration and the analyzer's NO 
response.
    2.4.8.2  Adjustment of NOx span control. When adjusting the 
analyzer's NOx span control, the presence of any NO2 impurity 
in the standard NO cylinder must be taken into account. Procedures for 
determining the amount of NO2 impurity in the standard NO cylinder 
are given in reference 13. The exact NOx concentration is 
calculated from:

[GRAPHIC] [TIFF OMITTED] TR31AU93.052


where:

[NOx]OUT=diluted NOx cencentration at the output 
manifold, ppm
[NO2]IMP=concentration of NO2 impurity in the standard NO 
cylinder, ppm

Adjust the NOx span control to obtain a convenient recorder 
response as indicated below:

recorder response (% scale)
[GRAPHIC] [TIFF OMITTED] TR31AU93.053

    Note: If the analyzer has only one span control, the span adjustment 
is made on the NO channel and no further adjustment is made here for 
NOx.

If substantial adjustment of the NOx span control is necessary, it 
may be necessary to recheck the zero and span adjustments by repeating 
steps 2.4.7 and 2.4.8.2. Record the NOx concentration and the 
analyzer's NOx response.
    2.4.8.3  Generate several additional concentrations (at least five 
evenly spaced points across the remaining scale are suggested to verify 
linearity) by decreasing FNO or increasing FD. For each 
concentration generated, calculate the exact NO and NOx 
concentrations using equations (16) and (18) respectively. Record the 
analyzer's NO and NOx responses for each concentration. Plot the 
analyzer responses versus the respective calculated NO and NOx 
concentrations and draw or calculate the NO and NOx calibration 
curves. For subsequent calibrations where linearity can be assumed, 
these curves may be checked with a two-point calibration consisting of a 
zero point and NO and NOx concentrations of approximately 80 
percent of the URL.
    2.4.9  Preparation of NO2 calibration curve.
    2.4.9.1  Remove the NO flow. Assuming the NO2 zero has been 
properly adjusted while sampling zero air in step 2.4.7, switch the 
valve to provide NO2 at the output manifold.
    2.4.9.2  Adjust FD to generate an NO2 concentration of 
approximately 80 percent of the URL of the NO2 range. The total air 
flow must exceed the demand of the analyzer(s) under calibration. The 
actual concentration of NO2 is calculated from:
[GRAPHIC] [TIFF OMITTED] TR31AU93.054

where:
[NO2]OUT=diluted NO2 concentration at the output 
manifold, ppm
R=permeation rate, g/min
K=0.532l NO2/g NO2 (at 25 deg.C and 760 mm 
Hg)
Fp=air flowrate across permeation device, scm3/min
FD=diluent air flowrate, scm3/min

Sample this NO2 concentration until the NOx and NO2 
responses have stabilized. Adjust the NO2 span control to obtain a 
recorder response as indicated below:

recorder response (% scale)
[GRAPHIC] [TIFF OMITTED] TR31AU93.055

    Note: If the analyzer has only one or two span controls, the span 
adjustments are made on the NO channel or NO and NOx channels and 
no further adjustment is made here for NO2.

If substantial adjustment of the NO2 span control is necessary it 
may be necessary to recheck the zero and span adjustments by repeating 
steps 2.4.7 and 2.4.9.2. Record the NO2 concentration and the 
analyzer's NO2 response. Using the NOx calibration curve 
obtained in step 2.4.8, measure and record the NOx concentration as 
[NOx]M.
    2.4.9.3  Adjust FD to obtain several other concentrations of 
NO2 over the NO2 range (at least five evenly spaced points 
across the remaining scale are suggested). Calculate each NO2 
concentration using equation (20) and record the corresponding analyzer 
NO2 and NOx responses. Plot the analyzer's NO2 responses 
versus the corresponding calculated NO2 concentrations and draw or 
calculate the NO2 calibration curve.
    2.4.10  Determination of converter efficiency.
    2.4.10.1  Plot [NOx]M (y-axis) versus [NO2]OUT 
(x-axis) and draw or calculate the converter efficiency curve. The slope 
of the curve times 100 is the average converter efficiency, EC. The 
average converter efficiency must be greater than 96 percent; if it is 
less than 96 percent, replace or service the converter.


[[Page 712]]


    Note: Supplemental information on calibration and other procedures 
in this method are given in reference 13.

    3.  Frequency of calibration. The frequency of calibration, as well 
as the number of points necessary to establish the calibration curve and 
the frequency of other performance checks, will vary from one analyzer 
to another. The user's quality control program should provide guidelines 
for initial establishment of these variables and for subsequent 
alteration as operational experience is accumulated. Manufacturers of 
analyzers should include in their instruction/operation manuals 
information and guidance as to these variables and on other matters of 
operation, calibration, and quality control.

                               References

    1. A. Fontijn, A. J. Sabadell, and R. J. Ronco, ``Homogeneous 
Chemiluminescent Measurement of Nitric Oxide with Ozone,'' Anal. Chem., 
42, 575 (1970).
    2. D. H. Stedman, E. E. Daby, F. Stuhl, and H. Niki, ``Analysis of 
Ozone and Nitric Oxide by a Chemiluminiscent Method in Laboratory and 
Atmospheric Studies of Photochemical Smog,'' J. Air Poll. Control 
Assoc., 22, 260 (1972).
    3. B. E. Martin, J. A. Hodgeson, and R. K. Stevens, ``Detection of 
Nitric Oxide Chemiluminescence at Atmospheric Pressure,'' Presented at 
164th National ACS Meeting, New York City, August 1972.
    4. J. A. Hodgeson, K. A. Rehme, B. E. Martin, and R. K. Stevens, 
``Measurements for Atmospheric Oxides of Nitrogen and Ammonia by 
Chemiluminescence,'' Presented at 1972 APCA Meeting, Miami, FL, June 
1972.
    5. R. K. Stevens and J. A. Hodgeson, ``Applications of 
Chemiluminescence Reactions to the Measurement of Air Pollutants,'' 
Anal. Chem., 45, 443A (1973).
    6. L. P. Breitenbach and M. Shelef, ``Development of a Method for 
the Analysis of NO2 and NH3 by NO-Measuring Instruments,'' J. 
Air Poll. Control Assoc., 23, 128 (1973).
    7. A. M. Winer, J. W. Peters, J. P. Smith, and J. N. Pitts, Jr., 
``Response of Commercial Chemiluminescent NO-NO2 Analyzers to Other 
Nitrogen-Containing Compounds,'' Environ. Sci. Technol., 8, 1118 (1974).
    8. K. A. Rehme, B. E. Martin, and J. A. Hodgeson, Tentative Method 
for the Calibration of Nitric Oxide, Nitrogen Dioxide, and Ozone 
Analyzers by Gas Phase Titration,'' EPA-R2-73-246, March 1974.
    9. J. A. Hodgeson, R. K. Stevens, and B. E. Martin, ``A Stable Ozone 
Source Applicable as a Secondary Standard for Calibration of Atmospheric 
Monitors,'' ISA Transactions, 11, 161 (1972).
    10. A. E. O'Keeffe and G. C. Ortman, ``Primary Standards for Trace 
Gas Analysis,'' Anal. Chem., 38, 760 (1966).
    11. F. P. Scaringelli, A. E. O'Keeffe, E. Rosenberg, and J. P. Bell, 
``Preparation of Known Concentrations of Gases and Vapors with 
Permeation Devices Calibrated Gravimetrically,'' Anal. Chem., 42, 871 
(1970).
    12. H. L. Rook, E. E. Hughes, R. S. Fuerst, and J. H. Margeson, 
``Operation Characteristics of NO2 Permeation Devices,'' Presented 
at 167th National ACS Meeting, Los Angeles, CA, April 1974.
    13. E. C. Ellis, ``Technical Assistance Document for the 
Chemiluminescence Measurement of Nitrogen Dioxide,'' EPA-E600/4-75-003 
(Available in draft form from the United States Environmental Protection 
Agency, Department E (MD-76), Environmental Monitoring and Support 
Laboratory, Research Triangle Park, NC 27711).
    14. A Procedure for Establishing Traceability of Gas Mixtures to 
Certain National Bureau of Standards Standard Reference Materials. EPA-
600/7-81-010, Joint publication by NBS and EPA. Available from the U.S. 
Environmental Protection Agency, Environmental Monitoring Systems 
Laboratory (MD-77), Research Triangle Park, NC 27711, May 1981.
    15. Quality Assurance Handbook for Air Pollution Measurement 
Systems, Volume II, Ambient Air Specific Methods. The U.S. Environmental 
Protection Agency, Environmental Monitoring Systems Laboratory, Research 
Triangle Park, NC 27711. Publication No. EAP-600/4-77-027a.

[[Page 713]]




[[Page 714]]




[41 FR 52688, Dec. 1, 1976, as amended at 48 FR 2529, Jan 20, 1983]

                                     

Appendix G to Part 50--Reference Method for the Determination of Lead in 
         Suspended Particulate Matter Collected From Ambient Air

    1. Principle and applicability.
    1.1  Ambient air suspended particulate matter is collected on a 
glass-fiber filter for 24 hours using a high volume air sampler. The 
analysis of the 24-hour samples may be performed for either individual 
samples or composites of the samples collected over a calendar month or 
quarter, provided that the compositing procedure has been approved in 
accordance with section 2.8 of appendix C to part 58 of this chapter--
Modifications of methods by users. (Guidance or assistance in requesting 
approval under Section 2.8 can be obtained from the address given in 
section 2.7 of appendix C to Part 58 of this chapter.)
    1.2  Lead in the particulate matter is solubilized by extraction 
with nitric acid (HNO3), facilitated by heat or by a mixture of 
HNO3 and hydrochloric acid (HCl) facilitated by ultrasonication.
    1.3  The lead content of the sample is analyzed by atomic absorption 
spectrometry using an air-acetylene flame, the 283.3 or 217.0 nm lead 
absorption line, and the optimum instrumental conditions recommended by 
the manufacturer.
    1.4  The ultrasonication extraction with HNO3/HCl will extract 
metals other than lead from ambient particulate matter.
    2. Range, sensitivity, and lower detectable limit. The values given 
below are typical of the methods capabilities. Absolute values will vary 
for individual situations depending on the type of instrument used, the 
lead line, and operating conditions.
    2.1  Range. The typical range of the method is 0.07 to 7.5 
g Pb/m3 assuming an upper linear range of analysis of 15 
g/ml and an air volume of 2,400 m3.
    2.2  Sensitivity. Typical sensitivities for a 1 percent change in 
absorption (0.0044 absorbance units) are 0.2 and 0.5 g Pb/ml 
for the 217.0 and 283.3 nm lines, respectively.
    2.3  Lower detectable limit (LDL). A typical LDL is 0.07 g 
Pb/m3. The above value was calculated by doubling the between-
laboratory standard deviation obtained for the lowest measurable lead 
concentration in a collaborative test of the method.(15) An air volume 
of 2,400 m3 was assumed.
    3. Interferences. Two types of interferences are possible: chemical 
and light scattering.
    3.1  Chemical. Reports on the absence (1, 2, 3, 4, 5) of chemical 
interferences far outweigh those reporting their presence, (6) 
therefore, no correction for chemical interferences is given here. If 
the analyst suspects that the sample matrix is causing a chemical 
interference, the interference can be verified and corrected for by 
carrying out the analysis

[[Page 715]]

with and without the method of standard additions.(7)
    3.2  Light scattering. Nonatomic absorption or light scattering, 
produced by high concentrations of dissolved solids in the sample, can 
produce a significant interference, especially at low lead 
concentrations. (2) The interference is greater at the 217.0 nm line 
than at the 283.3 nm line. No interference was observed using the 283.3 
nm line with a similar method.(1)
    Light scattering interferences can, however, be corrected for 
instrumentally. Since the dissolved solids can vary depending on the 
origin of the sample, the correction may be necessary, especially when 
using the 217.0 nm line. Dual beam instruments with a continuum source 
give the most accurate correction. A less accurate correction can be 
obtained by using a nonabsorbing lead line that is near the lead 
analytical line. Information on use of these correction techniques can 
be obtained from instrument manufacturers' manuals.
    If instrumental correction is not feasible, the interference can be 
eliminated by use of the ammonium pyrrolidinecarbodithioate-
methylisobutyl ketone, chelation-solvent extraction technique of sample 
preparation.(8)
    4. Precision and bias.
    4.1  The high-volume sampling procedure used to collect ambient air 
particulate matter has a between-laboratory relative standard deviation 
of 3.7 percent over the range 80 to 125 g/m3.(9) The 
combined extraction-analysis procedure has an average within-laboratory 
relative standard deviation of 5 to 6 percent over the range 1.5 to 15 
g Pb/ml, and an average between laboratory relative standard 
deviation of 7 to 9 percent over the same range. These values include 
use of either extraction procedure.
    4.2  Single laboratory experiments and collaborative testing 
indicate that there is no significant difference in lead recovery 
between the hot and ultrasonic extraction procedures.(15)
    5. Apparatus.
    5.1  Sampling.
    5.1.1 High-Volume Sampler. Use and calibrate the sampler as 
described in appendix B to this part.
    5.2  Analysis.
    5.2.1  Atomic absorption spectrophotometer. Equipped with lead 
hollow cathode or electrodeless discharge lamp.
    5.2.1.1  Acetylene. The grade recommended by the instrument 
manufacturer should be used. Change cylinder when pressure drops below 
50-100 psig.
    5.2.1.2  Air. Filtered to remove particulate, oil, and water.
    5.2.2  Glassware. Class A borosilicate glassware should be used 
throughout the analysis.
    5.2.2.1  Beakers. 30 and 150 ml. graduated, Pyrex.
    5.2.2.2  Volumetric flasks. 100-ml.
    5.2.2.3  Pipettes. To deliver 50, 30, 15, 8, 4, 2, 1 ml.
    5.2.2.4  Cleaning. All glassware should be scrupulously cleaned. The 
following procedure is suggested. Wash with laboratory detergent, rinse, 
soak for 4 hours in 20 percent (w/w) HNO3, rinse 3 times with 
distilled-deionized water, and dry in a dust free manner.
    5.2.3  Hot plate.
    5.2.4.  Ultrasonication water bath, unheated. Commercially available 
laboratory ultrasonic cleaning baths of 450 watts or higher ``cleaning 
power,'' i.e., actual ultrasonic power output to the bath have been 
found satisfactory.
    5.2.5  Template. To aid in sectioning the glass-fiber filter. See 
figure 1 for dimensions.
    5.2.6  Pizza cutter. Thin wheel. Thickness 1mm.
    5.2.7  Watch glass.
    5.2.8  Polyethylene bottles. For storage of samples. Linear 
polyethylene gives better storage stability than other polyethylenes and 
is preferred.
    5.2.9  Parafilm ``M''.\1\ American Can Co., Marathon Products, 
Neenah, Wis., or equivalent.
---------------------------------------------------------------------------

    \1\ Mention of commercial products does not imply endorsement by the 
U.S. Environmental Protection Agency.
---------------------------------------------------------------------------

    6. Reagents.
    6.1  Sampling.
    6.1.1  Glass fiber filters. The specifications given below are 
intended to aid the user in obtaining high quality filters with 
reproducible properties. These specifications have been met by EPA 
contractors.
    6.1.1.1  Lead content. The absolute lead content of filters is not 
critical, but low values are, of course, desirable. EPA typically 
obtains filters with a lead content of 75 g/filter.
    It is important that the variation in lead content from filter to 
filter, within a given batch, be small.
    6.1.1.2  Testing.
    6.1.1.2.1  For large batches of filters (>500 filters) select at 
random 20 to 30 filters from a given batch. For small batches (>500 
filters) a lesser number of filters may be taken. Cut one \3/4\''x8'' 
strip from each filter anywhere in the filter. Analyze all strips, 
separately, according to the directions in sections 7 and 8.
    6.1.1.2.2  Calculate the total lead in each filter as

                                                                        
                                                 100ml         12strips 
           Fb=g Pb/ml   x                        x             
                                                 strip          filter  
                                                                        
                                                                        
                                                                        

where:

    Fb=Amount of lead per 72 square inches of filter, g.


[[Page 716]]


    6.1.1.2.3  Calculate the mean, Fb, of the values and the 
relative standard deviation (standard deviation/mean  x  100). If the 
relative standard deviation is high enough so that, in the analysts 
opinion, subtraction of Fb, (section 10.3) may result in a 
significant error in the g Pb/m3, the batch should be 
rejected.
    6.1.1.2.4  For acceptable batches, use the value of Fb to 
correct all lead analyses (section 10.3) of particulate matter collected 
using that batch of filters. If the analyses are below the LDL (section 
2.3) no correction is necessary.
    6.2  Analysis.
    6.2.1  Concentrated (15.6 M) HNO3. ACS reagent grade HNO3
!and commercially available redistilled HNO3!has found to have 
sufficiently low lead concentrations.
    6.2.2  Concentrated (11.7 M) HCl. ACS reagent grade.
    6.2.3  Distilled-deionized water. (D.I. water).
    6.2.4  3 M HNO3. This solution is used in the hot extraction 
procedure. To prepare, add 192 ml of concentrated HNO3 to D.I. 
water in a 1 l volumetric flask. Shake well, cool, and dilute to volume 
with D.I. water. Caution: Nitric acid fumes are toxic. Prepare in a well 
ventilated fume hood.
    6.2.5  0.45 M HNO3.!This solution is used as the matrix for 
calibration standards when using the hot extraction procedure. To 
prepare, add 29 ml of concentrated HNO3!to D.I. water in a 1 l 
volumetric flask. Shake well, cool, and dilute to volume with D.I. 
water.
    6.2.6  2.6 M HNO3+0 to 0.9 M HCl. This solution is used in the 
ultrasonic extraction procedure. The concentration of HCl can be varied 
from 0 to 0.9 M. Directions are given for preparation of a 2.6 M 
HNO3+0.9 M HCl solution. Place 167 ml of concentrated HNO3
!into a 1 l volumetric flask and add 77 ml of concentrated HCl. Stir 4 
to 6 hours, dilute to nearly 1 l with D.I. water, cool to room 
temperature, and dilute to 1 l.
    6.2.7  0.40 M HNO3!+ X M HCl. This solution is used as the 
matrix for calibration standards when using the ultrasonic extraction 
procedure. To prepare, add 26 ml of concentrated HNO3,!plus the ml 
of HCl required, to a 1 l volumetric flask. Dilute to nearly 1 l with 
D.I. water, cool to room temperature, and dilute to 1 l. The amount of 
HCl required can be determined from the following equation:

                                                  77ml x 0.15 x         
                                        y  =     ----------------       
                                                       0.9M             
                                                                        

where:

    y = ml of concentrated HCl required.
    x = molarity of HCl in 6.2.6.
    0.15 = dilution factor in 7.2.2.

    6.2.8  Lead nitrate, Pb(NO3)2. ACS reagent grade, purity 
99.0 percent. Heat for 4 hours at 120 deg. C and cool in a desiccator.
    6.3  Calibration standards.
    6.3.1  Master standard, 1000 g Pb/ml in HNO3. Dissolve 
1.598 g of Pb(NO3)2!in 0.45 M HNO3!contained in a 1 l 
volumetric flask and dilute to volume with 0.45 M HNO3.
    6.3.2  Master standard, 1000 g Pb/ml in HNO3/HCl. 
Prepare as in section 6.3.1 except use the HNO3/HCl solution in 
section 6.2.7.
    Store standards in a polyethylene bottle. Commercially available 
certified lead standard solutions may also be used.
    7. Procedure.
    7.1  Sampling. Collect samples for 24 hours using the procedure 
described in reference 10 with glass-fiber filters meeting the 
specifications in section 6.1.1. Transport collected samples to the 
laboratory taking care to minimize contamination and loss of sample. 
(16).
    7.2  Sample preparation.
    7.2.1  Hot extraction procedure.
    7.2.1.1  Cut a \3/4\'' x 8'' strip from the exposed filter using a 
template and a pizza cutter as described in Figures 1 and 2. Other 
cutting procedures may be used.
    Lead in ambient particulate matter collected on glass fiber filters 
has been shown to be uniformly distributed across the filter.1, 3, 
11 Another study 12 has shown that when sampling near a roadway, 
strip position contributes significantly to the overall variability 
associated with lead analyses. Therefore, when sampling near a roadway, 
additional strips should be analyzed to minimize this variability.
    7.2.1.2  Fold the strip in half twice and place in a 150-ml beaker. 
Add 15 ml of 3 M HNO3!to cover the sample. The acid should 
completely cover the sample. Cover the beaker with a watch glass.
    7.2.1.3  Place beaker on the hot-plate, contained in a fume hood, 
and boil gently for 30 min. Do not let the sample evaporate to dryness. 
Caution: Nitric acid fumes are toxic.
    7.2.1.4  Remove beaker from hot plate and cool to near room 
temperature.
    7.2.1.5  Quantitatively transfer the sample as follows:
    7.2.1.5.1  Rinse watch glass and sides of beaker with D.I. water.
    7.2.1.5.2  Decant extract and rinsings into a 100-ml volumetric 
flask.
    7.2.1.5.3  Add D.I. water to 40 ml mark on beaker, cover with watch 
glass, and set aside for a minimum of 30 minutes. This is a critical 
step and cannot be omitted since it allows the HNO3 trapped in the 
filter to diffuse into the rinse water.
    7.2.1.5.4  Decant the water from the filter into the volumetric 
flask.
    7.2.1.5.5  Rinse filter and beaker twice with D.I. water and add 
rinsings to volumetric flask until total volume is 80 to 85 ml.
    7.2.1.5.6  Stopper flask and shake vigorously. Set aside for 
approximately 5 minutes or until foam has dissipated.

[[Page 717]]

    7.2.1.5.7  Bring solution to volume with D.I. water. Mix thoroughly.
    7.2.1.5.8  Allow solution to settle for one hour before proceeding 
with analysis.
    7.2.1.5.9  If sample is to be stored for subsequent analysis, 
transfer to a linear polyethylene bottle.
    7.2.2  Ultrasonic extraction procedure.
    7.2.2.1  Cut a \3/4\'' x 8'' strip from the exposed filter as 
described in section 7.2.1.1.
    7.2.2.2  Fold the strip in half twice and place in a 30 ml beaker. 
Add 15 ml of the HNO3/HCl solution in section 6.2.6. The acid 
should completely cover the sample. Cover the beaker with parafilm.
    The parafilm should be placed over the beaker such that none of the 
parafilm is in contact with water in the ultrasonic bath. Otherwise, 
rinsing of the parafilm (section 7.2.2.4.1) may contaminate the sample.
    7.2.2.3  Place the beaker in the ultrasonication bath and operate 
for 30 minutes.
    7.2.2.4  Quantitatively transfer the sample as follows:
    7.2.2.4.1  Rinse parafilm and sides of beaker with D.I. water.
    7.2.2.4.2  Decant extract and rinsings into a 100 ml volumetric 
flask.
    7.2.2.4.3  Add 20 ml D.I. water to cover the filter strip, cover 
with parafilm, and set aside for a minimum of 30 minutes. This is a 
critical step and cannot be omitted. The sample is then processed as in 
sections 7.2.1.5.4 through 7.2.1.5.9.

    Note: Samples prepared by the hot extraction procedure are now in 
0.45 M HNO3. Samples prepared by the ultrasonication procedure are 
in 0.40 M HNO3 + X M HCl.
    8. Analysis.
    8.1  Set the wavelength of the monochromator at 283.3 or 217.0 nm. 
Set or align other instrumental operating conditions as recommended by 
the manufacturer.
    8.2  The sample can be analyzed directly from the volumetric flask, 
or an appropriate amount of sample decanted into a sample analysis tube. 
In either case, care should be taken not to disturb the settled solids.
    8.3  Aspirate samples, calibration standards and blanks (section 
9.2) into the flame and record the equilibrium absorbance.
    8.4  Determine the lead concentration in g Pb/ml, from the 
calibration curve, section 9.3.
    8.5  Samples that exceed the linear calibration range should be 
diluted with acid of the same concentration as the calibration standards 
and reanalyzed.
    9. Calibration.
    9.1  Working standard, 20 g Pb/ml. Prepared by diluting 2.0 
ml of the master standard (section 6.3.1 if the hot acid extraction was 
used or section 6.3.2 if the ultrasonic extraction procedure was used) 
to 100 ml with acid of the same concentration as used in preparing the 
master standard.
    9.2  Calibration standards. Prepare daily by diluting the working 
standard, with the same acid matrix, as indicated below. Other lead 
concentrations may be used.

------------------------------------------------------------------------
                                                           Concentration
 Volume of 20 g/ml working standard,     Final    g Pb/
                      ml                       volume, ml        ml     
------------------------------------------------------------------------
0............................................         100             0 
1.0..........................................         200           0.1 
2.0..........................................         200           0.2 
2.0..........................................         100           0.4 
4.0..........................................         100           0.8 
8.0..........................................         100           1.6 
15.0.........................................         100           3.0 
30.0.........................................         100           6.0 
50.0.........................................         100          10.0 
100.0........................................         100          20.0 
------------------------------------------------------------------------

    9.3  Preparation of calibration curve. Since the working range of 
analysis will vary depending on which lead line is used and the type of 
instrument, no one set of instructions for preparation of a calibration 
curve can be given. Select standards (plus the reagent blank), in the 
same acid concentration as the samples, to cover the linear absorption 
range indicated by the instrument manufacturer. Measure the absorbance 
of the blank and standards as in section 8.0. Repeat until good 
agreement is obtained between replicates. Plot absorbance (y-axis) 
versus concentration in g Pb/ml (x-axis). Draw (or compute) a 
straight line through the linear portion of the curve. Do not force the 
calibration curve through zero. Other calibration procedures may be 
used.
    To determine stability of the calibration curve, remeasure--
alternately--one of the following calibration standards for every 10th 
sample analyzed: Concentration ls-thn-eq 1g Pb/ml; 
concentration ls-thn-eq 10 g Pb/ml. If either standard 
deviates by more than 5 percent from the value predicted by the 
calibration curve, recalibrate and repeat the previous 10 analyses.
    10. Calculation.
    10.1  Measured air volume. Calculate the measured air volume at 
Standard Temperature and Pressure as described in Reference 10.
    10.2  Lead concentration. Calculate lead concentration in the air 
sample.

[[Page 718]]



where:

C=Concentration, g Pb/sm3.
g Pb/ml=Lead concentration determined from section 8.
100 ml/strip=Total sample volume.
12 strips=Total useable filter area, 8''  x  9''. Exposed area of one 
          strip, \3/4\''  x  7''.
Filter=Total area of one strip, \3/4\''  x  8''.
Fb=Lead concentration of blank filter, g, from section 
          6.1.1.2.3.
VSTP=Air volume from section 10.2.

    11. Quality control.
    \3/4\''  x  8'' glass fiber filter strips containing 80 to 2000 
g Pb/strip (as lead salts) and blank strips with zero Pb 
content should be used to determine if the method--as being used--has 
any bias. Quality control charts should be established to monitor 
differences between measured and true values. The frequency of such 
checks will depend on the local quality control program.
    To minimize the possibility of generating unreliable data, the user 
should follow practices established for assuring the quality of air 
pollution data, (13) and take part in EPA's semiannual audit program for 
lead analyses.
    12. Trouble shooting.
    1. During extraction of lead by the hot extraction procedure, it is 
important to keep the sample covered so that corrosion products--formed 
on fume hood surfaces which may contain lead--are not deposited in the 
extract.
    2. The sample acid concentration should minimize corrosion of the 
nebulizer. However, different nebulizers may require lower acid 
concentrations. Lower concentrations can be used provided samples and 
standards have the same acid concentration.
    3. Ashing of particulate samples has been found, by EPA and 
contractor laboratories, to be unnecessary in lead analyses by atomic 
absorption. Therefore, this step was omitted from the method.
    4. Filtration of extracted samples, to remove particulate matter, 
was specifically excluded from sample preparation, because some analysts 
have observed losses of lead due to filtration.
    5. If suspended solids should clog the nebulizer during analysis of 
samples, centrifuge the sample to remove the solids.
    13. Authority.
    (Secs. 109 and 301(a), Clean Air Act, as amended (42 U.S.C. 7409, 
7601(a)))
    14. References.
    1. Scott, D. R. et al. ``Atomic Absorption and Optical Emission 
Analysis of NASN Atmospheric Particulate Samples for Lead.'' Envir. Sci. 
and Tech., 10, 877-880 (1976).
    2. Skogerboe, R. K. et al. ``Monitoring for Lead in the 
Environment.'' pp. 57-66, Department of Chemistry, Colorado State 
University, Fort Collins, CO 80523. Submitted to National Science 
Foundation for publications, 1976.
    3. Zdrojewski, A. et al. ``The Accurate Measurement of Lead in 
Airborne Particulates.'' Inter. J. Environ. Anal. Chem., 2, 63-77 
(1972).
    4. Slavin, W., ``Atomic Absorption Spectroscopy.'' Published by 
Interscience Company, New York, NY (1968).
    5. Kirkbright, G. F., and Sargent, M., ``Atomic Absorption and 
Fluorescence Spectroscopy.'' Published by Academic Press, New York, NY 
1974.
    6. Burnham, C. D. et al., ``Determination of Lead in Airborne 
Particulates in Chicago and Cook County, IL, by Atomic Absorption 
Spectroscopy.'' Envir. Sci. and Tech., 3, 472-475 (1969).
    7. ``Proposed Recommended Practices for Atomic Absorption 
Spectrometry.'' ASTM Book of Standards, part 30, pp. 1596-1608 (July 
1973).
    8. Koirttyohann, S. R. and Wen, J. W., ``Critical Study of the APCD-
MIBK Extraction System for Atomic Absorption.'' Anal. Chem., 45,  1986-
1989 (1973).
    9. Collaborative Study of Reference Method for the Determination of 
Suspended Particulates in the Atmosphere (High Volume Method). 
Obtainable from National Technical Information Service, Department of 
Commerce, Port Royal Road, Springfield, VA 22151, as PB-205-891.
    10.  [Reserved]
    11. Dubois, L., et al., ``The Metal Content of Urban Air.'' JAPCA, 
16, 77-78 (1966).
    12. EPA Report No. 600/4-77-034, June 1977, ``Los Angeles Catalyst 
Study Symposium.'' Page 223.
    13. Quality Assurance Handbook for Air Pollution Measurement System. 
Volume 1--Principles. EPA-600/9-76-005, March 1976.
    14. Thompson, R. J. et al., ``Analysis of Selected Elements in 
Atmospheric Particulate Matter by Atomic Absorption.'' Atomic Absorption 
Newsletter, 9, No. 3, May-June 1970.
    15. To be published. EPA, QAB, EMSL, RTP, N.C. 27711

[[Page 719]]

    16. Quality Assurance Handbook for Air Pollution Measurement 
Systems. Volume II--Ambient Air Specific Methods. EPA-600/4-77/027a, May 
1977.



[[Page 720]]




                                     

(Secs. 109, 301(a) of the Clean Air Act, as amended (42 U.S.C. 7409, 
7601(a)); secs. 110, 301(a) and 319 of the Clean Air Act (42 U.S.C. 
7410, 7601(a), 7619))

[43 FR 46258, Oct. 5, 1978; 44 FR 37915, June 29, 1979, as amended at 46 
FR 44163, Sept. 3, 1981; 52 FR 24664, July 1, 1987]

   Appendix H to Part 50--Interpretation of the National Ambient Air 
                       Quality Standards for Ozone

1. General

    This appendix explains how to determine when the expected number of 
days per calendar year with maximum hourly average concentrations above 
0.12 ppm (235 g/m3) is equal to or less than 1. An 
expanded discussion of these procedures and associated examples are 
contained in the ``Guideline for Interpretation of Ozone Air Quality 
Standards.'' For purposes of clarity in the following discussion, it is 
convenient to use the term ``exceedance'' to describe a daily maximum 
hourly average ozone measurement

[[Page 721]]

that is greater than the level of the standard. Therefore, the phrase 
``expected number of days with maximum hourly average ozone 
concentrations above the level of the standard'' may be simply stated as 
the ``expected number of exceedances.''
    The basic principle in making this determination is relatively 
straightforward. Most of the complications that arise in determining the 
expected number of annual exceedances relate to accounting for 
incomplete sampling. In general, the average number of exceedances per 
calendar year must be less than or equal to 1. In its simplest form, the 
number of exceedances at a monitoring site would be recorded for each 
calendar year and then averaged over the past 3 calendar years to 
determine if this average is less than or equal to 1.

2. Interpretation of Expected Exceedances

    The ozone standard states that the expected number of exceedances 
per year must be less than or equal to 1. The statistical term 
``expected number'' is basically an arithmetic average. The following 
example explains what it would mean for an area to be in compliance with 
this type of standard. Suppose a monitoring station records a valid 
daily maximum hourly average ozone value for every day of the year 
during the past 3 years. At the end of each year, the number of days 
with maximum hourly concentrations above 0.12 ppm is determined and this 
number is averaged with the results of previous years. As long as this 
average remains ``less than or equal to 1,'' the area is in compliance.

3. Estimating the Number of Exceedances for a Year

    In general, a valid daily maximum hourly average value may not be 
available for each day of the year, and it will be necessary to account 
for these missing values when estimating the number of exceedances for a 
particular calendar year. The purpose of these computations is to 
determine if the expected number of exceedances per year is less than or 
equal to 1. Thus, if a site has two or more observed exceedances each 
year, the standard is not met and it is not necessary to use the 
procedures of this section to account for incomplete sampling.
    The term ``missing value'' is used here in the general sense to 
describe all days that do not have an associated ozone measurement. In 
some cases, a measurement might actually have been missed but in other 
cases no measurement may have been scheduled for that day. A daily 
maximum ozone value is defined to be the highest hourly ozone value 
recorded for the day. This daily maximum value is considered to be valid 
if 75 percent of the hours from 9:01 a.m. to 9:00 p.m. (LST) were 
measured or if the highest hour is greater than the level of the 
standard.
    In some areas, the seasonal pattern of ozone is so pronounced that 
entire months need not be sampled because it is extremely unlikely that 
the standard would be exceeded. Any such waiver of the ozone monitoring 
requirement would be handled under provisions of 40 CFR, Part 58. Some 
allowance should also be made for days for which valid daily maximum 
hourly values were not obtained but which would quite likely have been 
below the standard. Such an allowance introduces a complication in that 
it becomes necessary to define under what conditions a missing value may 
be assumed to have been less than the level of the standard. The 
following criterion may be used for ozone:
    A missing daily maximum ozone value may be assumed to be less than 
the level of the standard if the valid daily maxima on both the 
preceding day and the following day do not exceed 75 percent of the 
level of the standard.
    Let z denote the number of missing daily maximum values that may be 
assumed to be less than the standard. Then the following formula shall 
be used to estimate the expected number of exceedances for the year:

                 e=v+[(v/n)8(N-n-z)]                (1)

    (*Indicates multiplication.)

where:

    e=the estimated number of exceedances for the year,
    N=the number of required monitoring days in the year,
    n=the number of valid daily maxima,
    v=the number of daily values above the level of the standard, and
    z=the number of days assumed to be less than the standard level.

    This estimated number of exceedances shall be rounded to one decimal 
place (fractional parts equal to 0.05 round up).
    It should be noted that N will be the total number of days in the 
year unless the appropriate Regional Administrator has granted a waiver 
under the provisions of 40 CFR part 58.
    The above equation may be interpreted intuitively in the following 
manner. The estimated number of exceedances is equal to the observed 
number of exceedances (v) plus an increment that accounts for incomplete 
sampling. There were (N-n) missing values for the year but a certain 
number of these, namely z, were assumed to be less than the standard. 
Therefore, (N-n-z) missing values are considered to include possible 
exceedances. The fraction of measured values that are above the level of 
the standard is v/n. It is assumed that this same fraction applies to 
the (N-n-z) missing values and

[[Page 722]]

that (v/n)*(N-n-z) of these values would also have exceeded the level of 
the standard.

[44 FR 8220, Feb. 8, 1979]

                         Appendix I--[Reserved]

    Appendix J to Part 50--Reference Method for the Determination of 
            Particulate Matter as PM10 in the Atmosphere

    1.0  Applicability.
    1.1  This method provides for the measurement of the mass 
concentration of particulate matter with an aerodynamic diameter less 
than or equal to a nominal 10 micrometers (PM1O) in ambient air 
over a 24-hour period for purposes of determining attainment and 
maintenance of the primary and secondary national ambient air quality 
standards for particulate matter specified in Sec. 50.6 of this chapter. 
The measurement process is nondestructive, and the PM10 sample can 
be subjected to subsequent physical or chemical analyses. Quality 
assurance procedures and guidance are provided in part 58, appendices A 
and B, of this chapter and in References 1 and 2.
    2.0  Principle.
    2.1  An air sampler draws ambient air at a constant flow rate into a 
specially shaped inlet where the suspended particulate matter is 
inertially separated into one or more size fractions within the 
PM10 size range. Each size fraction in the PM1O size range is 
then collected on a separate filter over the specified sampling period. 
The particle size discrimination characteristics (sampling effectiveness 
and 50 percent cutpoint) of the sampler inlet are prescribed as 
performance specifications in part 53 of this chapter.
    2.2  Each filter is weighed (after moisture equilibration) before 
and after use to determine the net weight (mass) gain due to collected 
PM10. The total volume of air sampled, corrected to EPA reference 
conditions (25 C, 101.3 kPa), is determined from the measured flow rate 
and the sampling time. The mass concentration of PM10 in the 
ambient air is computed as the total mass of collected particles in the 
PM10 size range divided by the volume of air sampled, and is 
expressed in micrograms per standard cubic meter (g/std m\3\). 
For PM10 samples collected at temperatures and pressures 
significantly different from EPA reference conditions, these corrected 
concentrations sometimes differ substantially from actual concentrations 
(in micrograms per actual cubic meter), particularly at high elevations. 
Although not required, the actual PM10 concentration can be 
calculated from the corrected concentration, using the average ambient 
temperature and barometric pressure during the sampling period.
    2.3  A method based on this principle will be considered a reference 
method only if (a) the associated sampler meets the requirements 
specified in this appendix and the requirements in part 53 of this 
chapter, and (b) the method has been designated as a reference method in 
accordance with part 53 of this chapter.
    3.0  Range.
    3.1  The lower limit of the mass concentration range is determined 
by the repeatability of filter tare weights, assuming the nominal air 
sample volume for the sampler. For samplers having an automatic filter-
changing mechanism, there may be no upper limit. For samplers that do 
not have an automatic filter-changing mechanism, the upper limit is 
determined by the filter mass loading beyond which the sampler no longer 
maintains the operating flow rate within specified limits due to 
increased pressure drop across the loaded filter. This upper limit 
cannot be specified precisely because it is a complex function of the 
ambient particle size distribution and type, humidity, filter type, and 
perhaps other factors. Nevertheless, all samplers should be capable of 
measuring 24-hour PM10 mass concentrations of at least 300 
g/std m\3\ while maintaining the operating flow rate within the 
specified limits.
    4.0  Precision.
    4.1  The precision of PM10 samplers must be 5 g/m\3\ 
for PM10 concentrations below 80 g/m\3\ and 7 percent for 
PM10 concentrations above 80 g/m\3\, as required by part 
53 of this chapter, which prescribes a test procedure that determines 
the variation in the PM10 concentration measurements of identical 
samplers under typical sampling conditions. Continual assessment of 
precision via collocated samplers is required by part 58 of this chapter 
for PM10 samplers used in certain monitoring networks.
    5.0  Accuracy.
    5.1  Because the size of the particles making up ambient particulate 
matter varies over a wide range and the concentration of particles 
varies with particle size, it is difficult to define the absolute 
accuracy of PM10 samplers. Part 53 of this chapter provides a 
specification for the sampling effectiveness of PM10 samplers. This 
specification requires that the expected mass concentration calculated 
for a candidate PM10 sampler, when sampling a specified particle 
size distribution, be within 10 percent of that calculated 
for an ideal sampler whose sampling effectiveness is explicitly 
specified. Also, the particle size for 50 percent sampling effectivensss 
is required to be 100.5 micrometers. Other specifications 
related to accuracy apply to flow measurement and calibration, filter 
media, analytical (weighing) procedures, and artifact. The flow rate 
accuracy of PM10 samplers used in certain monitoring networks is 
required by Part 58

[[Page 723]]

of this chapter to be assessed periodically via flow rate audits.
    6.0  Potential Sources of Error.
    6.1  Volatile Particles. Volatile particles collected on filters are 
often lost during shipment and/or storage of the filters prior to the 
post-sampling weighing \3\. Although shipment or storage of loaded 
filters is sometimes unavoidable, filters should be reweighed as soon as 
practical to minimize these losses.
    6.2  Artifacts. Positive errors in PM10 concentration 
measurements may result from retention of gaseous species on filters 
4, 5. Such errors include the retention of sulfur dioxide and 
nitric acid. Retention of sulfur dioxide on filters, followed by 
oxidation to sulfate, is referred to as artifact sulfate formation, a 
phenomenon which increases with increasing filter alkalinity \6\. Little 
or no artifact sulfate formation should occur using filters that meet 
the alkalinity specification in section 7.2.4. Artifact nitrate 
formation, resulting primarily from retention of nitric acid, occurs to 
varying degrees on many filter types, including glass fiber, cellulose 
ester, and many quartz fiber filters 5, 7, 8, 9, 10. Loss of true 
atmospheric particulate nitrate during or following sampling may also 
occur due to dissociation or chemical reaction. This phenomenon has been 
observed on Teflon filters \8\ and inferred for quartz fiber 
filters 11, 12. The magnitude of nitrate artifact errors in 
PM10 mass concentration measurements will vary with location and 
ambient temperature; however, for most sampling locations, these errors 
are expected to be small.
    6.3  Humidity. The effects of ambient humidity on the sample are 
unavoidable. The filter equilibration procedure in section 9.0 is 
designed to minimize the effects of moisture on the filter medium.
    6.4  Filter Handling. Careful handling of filters between 
presampling and postsampling weighings is necessary to avoid errors due 
to damaged filters or loss of collected particles from the filters. Use 
of a filter cartridge or cassette may reduce the magnitude of these 
errors. Filters must also meet the integrity specification in section 
7.2.3.
    6.5  Flow Rate Variation. Variations in the sampler's operating flow 
rate may alter the particle size discrimination characteristics of the 
sampler inlet. The magnitude of this error will depend on the 
sensitivity of the inlet to variations in flow rate and on the particle 
distribution in the atmosphere during the sampling period. The use of a 
flow control device (section 7.1.3) is required to minimize this error.
    6.6  Air Volume Determination. Errors in the air volume 
determination may result from errors in the flow rate and/or sampling 
time measurements. The flow control device serves to minimize errors in 
the flow rate determination, and an elapsed time meter (section 7.1.5) 
is required to minimize the error in the sampling time measurement.
    7.0  Apparatus.
    7.1  PM10 Sampler.
    7.1.1  The sampler shall be designed to:
    a. Draw the air sample into the sampler inlet and through the 
particle collection filter at a uniform face velocity.
    b. Hold and seal the filter in a horizontal position so that sample 
air is drawn downward through the filter.
    c. Allow the filter to be installed and removed conveniently.
    d. Protect the filter and sampler from precipitation and prevent 
insects and other debris from being sampled.
    e. Minimize air leaks that would cause error in the measurement of 
the air volume passing through the filter.
    f. Discharge exhaust air at a sufficient distance from the sampler 
inlet to minimize the sampling of exhaust air.
    g. Minimize the collection of dust from the supporting surface.
    7.1.2  The sampler shall have a sample air inlet system that, when 
operated within a specified flow rate range, provides particle size 
discrimination characteristics meeting all of the applicable performance 
specifications prescribed in part 53 of this chapter. The sampler inlet 
shall show no significant wind direction dependence. The latter 
requirement can generally be satisfied by an inlet shape that is 
circularly symmetrical about a vertical axis.
    7.1.3  The sampler shall have a flow control device capable of 
maintaining the sampler's operating flow rate within the flow rate 
limits specified for the sampler inlet over normal variations in line 
voltage and filter pressure drop.
    7.1.4  The sampler shall provide a means to measure the total flow 
rate during the sampling period. A continuous flow recorder is 
recommended but not required. The flow measurement device shall be 
accurate to 2 percent.
    7.1.5  A timing/control device capable of starting and stopping the 
sampler shall be used to obtain a sample collection period of 24 
1 hr (1,440 60 min). An elapsed time meter, 
accurate to within 15 minutes, shall be used to measure 
sampling time. This meter is optional for samplers with continuous flow 
recorders if the sampling time measurement obtained by means of the 
recorder meets the 15 minute accuracy specification.
    7.1.6  The sampler shall have an associated operation or instruction 
manual as required by part 53 of this chapter which includes detailed 
instructions on the calibration, operation, and maintenance of the 
sampler.
    7.2  Filters.
    7.2.1  Filter Medium. No commercially available filter medium is 
ideal in all respects for all samplers. The user's goals in

[[Page 724]]

sampling determine the relative importance of various filter 
characteristics (e.g., cost, ease of handling, physical and chemical 
characteristics, etc.) and, consequently, determine the choice among 
acceptable filters. Furthermore, certain types of filters may not be 
suitable for use with some samplers, particularly under heavy loading 
conditions (high mass concentrations), because of high or rapid increase 
in the filter flow resistance that would exceed the capability of the 
sampler's flow control device. However, samplers equipped with automatic 
filter-changing mechanisms may allow use of these types of filters. The 
specifications given below are minimum requirements to ensure 
acceptability of the filter medium for measurement of PM10 mass 
concentrations. Other filter evaluation criteria should be considered to 
meet individual sampling and analysis objectives.
    7.2.2  Collection Efficiency. 99 percent, as measured by 
the DOP test (ASTM-2986) with 0.3 m particles at the sampler's 
operating face velocity.
    7.2.3  Integrity. 5 g/m\3\ (assuming sampler's 
nominal 24-hour air sample volume). Integrity is measured as the 
PM10 concentration equivalent corresponding to the average 
difference between the initial and the final weights of a random sample 
of test filters that are weighed and handled under actual or simulated 
sampling conditions, but have no air sample passed through them (i.e., 
filter blanks). As a minimum, the test procedure must include initial 
equilibration and weighing, installation on an inoperative sampler, 
removal from the sampler, and final equilibration and weighing.
    7.2.4  Alkalinity. <25 microequivalents/gram of filter, as measured 
by the procedure given in Reference 13 following at least two months 
storage in a clean environment (free from contamination by acidic gases) 
at room temperature and humidity.
    7.3  Flow Rate Transfer Standard. The flow rate transfer standard 
must be suitable for the sampler's operating flow rate and must be 
calibrated against a primary flow or volume standard that is traceable 
to the National Bureau of Standards (NBS). The flow rate transfer 
standard must be capable of measuring the sampler's operating flow rate 
with an accuracy of 2 percent.
    7.4  Filter Conditioning Environment.
    7.4.1  Temperature range: 15 to 30 C.
    7.4.2  Temperature control: 3 C.
    7.4.3  Humidity range: 20% to 45% RH.
    7.4.4  Humidity control: 5% RH.
    7.5  Analytical Balance. The analytical balance must be suitable for 
weighing the type and size of filters required by the sampler. The range 
and sensitivity required will depend on the filter tare weights and mass 
loadings. Typically, an analytical balance with a sensitivity of 0.1 mg 
is required for high volume samplers (flow rates >0.5 m\3\/min). Lower 
volume samplers (flow rates <0.5 m\3\/min) will require a more sensitive 
balance.
    8.0  Calibration.
    8.1  General Requirements.
    8.1.1  Calibration of the sampler's flow measurement device is 
required to establish traceability of subsequent flow measurements to a 
primary standard. A flow rate transfer standard calibrated against a 
primary flow or volume standard shall be used to calibrate or verify the 
accuracy of the sampler's flow measurement device.
    8.1.2  Particle size discrimination by inertial separation requires 
that specific air velocities be maintained in the sampler's air inlet 
system. Therefore, the flow rate through the sampler's inlet must be 
maintained throughout the sampling period within the design flow rate 
range specified by the manufacturer. Design flow rates are specified as 
actual volumetric flow rates, measured at existing conditions of 
temperature and pressure (Qa). In contrast, mass concentrations of 
PM10 are computed using flow rates corrected to EPA reference 
conditions of temperature and pressure (Qstd).
    8.2  Flow Rate Calibration Procedure.
    8.2.1  PM10 samplers employ various types of flow control and 
flow measurement devices. The specific procedure used for flow rate 
calibration or verification will vary depending on the type of flow 
controller and flow indicator employed. Calibration in terms of actual 
volumetric flow rates (Qa) is generally recommended, but other 
measures of flow rate (e.g., Qstd) may be used provided the 
requirements of section 8.1 are met. The general procedure given here is 
based on actual volumetric flow units (Qa) and serves to illustrate 
the steps involved in the calibration of a PM10 sampler. Consult 
the sampler manufacturer's instruction manual and Reference 2 for 
specific guidance on calibration. Reference 14 provides additional 
information on the use of the commonly used measures of flow rate and 
their interrelationships.
    8.2.2  Calibrate the flow rate transfer standard against a primary 
flow or volume standard traceable to NBS. Establish a calibration 
relationship (e.g., an equation or family of curves) such that 
traceability to the primary standard is accurate to within 2 percent 
over the expected range of ambient conditions (i.e., temperatures and 
pressures) under which the transfer standard will be used. Recalibrate 
the transfer standard periodically.
    8.2.3  Following the sampler manufacturer's instruction manual, 
remove the sampler inlet and connect the flow rate transfer standard to 
the sampler such that the transfer standard accurately measures the 
sampler's flow rate. Make sure there are no leaks between the transfer 
standard and the sampler.

[[Page 725]]

    8.2.4  Choose a minimum of three flow rates (actual m\3\/min), 
spaced over the acceptable flow rate range specified for the inlet (see 
7.1.2) that can be obtained by suitable adjustment of the sampler flow 
rate. In accordance with the sampler manufacturer's instruction manual, 
obtain or verify the calibration relationship between the flow rate 
(actual m\3\/min) as indicated by the transfer standard and the 
sampler's flow indicator response. Record the ambient temperature and 
barometric pressure. Temperature and pressure corrections to subsequent 
flow indicator readings may be required for certain types of flow 
measurement devices. When such corrections are necessary, correction on 
an individual or daily basis is preferable. However, seasonal average 
temperature and average barometric pressure for the sampling site may be 
incorporated into the sampler calibration to avoid daily corrections. 
Consult the sampler manufacturer's instruction manual and Reference 2 
for additional guidance.
    8.2.5  Following calibration, verify that the sampler is operating 
at its design flow rate (actual m\3\/min) with a clean filter in place.
    8.2.6  Replace the sampler inlet.
    9.0  Procedure.
    9.1  The sampler shall be operated in accordance with the specific 
guidance provided in the sampler manufacturer's instruction manual and 
in Reference 2. The general procedure given here assumes that the 
sampler's flow rate calibration is based on flow rates at ambient 
conditions (Qa) and serves to illustrate the steps involved in the 
operation of a PM10 sampler.
    9.2  Inspect each filter for pinholes, particles, and other 
imperfections. Establish a filter information record and assign an 
identification number to each filter.
    9.3  Equilibrate each filter in the conditioning environment (see 
7.4) for at least 24 hours.
    9.4  Following equilibration, weigh each filter and record the 
presampling weight with the filter identification number.
    9.5  Install a preweighed filter in the sampler following the 
instructions provided in the sampler manufacturer's instruction manual.
    9.6  Turn on the sampler and allow it to establish run-temperature 
conditions. Record the flow indicator reading and, if needed, the 
ambient temperature and barometric pressure. Determine the sampler flow 
rate (actual m\3\/min) in accordance with the instructions provided in 
the sampler manufacturer's instruction manual. NOTE.--No onsite 
temperature or pressure measurements are necessary if the sampler's flow 
indicator does not require temperature or pressure corrections or if 
seasonal average temperature and average barometric pressure for the 
sampling site are incorporated into the sampler calibration (see step 
8.2.4). If individual or daily temperature and pressure corrections are 
required, ambient temperature and barometric pressure can be obtained by 
on-site measurements or from a nearby weather station. Barometric 
pressure readings obtained from airports must be station pressure, not 
corrected to sea level, and may need to be corrected for differences in 
elevation between the sampling site and the airport.
    9.7  If the flow rate is outside the acceptable range specified by 
the manufacturer, check for leaks, and if necessary, adjust the flow 
rate to the specified setpoint. Stop the sampler.
    9.8  Set the timer to start and stop the sampler at appropriate 
times. Set the elapsed time meter to zero or record the initial meter 
reading.
    9.9  Record the sample information (site location or identification 
number, sample date, filter identification number, and sampler model and 
serial number).
    9.10  Sample for 241 hours.
    9.11  Determine and record the average flow rate (Qa) in actual 
m\3\/min for the sampling period in accordance with the instructions 
provided in the sampler manufacturer's instruction manual. Record the 
elapsed time meter final reading and, if needed, the average ambient 
temperature and barometric pressure for the sampling period (see note 
following step 9.6).
    9.12  Carefully remove the filter from the sampler, following the 
sampler manufacturer's instruction manual. Touch only the outer edges of 
the filter.
    9.13  Place the filter in a protective holder or container (e.g., 
petri dish, glassine envelope, or manila folder).
    9.14  Record any factors such as meteorological conditions, 
construction activity, fires or dust storms, etc., that might be 
pertinent to the measurement on the filter information record.
    9.15  Transport the exposed sample filter to the filter conditioning 
environment as soon as possible for equilibration and subsequent 
weighing.
    9.16  Equilibrate the exposed filter in the conditioning environment 
for at least 24 hours under the same temperature and humidity conditions 
used for presampling filter equilibration (see 9.3).
    9.17  Immediately after equilibration, reweigh the filter and record 
the postsampling weight with the filter identification number.
    10.0  Sampler Maintenance.
    10.1  The PM10 sampler shall be maintained in strict accordance 
with the maintenance procedures specified in the sampler manufacturer's 
instruction manual.
    11.0  Calculations.
    11.1  Calculate the average flow rate over the sampling period 
corrected to EPA reference conditions as Qstd. When the sampler's

[[Page 726]]

flow indicator is calibrated in actual volumetric units (Qa), 
Qstd is calculated as:

Qstd=Qa x (Pav/Tav)(Tstd/Pstd)

where

Qstd=average flow rate at EPA reference conditions, std m\3\/min;
Qa=average flow rate at ambient conditions, m\3\/min;
Pav=average barometric pressure during the sampling period or 
          average barometric pressure for the sampling site, kPa (or mm 
          Hg);
Tav=average ambient temperature during the sampling period or 
          seasonal average ambient temperature for the sampling site, K;
Tstd=standard temperature, defined as 298 K;
Pstd=standard pressure, defined as 101.3 kPa (or 760 mm Hg).

    11.2  Calculate the total volume of air sampled as:

Vstd=Qstd x t

where

Vstd=total air sampled in standard volume units, std m\3\;
t=sampling time, min.

    11.3  Calculate the PM10 concentration as:

PM10=(Wf-Wi) x 10\6\/Vstd

where

PM10=mass concentration of PM10, g/std m\3\;
Wf, Wi=final and initial weights of filter collecting 
          PM1O particles, g;
10\6\=conversion of g to g.

    Note: If more than one size fraction in the PM10 size range is 
collected by the sampler, the sum of the net weight gain by each 
collection filter [(Wf-Wi)] is used to calculate the 
PM10 mass concentration.
    12.0  References.
    1. Quality Assurance Handbook for Air Pollution Measurement Systems, 
Volume I, Principles. EPA-600/9-76-005, March 1976. Available from CERI, 
ORD Publications, U.S. Environmental Protection Agency, 26 West St. 
Clair Street, Cincinnati, OH 45268.
    2. Quality Assurance Handbook for Air Pollution Measurement Systems, 
Volume II, Ambient Air Specific Methods. EPA-600/4-77-027a, May 1977. 
Available from CERI, ORD Publications, U.S. Environmental Protection 
Agency, 26 West St. Clair Street, Cincinnati, OH 45268.
    3. Clement, R.E., and F.W. Karasek. Sample Composition Changes in 
Sampling and Analysis of Organic Compounds in Aerosols. Int. J. Environ. 
Analyt. Chem., 7:109, 1979.
    4. Lee, R.E., Jr., and J. Wagman. A Sampling Anomaly in the 
Determination of Atmospheric Sulfate Concentration. Amer. Ind. Hyg. 
Assoc. J., 27:266, 1966.
    5. Appel, B.R., S.M. Wall, Y. Tokiwa, and M. Haik. Interference 
Effects in Sampling Particulate Nitrate in Ambient Air. Atmos. Environ., 
13:319, 1979.
    6. Coutant, R.W. Effect of Environmental Variables on Collection of 
Atmospheric Sulfate. Environ. Sci. Technol., 11:873, 1977.
    7. Spicer, C.W., and P. Schumacher. Interference in Sampling 
Atmospheric Particulate Nitrate. Atmos. Environ., 11:873, 1977.
    8. Appel, B.R., Y. Tokiwa, and M. Haik. Sampling of Nitrates in 
Ambient Air. Atmos. Environ., 15:283, 1981.
    9. Spicer, C.W., and P.M. Schumacher. Particulate Nitrate: 
Laboratory and Field Studies of Major Sampling Interferences. Atmos. 
Environ., 13:543, 1979.
    10. Appel, B.R. Letter to Larry Purdue, U.S. EPA, Environmental 
Monitoring and Support Laboratory. March 18, 1982, Docket No. A-82-37, 
II-I-1.
    11. Pierson, W.R., W.W. Brachaczek, T.J. Korniski, T.J. Truex, and 
J.W. Butler. Artifact Formation of Sulfate, Nitrate, and Hydrogen Ion on 
Backup Filters: Allegheny Mountain Experiment. J. Air Pollut. Control 
Assoc., 30:30, 1980.
    12. Dunwoody, C.L. Rapid Nitrate Loss From PM10 Filters. J. Air 
Pollut. Control Assoc., 36:817, 1986.
    13. Harrell, R.M. Measuring the Alkalinity of Hi-Vol Air Filters. 
EMSL/RTP-SOP-QAD-534, October 1985. Available from the U.S. 
Environmental Protection Agency, EMSL/QAD, Research Triangle Park, NC 
27711.
    14. Smith, F., P.S. Wohlschlegel, R.S.C. Rogers, and D.J. Mulligan. 
Investigation of Flow Rate Calibration Procedures Associated With the 
High Volume Method for Determination of Suspended Particulates. EPA-600/
4-78-047, U.S. Environmental Protection Agency, Research Triangle Park, 
NC 27711, 1978.

[52 FR 24664, July 1, 1987; 52 FR 29467, Aug. 7, 1987]

   Appendix K to Part 50--Interpretation of the National Ambient Air 
                Quality Standards for Particulate Matter

    1.0  General.
    This appendix explains the computations necessary for analyzing 
particulate matter data to determine attainment of the 24-hour and 
annual standards specified in 40 CFR 50.6. For the primary and secondary 
standards, particulate matter is measured in the ambient air as 
PM10 (particles with an aerodynamic diameter less than or equal to 
a nominal 10 micrometers) by a reference method based on appendix J of 
this part and designated in accordance with part 53 of this chapter, or 
by an equivalent method designated in accordance with part 53 of this

[[Page 727]]

chapter. The required frequency of measurements is specified in part 58 
of this chapter.
    Several terms used throughout this appendix must be defined. A 
``daily value'' for PM10 refers to the 24-hour average 
concentration of PM10 calculated or measured from midnight to 
midnight (local time). The term ``exceedance'' means a daily value that 
is above the level of the 24-hour standard after rounding to the nearest 
10 g/m\3\ (i.e., values ending in 5 or greater are to be 
rounded up). The term ``average'' refers to an arithmetic mean. All 
particulate matter standards are expressed in terms of expected annual 
values: expected number of exceedances per year for the 24-hour 
standards and expected annual arithmetic mean for the annual standards. 
The ``expected annual value'' is the number approached when the annual 
values from an increasing number of years are averaged, in the absence 
of long-term trends in emissions or meteorological conditions. The term 
``year'' refers to a calendar year.
    Although the discussion in this appendix focuses on monitored data, 
the same principles apply to modeling data, subject to EPA modeling 
guidelines.
    2.0  Attainment Determinations.
    2.1  24-Hour Primary and Secondary Standards.
    Under 40 CFR 50.6(a) the 24-hour primary and secondary standards are 
attained when the expected number of exceedances per year at each 
monitoring site is less than or equal to one. In the simplest case, the 
number of expected exceedances at a site is determined by recording the 
number of exceedances in each calendar year and then averaging them over 
the past 3 calendar years. Situations in which 3 years of data are not 
available and possible adjustments for unusual events or trends are 
discussed in Sections 2.3 and 2.4. Further, when data for a year are 
incomplete, it is necessary to compute an estimated number of 
exceedances for that year by adjusting the observed number of 
exceedances. This procedure, performed by calendar quarter, is described 
in Section 3. The expected number of exceedances is then estimated by 
averaging the individual annual estimates for the past 3 years.
    The comparison with the allowable expected exceedance rate of one 
per year is made in terms of a number rounded to the nearest tenth 
(fractional values equal to or greater than 0.05 are to be rounded up; 
e.g., an exceedance rate of 1.05 would be rounded to 1.1, which is the 
lowest rate for nonattainment).
    2.2  Annual Primary and Secondary Standards.
    Under 40 CFR 50.6(b), the annual primary and secondary standards are 
attained when the expected annual arithmetic mean PM10 
concentration is less than or equal to the level of the standard. In the 
simplest case, the expected annual arithmetic mean is determined by 
averaging the annual arithmetic mean PM10 concentrations for the 
past 3 calendar years. Because of the potential for incomplete data and 
the possible seasonality in PM10 concentrations, the annual mean 
shall be calculated by averaging the four quarterly means of PM10 
concentrations within the calendar year. The formulas for calculating 
the annual arithmetic mean are given in Section 4. Situations in which 3 
years of data are not available and possible adjustments for unusual 
events or trends are discussed in Sections 2.3 and 2.4. The expected 
annual arithmetic mean is rounded to the nearest 1 g/m\3\ 
before comparison with the annual standards (fractional values equal to 
or greater than 0.5 are to be rounded up).
    2.3  Data Requirements.
    40 CFR 58.13 specifies the required minimum frequency of sampling 
for PM10. For the purposes of making comparisons with the 
particulate matter standards, all data produced by National Air 
Monitoring Stations (NAMS), State and Local Air Monitoring Stations 
(SLAMS) and other sites submitted to EPA in accordance with the Part 58 
requirements must be used, and a minimum of 75 percent of the scheduled 
PM10 samples per quarter are required.
    To demonstrate attainment of either the annual or 24-hour standards 
at a monitoring site, the monitor must provide sufficient data to 
perform the required calculations of Sections 3 and 4. The amount of 
data required varies with the sampling frequency, data capture rate and 
the number of years of record. In all cases, 3 years of representative 
monitoring data that meet the 75 percent criterion of the previous 
paragraph should he utilized, if available, and would suffice. More than 
3 years may be considered, if all additional representative years of 
data meeting the 75 percent criterion are utilized. Data not meeting 
these criteria may also suffice to show attainment; however, such 
exceptions will have to be approved by the appropriate Regional 
Administrator in accordance with EPA guidance.
    There are less stringent data requirements for showing that a 
monitor has failed an attainment test and thus has recorded a violation 
of the particulate matter standards. Although it is generally necessary 
to meet the minimum 75 percent data capture requirement per quarter to 
use the computational formulas described in Sections 3 and 4, this 
criterion does not apply when less data is sufficient to unambiguously 
establish nonattainment. The following examples illustrate how 
nonattainment can be demonstrated when a site fails to meet the 
completeness criteria. Nonattainment of the 24-hour primary standards 
can be established by (a) the observed annual number of exceedances 
(e.g. four observed exceedances in a single year), or by (b) the 
estimated

[[Page 728]]

number of exceedances derived from the observed number of exceedances 
and the required number of scheduled samples (e.g. two observed 
exceedances with every other day sampling). Nonattainment of the annual 
standards can be demonstrated on the basis of quarterly mean 
concentrations developed from observed data combined with one-half the 
minimum detectable concentration substituted for missing values. In both 
cases, expected annual values must exceed the levels allowed by the 
standards.
    2.4  Adjustment for Exceptional Events and Trends.
    An exceptional event is an uncontrollable event caused by natural 
sources of particulate matter or an event that is not expected to recur 
at a given location. Inclusion of such a value in the computation of 
exceedances or averages could result in inappropriate estimates of their 
respective expected annual values. To reduce the effect of unusual 
events, more than 3 years of representative data may be used. 
Alternatively, other techniques, such as the use of statistical models 
or the use of historical data could be considered so that the event may 
be discounted or weighted according to the likelihood that it will 
recur. The use of such techniques is subject to the approval of the 
appropriate Regional Administrator in accordance with EPA guidance.
    In cases where long-term trends in emissions and air quality are 
evident, mathematical techniques should be applied to account for the 
trends to ensure that the expected annual values are not inappropriately 
biased by unrepresentative data. In the simplest case, if 3 years of 
data are available under stable emission conditions, this data should be 
used. In the event of a trend or shift in emission patterns, either the 
most recent representative year(s) could be used or statistical 
techniques or models could be used in conjunction with previous years of 
data to adjust for trends. The use of less than 3 years of data, and any 
adjustments are subject to the approval of the appropriate Regional 
Administrator in accordance with EPA guidance.
    3.0  Computational formulas for the 24-hour standards.
    3.1  Estimating Exceedances for a year.
    If PM10 sampling is scheduled less frequently than every day, 
or if some scheduled samples are missed, a PM10 value will not be 
available for each day of the year. To account for the possible effect 
of incomplete data, an adjustment must be made to the data collected at 
each monitoring location to estimate the number of exceedances in a 
calendar year. In this adjustment, the assumption is made that the 
fraction of missing values that would have exceeded the standard level 
is identical to the fraction of measured values above this level. This 
computation is to be made for all sites that are scheduled to monitor 
throughout the entire year and meet the minimum data requirements of 
Section 2.3. Because of possible seasonal imbalance, this adjustment 
shall be applied on a quarterly basis. The estimate of the expected 
number of exceedances for the quarter is equal to the observed number of 
exceedances plus an increment associated with the missing data. The 
following formula must be used for these computations:

                                                                        
              eq=vq+[(vq/nq) x (Nq-nq)]=vq x Nq/nq                  [1] 
                                                                        

where

eq=the estimated number of exceedances for calendar quarter q,
vq=the observed number of exceedances for calendar quarter q,
Nq=the number of days in calendar quarter q,
nq=the number of days in calendar quarter q with PM10 data, 
          and
q=the index for calendar quarter, q=1, 2, 3 or 4.

    The estimated number of exceedances for a calendar quarter must be 
rounded to the nearest hundredth (fractional values equal to or greater 
than 0.005 must be rounded up).
    The estimated number of exceedances for the year, e, is the sum of 
the estimates for each calendar quarter.

                                                                                                                
                                                             4                                                  
                                                                                                                
                                                 e =   <3-ln-grk-S>   eq                                    [2] 
                                                                                                                
                                                            q=1                                                 
                                                                                                                
                                                                                                                
                                                                                                                

    The estimated number of exceedances for a single year must be 
rounded to one decimal place (fractional values equal to or greater than 
0.05 are to be rounded up). The expected number of exceedances is then 
estimated by averaging the individual annual estimates for the most 
recent 3 or more representative years of data. The expected number of 
exceedances must be rounded to one decimal place (fractional values 
equal to or greater than 0.05 are to be rounded up).
    The adjustment for incomplete data will not be necessary for 
monitoring or modeling data which constitutes a complete record, i.e., 
365 days per year.
    To reduce the potential for overestimating the number of expected 
exceedances, the correction for missing data will not be required for a 
calendar quarter in which the first observed exceedance has occurred if: 
(a) there was only one exceedance in the calendar quarter, (b) everyday 
sampling is subsequently initiated and maintained for 4 calendar 
quarters in accordance with 40 CFR 58.13 and (c) data capture of 75 
percent is achieved during the required period of everyday sampling. In 
addition, if the first exceedance is observed in a calendar quarter in 
which the monitor is already sampling

[[Page 729]]

every day, no adjustment for missing data will be made to the first 
exceedance if a 75 percent data capture rate was achieved in the quarter 
in which it was observed.

                                Example 1

    During a particular calendar quarter, 39 out of a possible 92 
samples were recorded, with one observed exceedance of the 24-hour 
standard. Using formula [1], the estimated number of exceedances for the 
quarter is

eq=1 x 92/39=2.359 or 2.36

If the estimated exceedances for the other 3 calendar quarters in the 
year were 2.30, 0.0 and 0.0, then, using formula [2], the estimated 
number of exceedances for the year is 2.36+2.30+0.0+0.0 which equals 
4.66 or 4.7. If no exceedances were observed for the 2 previous years, 
then the expected number of exceedances is estimated by:

                         (1/3) x (4.7+0+0)=1.57

or 1.6. Since 1.6 exceeds the allowable number of expected exceedances, 
this monitoring site would fail the attainment test.

                                Example 2

    In this example, everyday sampling was initiated following the first 
observed exceedance as required by 40 CFR 58.13. Accordingly, the first 
observed exceedance would not be adjusted for incomplete sampling. 
During the next three quarters, 1.2 exceedances were estimated. In this 
case, the estimated exceedances for the year would be 1.0+1.2+0.0+0.0 
which equals 2.2. If, as before, no exceedances were observed for the 
two previous years, then the estimated exceedances for the 3-year period 
would then be (1/3) x (2.2+0.0+0.0)=0.7, and the monitoring site would 
not fail the attainment test.
    3.2 Adjustments for Non-Scheduled Sampling Days.
    If a systematic sampling schedule is used and sampling is performed 
on days in addition to the days specified by the systematic sampling 
schedule, e.g., during episodes of high pollution, then an adjustment 
must be made in the formula for the estimation of exceedances. Such an 
adjustment is needed to eliminate the bias in the estimate of the 
quarterly and annual number of exceedances that would occur if the 
chance of an exceedance is different for scheduled than for non-
scheduled days, as would be the case with episode sampling.
    The required adjustment treats the systematic sampling schedule as a 
stratified sampling plan. If the period from one scheduled sample until 
the day preceding the next scheduled sample is defined as a sampling 
stratum, then there is one stratum for each scheduled sampling day. An 
average number of observed exceedances is computed for each of these 
sampling strata. With nonscheduled sampling days, the estimated number 
of exceedances is defined as

                                                                        
                         mq                                             
                                                                        
 eq = (Nq/mq)  x    <3-ln-grk-S>  (vj/kj)                           [3] 
                                                                        
                         j=1                                            
                                                                        
                                                                        
                                                                        

where

eq=the estimated number of exceedances for the quarter.
Nq=the number of days in the quarter,
mq=the number of strata with samples during the quarter,
vj=the number of observed exceedances in stratum j, and
kj=the number of actual samples in stratum j.

    Note that if only one sample value is recorded in each stratum, then 
formula [3] reduces to formula [1].

                                Example 3

    A monitoring site samples according to a systematic sampling 
schedule of one sample every 6 days, for a total of 15 scheduled samples 
in a quarter out of a total of 92 possible samples. During one 6-day 
period, potential episode levels of PM10 were suspected, so 5 
additional samples were taken. One of the regular scheduled samples was 
missed, so a total of 19 samples in 14 sampling strata were measured. 
The one 6-day sampling stratum with 6 samples recorded 2 exceedances. 
The remainder of the quarter with one sample per stratum recorded zero 
exceedances. Using formula [3], the estimated number of exceedances for 
the quarter is

eq=(92/14) x (2/6+0+. . .+0)=2.19
    4.0 Computational Formulas for Annual Standards.
    4.1 Calculation of the Annual Arithmetic Mean.
    An annual arithmetic mean value for PM10 is determined by 
averaging the quarterly means for the 4 calendar quarters of the year. 
The following formula is to be used for calculation of the mean for a 
calendar quarter:

                                                                                                                
                                                                 nq                                             
                                                                                                                
                                           xq = (1/nq)  x   <3-ln-grk-S>   xi                               [4] 
                                                                                                                
                                                                 i=1                                            
                                                                                                                
                                                                                                                
                                                                                                                

where

xq= the quarterly mean concentration for quarter q, q=1, 2, 3, or 
          4,
nq= the number of samples in the quarter, and
xi= the ith concentration value recorded in the quarter.


[[Page 730]]


    The quarterly mean, expressed in g/m\3\, must be rounded to 
the nearest tenth (fractional values of 0.05 should be rounded up).
    The annual mean is calculated by using the following formula:

                                                                                                                
                                                                 4                                              
                                                                                                                
                                           x = (1/4)  x    <3-ln-grk-S>   xq                                [5] 
                                                                                                                
                                                                q=1                                             
                                                                                                                
                                                                                                                
                                                                                                                

where

x=the annual mean, and
xq=the mean for calendar quarter q.

    The average of quarterly means must be rounded to the nearest tenth 
(fractional values of 0.05 should be rounded up).
    The use of quarterly averages to compute the annual average will not 
be necessary for monitoring or modeling data which results in a complete 
record, i.e., 365 days per year.
    The expected annual mean is estimated as the average of three or 
more annual means. This multi-year estimate, expressed in g/
m\3\, shall be rounded to the nearest integer for comparison with the 
annual standard (fractional values of 0.5 should be rounded up).

                                Example 4

    Using formula [4], the quarterly means are calculated for each 
calendar quarter. If the quarterly means are 52.4, 75.3, 82.1, and 63.2 
g/m \3\, then the annual mean is

x = (1/4) x (52.4+75.3+82.1+63.2)
    = 68.25 or 68.3
    4.2  Adjustments for Non-scheduled Sampling Days.
    An adjustment in the calculation of the annual mean is needed if 
sampling is performed on days in addition to the days specified by the 
systematic sampling schedule. For the same reasons given in the 
discussion of estimated exceedances (Section 3.2), the quarterly 
averages would be calculated by using the following formula:

                                                                                                                
                         mq            kj                                                                       
                                                                                                                
  xq = (1/mq)  x    <3-ln-grk-S>  <3-ln-grk-S>   (xij/kj)                                                   [6] 
                                                                                                                
                         j=1           i=1                                                                      
                                                                                                                
                                                                                                                
                                                                                                                

where

xq=the quarterly mean concentration for quarter q, q=1, 2, 3, or 4,
xij=the ith concentration value recorded in stratum j,
kj=the number of actual samples in stratum j, and
mq=the number of strata with data in the quarter.


    If one sample value is recorded in each stratum, formula [6] reduces 
to a simple arithmetic average of the observed values as described by 
formula [4].

                                Example 5

    During one calendar quarter, 9 observations were recorded. These 
samples were distributed among 7 sampling strata, with 3 observations in 
one stratum. The concentrations of the 3 observations in the single 
stratum were 202, 242, and 180 g/m\3\. The remaining 6 observed 
concentrations were 55, 68, 73, 92, 120, and 155 g/m\3\. 
Applying the weighting factors specified in formula [6], the quarterly 
mean is

xq = (1/7) x [(1/3) x (202+242+180)+
    55+68+73+92+120+155]
    = 110.1

    Although 24-hour measurements are rounded to the nearest 10 
g/m\3\ for determinations of exceedances of the 24-hour 
standard, note that these values are rounded to the nearest 1 
g/m\3\ for the calculation of means.

[52 FR 24667, July 1, 1987; 52 FR 26402, July 14, 1987; 52 FR 29382, 
Aug. 7, 1987; 52 FR 31701, Aug. 21, 1987]



PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS--Table of Contents




                        Subparts A-E--[Reserved]

                   Subpart F--Procedural Requirements

Sec.
51.100  Definitions.
51.101  Stipulations.
51.102  Public hearings.
51.103  Submission of plans; preliminary review of plans.
51.104  Revisions.
51.105  Approval of plans.

                       Subpart G--Control Strategy

51.110  Attainment and maintenance of national standards.
51.111  Description of control measures.
51.112  Demonstration of adequacy.
51.113  [Reserved]
51.114  Emissions data and projections.
51.115  Air quality data and projections.
51.116  Data availability.
51.117  Additional provisions for lead.
51.118  Stack height provisions.
51.119  Intermittent control systems.
51.120  Requirements for State implementation plan revisions relating to 
          new motor vehicles.

[[Page 731]]

        Subpart H--Prevention of Air Pollution Emergency Episodes

51.150  Classification of regions for episode plans.
51.151  Significant harm levels.
51.152  Contingency plans.
51.153  Reevaluation of episode plans.

           Subpart I--Review of New Sources and Modifications

51.160  Legally enforceable procedures.
51.161  Public availability of information.
51.162  Identification of responsible agency.
51.163  Administration procedures.
51.164  Stack height procedures.
51.165  Permit requirements.
51.166  Prevention of significant deterioration of air quality.

               Subpart J--Ambient Air Quality Surveillance

51.190  Ambient air quality monitoring requirements.

                     Subpart K--Source Survelliance

51.210  General.
51.211  Emission reports and recordkeeping.
51.212  Testing, inspection, enforcement, and complaints.
51.213  Transportation control measures.
51.214  Continuous emission monitoring.

                       Subpart L--Legal Authority

51.230  Requirements for all plans.
51.231  Identification of legal authority.
51.232  Assignment of legal authority to local agencies.

                Subpart M--Intergovernmental Consultation

                           Agency Designation

51.240  General plan requirements.
51.241  Nonattainment areas for carbon monoxide and ozone.
51.242  [Reserved]

                     Subpart N--Compliance Schedules

51.260  Legally enforceable compliance schedules.
51.261  Final compliance schedules.
51.262  Extension beyond one year.

           Subpart O--Miscellaneous Plan Content Requirements

51.280  Resources.
51.281  Copies of rules and regulations.
51.285  Public notification.

                   Subpart P--Protection of Visibility

51.300  Purpose and applicability.
51.301  Definitions.
51.302  Implementation control strategies.
51.303  Exemptions from control.
51.304  Identification of integral vistas.
51.305  Monitoring.
51.306  Long-term strategy.
51.307  New source review.

                           Subpart Q--Reports

                       Air Quality Data Reporting

51.320  Annual air quality data report.

               Source Emissions and State Action Reporting

51.321  Annual source emissions and State action report.
51.322  Sources subject to emissions reporting.
51.323  Reportable emissions data and information.
51.324  Progress in plan enforcement.
51.326  Reportable revisions.
51.327  Enforcement orders and other State actions.
51.328  [Reserved]

                          Subpart R--Extensions

51.341  Request for 18-month extension.

         Subpart S--Inspection/Maintenance Program Requirements

51.350  Applicability.
51.351  Enhanced I/M performance standard.
51.352  Basic I/M performance standard.
51.353  Network type and program evaluation.
51.354  Adequate tools and resources.
51.355  Test frequency and convenience.
51.356  Vehicle coverage.
51.357  Test procedures and standards.
51.358  Test equipment.
51.359  Quality control.
51.360  Waivers and compliance via diagnostic inspection.
51.361  Motorist compliance enforcement.
51.362  Motorist compliance enforcement program oversight.
51.363  Quality assurance.
51.364  Enforcement against contractors, stations and inspectors.
51.365  Data collection.
51.366  Data analysis and reporting.
51.367  Inspector training and licensing or certification.
51.368  Public information and consumer protection.
51.369  Improving repair effectiveness.
51.370  Compliance with recall notices.
51.371  On-road testing.

[[Page 732]]

51.372  State implementation plan submissions.
51.373  Implementation deadlines.

                   Appendices to Supbart S of Part 51

Appendix A to Subpart S--Calibrations, Adjustments and Quality Control
Appendix B to Subpart S--Test Procedures
Appendix C to Subpart S--Steady-State Short Test Standards
Appendix D to Subpart S--Steady-State Short Test Equipment
Appendix E to Subpart S--Transient Test Driving Cycle

   Subpart T--Conformity to State or Federal Implementation Plans of 
   Transportation Plans, Programs, and Projects Developed, Funded or 
        Approved Under Title 23 U.S.C. or the Federal Transit Act

51.390 Purpose.
51.392 Definitions.
51.394 Applicability.
51.396 Implementation plan revision.
51.398 Priority.
51.400 Frequency of conformity determinations.
51.402 Consultation.
51.404 Content of transportation plans.
51.406 Relationship of transportation plan and TIP conformity with the 
          NEPA process.
51.408 Fiscal constraints for transportation plans and TIPs.
51.410 Criteria and procedures for determining conformity of 
          transportation plans, programs, and projects: General.
51.412 Criteria and procedures: Latest planning assumptions.
51.414 Criteria and procedures: Latest emissions model.
51.416 Criteria and procedures: Consultation.
51.418 Criteria and procedures: Timely implementation of TCMs.
51.420 Criteria and procedures: Currently conforming transportation plan 
          and TIP.
51.422 Criteria and procedures: Projects from a plan and TIP.
51.424 Criteria and procedures: Localized CO and PM10 violations 
          (hot spots).
51.426 Criteria and procedures: Compliance with PM10 control 
          measures.
51.428 Criteria and procedures: Motor vehicle emissions budget 
          (transportation plan).
51.430 Criteria and procedures: Motor vehicle emissions budget (TIP).
51.432 Criteria and procedures: Motor vehicle emissions budget (project 
          not from a plan and TIP).
51.434 Criteria and procedures: Localized CO violations (hot spots) in 
          the interim period.
51.436 Criteria and procedures: Interim period reductions in ozone and 
          CO areas (transportation plan).
51.438 Criteria and procedures: Interim period reductions in ozone and 
          CO areas (TIP).
51.440 Criteria and procedures: Interim period reductions for ozone and 
          CO areas (project not from a plan and TIP).
51.442 Criteria and procedures: Interim period reductions for PM10 
          and NO2 areas (transportation plan).
51.444 Criteria and procedures: Interim period reductions for PM10 
          and NO2 areas (TIP).
51.446 Criteria and procedures: Interim period reductions for PM10 
          and NO2 areas (project not from a plan and TIP).
51.448 Transition from the interim period to the control strategy 
          period.
51.450 Requirements for adoption or approval of projects by other 
          recipients of funds designated under title 23 U.S.C. or the 
          Federal Transit Act.
51.452 Procedures for determining regional transportation-related 
          emissions.
51.454 Procedures for determining localized CO and PM10 
          concentrations (hot-spot analysis).
51.456 Using the motor vehicle emissions budget in the applicable 
          implementation plan (or implementation plan submission).
51.458 Enforceability of design concept and scope and project-level 
          mitigation and control measures.
51.460 Exempt projects.
51.462 Projects exempt from regional emissions analyses.
51.464 Special provisions for nonattainment areas which are not required 
          to demonstrate reasonable further progress and attainment.

                 Subpart U--Economic Incentive Programs

51.490 Applicability.
51.491 Definitions.
51.492 State program election and submittal.
51.493 State program requirements.
51.494 Use of program revenues.

Subpart W--Determining Conformity of General Federal Actions to State or 
                      Federal Implementation Plans

Sec.
51.850  Prohibition.
51.851  State implementation plan (SIP) revision.
51.852  Definitions.
51.853  Applicability.
51.854  Conformity analysis.
51.855  Reporting requirements.
51.856  Public participation.
51.857  Frequency of conformity determinations.

[[Page 733]]

51.858  Criteria for determining conformity of general Federal actions.
51.859  Procedures for conformity determinations of general Federal 
          actions.
51.860  Mitigation of air quality impacts.
Appendices A-K--[Reserved]
Appendix L to Part 51--Example Regulations for Prevention of Air 
          Pollution Emergency Episodes
Appendix M to Part 51--Recommended Test Methods for State Implementation 
          Plans
Appendices N-O--[Reserved]
Appendix P to Part 51--Minimum Emission Monitoring Requirements
Appendices Q-R--[Reserved]
Appendix S to Part 51--Emission Offset Interpretative Ruling
Appendix T-U--[Reserved]
Appendix V to Part 51--Criteria for Determining the Completeness of Plan 
          Submissions
Appendix W to Part 51--Guideline on Air Quality Models [Revised]
Appendix X to Part 51--Examples of Economic Incentive Programs

    Authority: 42 U.S.C. 7401-7671q.

    Source: 36 FR 22398, Nov. 25, 1971, unless otherwise noted.



                        Subparts A-E--[Reserved]



                   Subpart F--Procedural Requirements

    Source: 51 FR 40661, Nov. 7, 1986, unless otherwise noted.



Sec. 51.100  Definitions.

    As used in this part, all terms not defined herein will have the 
meaning given them in the Act:
    (a) Act means the Clean Air Act (42 U.S.C. 7401 et seq., as amended 
by Pub. L. 91-604, 84 Stat. 1676 Pub. L. 95-95, 91 Stat., 685 and Pub. 
L. 95-190, 91 Stat., 1399.)
    (b) Administrator means the Administrator of the Environmental 
Protection Agency (EPA) or an authorized representative.
    (c) Primary standard means a national primary ambient air quality 
standard promulgated pursuant to section 109 of the Act.
    (d) Secondary standard means a national secondary ambient air 
quality standard promulgated pursuant to section 109 of the Act.
    (e) National standard means either a primary or secondary standard.
    (f) Owner or operator means any person who owns, leases, operates, 
controls, or supervises a facility, building, structure, or installation 
which directly or indirectly result or may result in emissions of any 
air pollutant for which a national standard is in effect.
    (g) Local agency means any local government agency other than the 
State agency, which is charged with responsibility for carrying out a 
portion of the plan.
    (h) Regional Office means one of the ten (10) EPA Regional Offices.
    (i) State agency means the air pollution control agency primarily 
responsible for development and implementation of a plan under the Act.
    (j) Plan means an implementation plan approved or promulgated under 
section 110 of 172 of the Act.
    (k) Point source means the following:
    (1) For particulate matter, sulfur oxides, carbon monoxide, volatile 
organic compounds (VOC) and nitrogen dioxide--
    (i) Any stationary source the actual emissions of which are in 
excess of 90.7 metric tons (100 tons) per year of the pollutant in a 
region containing an area whose 1980 urban place population, as defined 
by the U.S. Bureau of the Census, was equal to or greater than 1 
million.
    (ii) Any stationary source the actual emissions of which are in 
excess of 22.7 metric tons (25 tons) per year of the pollutant in a 
region containing an area whose 1980 urban place population, as defined 
by the U.S. Bureau of the Census, was less than 1 million; or
    (2) For lead or lead compounds measured as elemental lead, any 
stationary source that actually emits a total of 4.5 metric tons (5 
tons) per year or more.
    (l) Area source means any small residential, governmental, 
institutional, commercial, or industrial fuel combustion operations; 
onsite solid waste disposal facility; motor vehicles, aircraft vessels, 
or other transportation facilities or other miscellaneous sources 
identified through inventory techniques similar to those described in 
the ``AEROS Manual series, Vol. II AEROS User's Manual,'' EPA-450/2-76-
029 December 1976.

[[Page 734]]

    (m) Region means an area designated as an air quality control region 
(AQCR) under section 107(c) of the Act.
    (n) Control strategy means a combination of measures designated to 
achieve the aggregate reduction of emissions necessary for attainment 
and maintenance of national standards including, but not limited to, 
measures such as:
    (1) Emission limitations.
    (2) Federal or State emission charges or taxes or other economic 
incentives or disincentives.
    (3) Closing or relocation of residential, commercial, or industrial 
facilities.
    (4) Changes in schedules or methods of operation of commercial or 
industrial facilities or transportation systems, including, but not 
limited to, short-term changes made in accordance with standby plans.
    (5) Periodic inspection and testing of motor vehicle emission 
control systems, at such time as the Administrator determines that such 
programs are feasible and practicable.
    (6) Emission control measures applicable to in-use motor vehicles, 
including, but not limited to, measures such as mandatory maintenance, 
installation of emission control devices, and conversion to gaseous 
fuels.
    (7) Any transportation control measure including those 
transportation measures listed in section 108(f) of the Clean Air Act as 
amended.
    (8) Any variation of, or alternative to any measure delineated 
herein.
    (9) Control or prohibition of a fuel or fuel additive used in motor 
vehicles, if such control or prohibition is necessary to achieve a 
national primary or secondary air quality standard and is approved by 
the Administrator under section 211(c)(4)(C) of the Act.
    (o) Reasonably available control technology (RACT) means devices, 
systems, process modifications, or other apparatus or techniques that 
are reasonably available taking into account:
    (1) The necessity of imposing such controls in order to attain and 
maintain a national ambient air quality standard;
    (2) The social, environmental, and economic impact of such controls; 
and
    (3) Alternative means of providing for attainment and maintenance of 
such standard, (This provision defines RACT for the purposes of 
Sec. Sec. 51.110(c)(2) and 51.341(b) only.)
    (p) Compliance schedule means the date or dates by which a source or 
category of sources is required to comply with specific emission 
limitations contained in an implementation plan and with any increments 
of progress toward such compliance.
    (q) Increments of progress means steps toward compliance which will 
be taken by a specific source, including:
    (1) Date of submittal of the source's final control plan to the 
appropriate air pollution control agency;
    (2) Date by which contracts for emission control systems or process 
modifications will be awarded; or date by which orders will be issued 
for the purchase of component parts to accomplish emission control or 
process modification;
    (3) Date of initiation of on-site construction or installation of 
emission control equipment or process change;
    (4) Date by which on-site construction or installation of emission 
control equipment or process modification is to be completed; and
    (5) Date by which final compliance is to be achieved.
    (r) Transportation control measure means any measure that is 
directed toward reducing emissions of air pollutants from transportation 
sources. Such measures include, but are not limited to, those listed in 
section 108(f) of the Clean Air Act.
    (s) Volatile organic compounds (VOC) means any compound of carbon, 
excluding carbon monoxide, carbon dioxide, carbonic acid, metallic 
carbides or carbonates, and ammonium carbonate, which participates in 
atmospheric photochemical reactions.
    (1) This includes any such organic compound other than the 
following, which have been determined to have negligible photochemical 
reactivity: methane; ethane; methylene chloride (dichloromethane); 
1,1,1-trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-
trifluoroethane (CFC-113); trichlorofluoromethane (CFC-11); 
dichlorodifluoromethane (CFC-12); chlorodifluoromethane (HCFC-22); 
trifluoromethane (HFC-23); 1,2-dichloro 1,1,2,2-tetrafluoroethane

[[Page 735]]

(CFC-114); chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-
dichloroethane (HCFC-123); 1,1,1,2-tetrafluoroethane (HFC-134a); 1,1-
dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-difluoroethane (HCFC-
142b); 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124); pentafluoroethane 
(HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane 
(HFC-143a); 1,1-difluoroethane (HFC-152a); parachlorobenzotrifluoride 
(PCBTF); cyclic, branched, or linear completely methylated siloxanes; 
acetone; perchloroethylene (tetrachloroethylene) and perfluorocarbon 
compounds which fall into these classes:
    (i) Cyclic, branched, or linear, completely fluorinated alkanes;
    (ii) Cyclic, branched, or linear, completely fluorinated ethers with 
no unsaturations;
    (iii) Cyclic, branched, or linear, completely fluorinated tertiary 
amines with no unsaturations; and
    (iv) Sulfur containing perfluorocarbons with no unsaturations and 
with sulfur bonds only to carbon and fluorine.
    (2) For purposes of determining compliance with emissions limits, 
VOC will be measured by the test methods in the approved State 
implementation plan (SIP) or 40 CFR part 60, appendix A, as applicable. 
Where such a method also measures compounds with negligible 
photochemical reactivity, these negligibility-reactive compounds may be 
excluded as VOC if the amount of such compounds is accurately 
quantified, and such exclusion is approved by the enforcement authority.
    (3) As a precondition to excluding these compounds as VOC or at any 
time thereafter, the enforcement authority may require an owner or 
operator to provide monitoring or testing methods and results 
demonstrating, to the satisfaction of the enforcement authority, the 
amount of negligibly-reactive compounds in the source's emissions.
    (4) For purposes of Federal enforcement for a specific source, the 
EPA shall use the test methods specified in the applicable EPA-approved 
SIP, in a permit issued pursuant to a program approved or promulgated 
under title V of the Act, or under 40 CFR part 51, subpart I or appendix 
S, or under 40 CFR parts 52 or 60. The EPA shall not be bound by any 
State determination as to appropriate methods for testing or monitoring 
negligibly-reactive compounds if such determination is not reflected in 
any of the above provisions.
    (t)-(w) [Reserved]
    (x) Time period means any period of time designated by hour, month, 
season, calendar year, averaging time, or other suitable 
characteristics, for which ambient air quality is estimated.
    (y) Variance means the temporary deferral of a final compliance date 
for an individual source subject to an approved regulation, or a 
temporary change to an approved regulation as it applies to an 
individual source.
    (z) Emission limitation and emission standard mean a requirement 
established by a State, local government, or the Administrator which 
limits the quantity, rate, or concentration of emissions of air 
pollutants on a continuous basis, including any requirements which limit 
the level of opacity, prescribe equipment, set fuel specifications, or 
prescribe operation or maintenance procedures for a source to assure 
continuous emission reduction.
    (aa) Capacity factor means the ratio of the average load on a 
machine or equipment for the period of time considered to the capacity 
rating of the machine or equipment.
    (bb) Excess emissions means emissions of an air pollutant in excess 
of an emission standard.
    (cc) Nitric acid plant means any facility producing nitric acid 30 
to 70 percent in strength by either the pressure or atmospheric pressure 
process.
    (dd) Sulfuric acid plant means any facility producing sulfuric acid 
by the contact process by burning elemental sulfur, alkylation acid, 
hydrogen sulfide, or acid sludge, but does not include facilities where 
conversion to sulfuric acid is utilized primarily as a means of 
preventing emissions to the atmosphere of sulfur dioxide or other sulfur 
compounds.
    (ee) Fossil fuel-fired steam generator means a furnance or bioler 
used in the process of burning fossil fuel for the primary purpose of 
producing steam by heat transfer.

[[Page 736]]

    (ff) Stack means any point in a source designed to emit solids, 
liquids, or gases into the air, including a pipe or duct but not 
including flares.
    (gg) A stack in existence means that the owner or operator had (1) 
begun, or caused to begin, a continuous program of physical on-site 
construction of the stack or (2) entered into binding agreements or 
contractual obligations, which could not be cancelled or modified 
without substantial loss to the owner or operator, to undertake a 
program of construction of the stack to be completed within a reasonable 
time.
    (hh)(1) Dispersion technique means any technique which attempts to 
affect the concentration of a pollutant in the ambient air by:
    (i) Using that portion of a stack which exceeds good engineering 
practice stack height:
    (ii) Varying the rate of emission of a pollutant according to 
atmospheric conditions or ambient concentrations of that pollutant; or
    (iii) Increasing final exhaust gas plume rise by manipulating source 
process parameters, exhaust gas parameters, stack parameters, or 
combining exhaust gases from several existing stacks into one stack; or 
other selective handling of exhaust gas streams so as to increase the 
exhaust gas plume rise.
    (2) The preceding sentence does not include:
    (i) The reheating of a gas stream, following use of a pollution 
control system, for the purpose of returning the gas to the temperature 
at which it was originally discharged from the facility generating the 
gas stream;
    (ii) The merging of exhaust gas streams where:
    (A) The source owner or operator demonstrates that the facility was 
originally designed and constructed with such merged gas streams;
    (B) After July 8, 1985 such merging is part of a change in operation 
at the facility that includes the installation of pollution controls and 
is accompanied by a net reduction in the allowable emissions of a 
pollutant. This exclusion from the definition of dispersion techniques 
shall apply only to the emission limitation for the pollutant affected 
by such change in operation; or
    (C) Before July 8, 1985, such merging was part of a change in 
operation at the facility that included the installation of emissions 
control equipment or was carried out for sound economic or engineering 
reasons. Where there was an increase in the emission limitation or, in 
the event that no emission limitation was in existence prior to the 
merging, an increase in the quantity of pollutants actually emitted 
prior to the merging, the reviewing agency shall presume that merging 
was significantly motivated by an intent to gain emissions credit for 
greater dispersion. Absent a demonstration by the source owner or 
operator that merging was not significantly motivated by such intent, 
the reviewing agency shall deny credit for the effects of such merging 
in calculating the allowable emissions for the source;
    (iii) Smoke management in agricultural or silvicultural prescribed 
burning programs;
    (iv) Episodic restrictions on residential woodburning and open 
burning; or
    (v) Techniques under Sec. 51.100(hh)(1)(iii) which increase final 
exhaust gas plume rise where the resulting allowable emissions of sulfur 
dioxide from the facility do not exceed 5,000 tons per year.
    (ii) Good engineering practice (GEP) stack height means the greater 
of:
    (1) 65 meters, measured from the ground-level elevation at the base 
of the stack:
    (2)(i) For stacks in existence on January 12, 1979, and for which 
the owner or operator had obtained all applicable permits or approvals 
required under 40 CFR parts 51 and 52.

Hg=2.5H,

provided the owner or operator produces evidence that this equation was 
actually relied on in establishing an emission limitation:
    (ii) For all other stacks,

Hg=H + 1.5L

where

Hg=good engineering practice stack height, measured from the 
          ground-level elevation at the base of the stack,
H=height of nearby structure(s) measured from the ground-level elevation 
          at the base of the stack.

[[Page 737]]

L=lesser dimension, height or projected width, of nearby structure(s)

provided that the EPA, State or local control agency may require the use 
of a field study or fluid model to verify GEP stack height for the 
source; or
    (3) The height demonstrated by a fluid model or a field study 
approved by the EPA State or local control agency, which ensures that 
the emissions from a stack do not result in excessive concentrations of 
any air pollutant as a result of atmospheric downwash, wakes, or eddy 
effects created by the source itself, nearby structures or nearby 
terrain features.
    (jj) Nearby as used in Sec. 51.100(ii) of this part is defined for a 
specific structure or terrain feature and
    (1) For purposes of applying the formulae provided in 
Sec. 51.100(ii)(2) means that distance up to five times the lesser of 
the height or the width dimension of a structure, but not greater than 
0.8 km (\1/2\ mile), and
    (2) For conducting demonstrations under Sec. 51.100(ii)(3) means not 
greater than 0.8 km (\1/2\ mile), except that the portion of a terrain 
feature may be considered to be nearby which falls within a distance of 
up to 10 times the maximum height (Ht) of the feature, not to 
exceed 2 miles if such feature achieves a height (Ht) 0.8 km from 
the stack that is at least 40 percent of the GEP stack height determined 
by the formulae provided in Sec. 51.100(ii)(2)(ii) of this part or 26 
meters, whichever is greater, as measured from the ground-level 
elevation at the base of the stack. The height of the structure or 
terrain feature is measured from the ground-level elevation at the base 
of the stack.
    (kk) Excessive concentration is defined for the purpose of 
determining good engineering practice stack height under 
Sec. 51.100(ii)(3) and means:
    (1) For sources seeking credit for stack height exceeding that 
established under Sec. 51.100(ii)(2) a maximum ground-level 
concentration due to emissions from a stack due in whole or part to 
downwash, wakes, and eddy effects produced by nearby structures or 
nearby terrain features which individually is at least 40 percent in 
excess of the maximum concentration experienced in the absence of such 
downwash, wakes, or eddy effects and which contributes to a total 
concentration due to emissions from all sources that is greater than an 
ambient air quality standard. For sources subject to the prevention of 
significant deterioration program (40 CFR 51.166 and 52.21), an 
excessive concentration alternatively means a maximum ground-level 
concentration due to emissions from a stack due in whole or part to 
downwash, wakes, or eddy effects produced by nearby structures or nearby 
terrain features which individually is at least 40 percent in excess of 
the maximum concentration experienced in the absence of such downwash, 
wakes, or eddy effects and greater than a prevention of significant 
deterioration increment. The allowable emission rate to be used in 
making demonstrations under this part shall be prescribed by the new 
source performance standard that is applicable to the source category 
unless the owner or operator demonstrates that this emission rate is 
infeasible. Where such demonstrations are approved by the authority 
administering the State implementation plan, an alternative emission 
rate shall be established in consultation with the source owner or 
operator.
    (2) For sources seeking credit after October 11, 1983, for increases 
in existing stack heights up to the heights established under 
Sec. 51.100(ii)(2), either (i) a maximum ground-level concentration due 
in whole or part to downwash, wakes or eddy effects as provided in 
paragraph (kk)(1) of this section, except that the emission rate 
specified by any applicable State implementation plan (or, in the 
absence of such a limit, the actual emission rate) shall be used, or 
(ii) the actual presence of a local nuisance caused by the existing 
stack, as determined by the authority administering the State 
implementation plan; and
    (3) For sources seeking credit after January 12, 1979 for a stack 
height determined under Sec. 51.100(ii)(2) where the authority 
administering the State implementation plan requires the use of a field 
study or fluid model to verify GEP stack height, for sources seeking 
stack height credit after November 9, 1984 based on the aerodynamic 
influence of cooling towers, and for sources

[[Page 738]]

seeking stack height credit after December 31, 1970 based on the 
aerodynamic influence of structures not adequately represented by the 
equations in Sec. 51.100(ii)(2), a maximum ground-level concentration 
due in whole or part to downwash, wakes or eddy effects that is at least 
40 percent in excess of the maximum concentration experienced in the 
absence of such downwash, wakes, or eddy effects.
    (ll)-(mm) [Reserved]
    (nn) Intermittent control system (ICS) means a dispersion technique 
which varies the rate at which pollutants are emitted to the atmosphere 
according to meteorological conditions and/or ambient concentrations of 
the pollutant, in order to prevent ground-level concentrations in excess 
of applicable ambient air quality standards. Such a dispersion technique 
is an ICS whether used alone, used with other dispersion techniques, or 
used as a supplement to continuous emission controls (i.e., used as a 
supplemental control system).
    (oo) Particulate matter means any airborne finely divided solid or 
liquid material with an aerodynamic diameter smaller than 100 
micrometers.
    (pp) Particulate matter emissions means all finely divided solid or 
liquid material, other than uncombined water, emitted to the ambient air 
as measured by applicable reference methods, or an equivalent or 
alternative method, specified in this chapter, or by a test method 
specified in an approved State implementation plan.
    (qq) PM10 means particulate matter with an aerodynamic diameter 
less than or equal to a nominal 10 micrometers as measured by a 
reference method based on appendix J of part 50 of this chapter and 
designated in accordance with part 53 of this chapter or by an 
equivalent method designated in accordance with part 53 of this chapter.
    (rr) PM10 emissions means finely divided solid or liquid 
material, with an aerodynamic diameter less than or equal to a nominal 
10 micrometers emitted to the ambient air as measured by an applicable 
reference method, or an equivalent or alternative method, specified in 
this chapter or by a test method specified in an approved State 
implementation plan.
    (ss) Total suspended particulate means particulate matter as 
measured by the method described in appendix B of part 50 of this 
chapter.

[51 FR 40661, Nov. 7, 1986, as amended at 52 FR 24712, July 1, 1987; 57 
FR 3945, Feb. 3, 1992; 61 FR 4590, Feb. 7, 1996; 61 FR 16060, Apr. 11, 
1996; 61 FR 30162, June 14, 1996]



Sec. 51.101  Stipulations.

    Nothing in this part will be construed in any manner:
    (a) To encourage a State to prepare, adopt, or submit a plan which 
does not provide for the protection and enhancement of air quality so as 
to promote the public health and welfare and productive capacity.
    (b) To encourage a State to adopt any particular control strategy 
without taking into consideration the cost-effectiveness of such control 
strategy in relation to that of alternative control strategies.
    (c) To preclude a State from employing techniques other than those 
specified in this part for purposes of estimating air quality or 
demonstrating the adequacy of a control strategy, provided that such 
other techniques are shown to be adequate and appropriate for such 
purposes.
    (d) To encourage a State to prepare, adopt, or submit a plan without 
taking into consideration the social and economic impact of the control 
strategy set forth in such plan, including, but not limited to, impact 
on availability of fuels, energy, transportation, and employment.
    (e) To preclude a State from preparing, adopting, or submitting a 
plan which provides for attainment and maintenance of a national 
standard through the application of a control strategy not specifically 
identified or described in this part.
    (f) To preclude a State or political subdivision thereof from 
adopting or enforcing any emission limitations or other measures or 
combinations thereof to attain and maintain air quality better than that 
required by a national standard.
    (g) To encourage a State to adopt a control strategy uniformly 
applicable throughout a region unless there is no satisfactory 
alternative way of providing for attainment and maintenance of

[[Page 739]]

a national standard throughout such region.

[61 FR 30163, June 14, 1996]



Sec. 51.102  Public hearings.

    (a) Except as otherwise provided in paragraph (c) of this section, 
States must conduct one or more public hearings on the following prior 
to adoption and submission to EPA of:
    (1) Any plan or revision of it required by Sec. 51.104(a).
    (2) Any individual compliance schedule under (Sec. 51.260).
    (3) Any revision under Sec. 51.104(d).
    (b) Separate hearings may be held for plans to implement primary and 
secondary standards.
    (c) No hearing will be required for any change to an increment of 
progress in an approved individual compliance schedule unless such 
change is likely to cause the source to be unable to comply with the 
final compliance date in the schedule. The requirements of 
Sec. Sec. 51.104 and 51.105 will be applicable to such schedules, 
however.
    (d) Any hearing required by paragraph (a) of this section will be 
held only after reasonable notice, which will be considered to include, 
at least 30 days prior to the date of such hearing(s):
    (1) Notice given to the public by prominent advertisement in the 
area affected announcing the date(s), time(s), and place(s) of such 
hearing(s);
    (2) Availability of each proposed plan or revision for public 
inspection in at least one location in each region to which it will 
apply, and the availability of each compliance schedule for public 
inspection in at least one location in the region in which the affected 
source is located;
    (3) Notification to the Administrator (through the appropriate 
Regional Office);
    (4) Notification to each local air pollution control agency which 
will be significantly impacted by such plan, schedule or revision;
    (5) In the case of an interstate region, notification to any other 
States included, in whole or in part, in the regions which are 
significantly impacted by such plan or schedule or revision.
    (6) In the case of hearings on AQMA plans:
    (i) Notification to the chief executives of affected local 
governments, planning agencies, transportation agencies, environmental 
control agencies, economic development agencies, and any other affected 
States, and
    (ii) Public notice of alternative analysis and plan development 
procedures approved under Sec. 51.63.
    (e) The State must prepare and retain, for inspection by the 
Administrator upon request, a record of each hearing. The record must 
contain, as a minimum, a list of witnesses together with the text of 
each presentation.
    (f) The State must submit with the plan, revision, or schedule a 
certification that the hearing required by paragraph (a) of this section 
was held in accordance with the notice required by paragraph (d) of this 
section.
    (g) Upon written application by a State agency (through the 
appropriate Regional Office), the Administrator may approve State 
procedures for public hearings. The following criteria apply:
    (1) Procedures approved under this section shall be deemed to 
satisfy the requirement of this part regarding public hearings.
    (2) Procedures different from this part may be approved if they--
    (i) Ensure public participation in matters for which hearings are 
required; and
    (ii) Provide adequate public notification of the opportunity to 
participate.
    (3) The Administrator may impose any conditions on approval he or 
she deems necessary.



Sec. 51.103  Submission of plans, preliminary review of plans.

    (a) The State makes an official plan submission to EPA only when the 
submission conforms to the requirements of appendix V to this part, and 
the State delivers five copies of the plan to the appropriate Regional 
Office, with a letter giving notice of such action. The State must adopt 
the plan and the Governor or his designee must submit it to EPA as 
follows:
    (1) For any primary standard, or revision thereof, within 9 months 
after promulgation of such standard.
    (2) For any secondary standard, or revision thereof, within 9 months 
after

[[Page 740]]

promulgation of such secondary standard or by such later date prescribed 
or by such later date prescribed by the Administrator under subpart R of 
this part.
    (b) Upon request of a State, the Administrator will provide 
preliminary review of a plan or portion thereof submitted in advance of 
the date such plan is due. Such requests must be made in writing to the 
appropriate Regional Office and must be accompanied by five copies of 
the materials to be reviewed. Requests for preliminary review do not 
relieve a State of the responsibility of adopting and submitting plans 
in accordance with prescribed due dates.

[51 FR 40661, Nov. 7, 1986, as amended at 55 FR 5830, Feb. 16, 1990]



Sec. 51.104  Revisions.

    (a) States may revise the plan from time to time consistent with the 
requirements applicable to implementation plans under this part.
    (b) The States must submit any revision of any regulation or any 
compliance schedule under paragraph (c) of this section to the 
Administrator no later than 60 days after its adoption.
    (c) EPA will approve revisions only after applicable hearing 
requirements of Sec. 51.102 have been satisfied.
    (d) In order for a variance to be considered for approval as a 
revision to the State implementation plan, the State must submit it in 
accordance with the requirements of this section.

[51 FR 40661, Nov. 7, 1986, as amended at 61 FR 16060, Apr. 11, 1996]



Sec. 51.105  Approval of plans.

    Revisions of a plan, or any portion thereof, will not be considered 
part of an applicable plan until such revisions have been approved by 
the Administrator in accordance with this part.

[51 FR 40661, Nov. 7, 1986, as amended at 60 FR 33922, June 29, 1995]



                       Subpart G--Control Strategy

    Source: 51 FR 40665, Nov. 7, 1986, unless otherwise noted.



Sec. 51.110  Attainment and maintenance of national standards.

    (a) Each plan providing for the attainment of a primary or secondary 
standard must specify the projected attainment date.
    (b)-(f) [Reserved]
    (g) During developing of the plan, EPA encourages States to identify 
alternative control strategies, as well as the costs and benefits of 
each such alternative for attainment or maintenance of the national 
standard.

[51 FR 40661 Nov. 7, 1986 as amended at 61 FR 16060, Apr. 11, 1996; 61 
FR 30163, June 14, 1996]



Sec. 51.111  Description of control measures.

    Each plan must set forth a control strategy which includes the 
following:
    (a) A description of enforcement methods including, but not limited 
to:
    (1) Procedures for monitoring compliance with each of the selected 
control measures,
    (2) Procedures for handling violations, and
    (3) A designation of agency responsibility for enforcement of 
implementation.
    (b) [Reserved]

[51 FR 40665, Nov. 7, 1986, as amended at 60 FR 33922, June 29, 1995]



Sec. 51.112  Demonstration of adequacy.

    (a) Each plan must demonstrate that the measures, rules, and 
regulations contained in it are adequate to provide for the timely 
attainment and maintenance of the national standard that it implements.
    (1) The adequacy of a control strategy shall be demonstrated by 
means of applicable air quality models, data bases, and other 
requirements specified in the appendix W of this part (``Guideline on 
Air Quality Models (Revised)'' (1986), supplement A (1987), supplement B 
(1993) and supplement C (1995)). The Guideline and its supplements (EPA 
Publication No. 450/2-78-027R) are also for sale from the U.S. 
Department of Commerce, National Technical Information Service, 5825 
Port Royal Road, Springfield, VA 22161.
    (2) Where an air quality model specified in appendix W of this part 
(``Guideline on Air Quality Models (Revised)''

[[Page 741]]

(1986), supplement A (1987), supplement B (1993) and supplement C 
(1995)) is inappropriate, the model may be modified or another model 
substituted. Such a modification or substitution of a model may be made 
on a case-by-case basis or, where appropriate, on a generic basis for a 
specific state program. Written approval of the Administrator must be 
obtained for any modification or substitution. In addition, use of a 
modified or substituted model must be subject to notice and opportunity 
for public comment under procedures set forth in Sec. 51.102.
    (b) The demonstration must include the following:
    (1) A summary of the computations, assumptions, and judgments used 
to determine the degree of reduction of emissions (or reductions in the 
growth of emissions) that will result from the implementation of the 
control strategy.
    (2) A presentation of emission levels expected to result from 
implementation of each measure of the control strategy.
    (3) A presentation of the air quality levels expected to result from 
implementation of the overall control strategy presented either in 
tabular form or as an isopleth map showing expected maximum pollutant 
concentrations.
    (4) A description of the dispersion models used to project air 
quality and to evaluate control strategies.
    (5) For interstate regions, the analysis from each constituent State 
must, where practicable, be based upon the same regional emission 
inventory and air quality baseline.

[51 FR 40665, Nov. 7, 1986, as amended at 58 FR 38821, July 20, 1993; 60 
FR 40468, Aug. 9, 1995]
Sec. 51.113  [Reserved]



Sec. 51.114  Emissions data and projections.

    (a) Except for lead, each plan must contain a detailed inventory of 
emissions from point and area sources. Lead requirements are specified 
in Sec. 51.117. The inventory must be based upon measured emissions or, 
where measured emissions are not available, documented emission factors.
    (b) Each plan must contain a summary of emission levels projected to 
result from application of the new control strategy.
    (c) Each plan must identify the sources of the data used in the 
projection of emissions.



Sec. 51.115  Air quality data and projections.

    (a) Each plan must contain a summary of data showing existing air 
quality.
    (b) Each plan must:
    (1) Contain a summary of air quality concentrations expected to 
result from application of the control strategy, and
    (2) Identify and describe the dispersion model, other air quality 
model, or receptor model used.
    (c) Actual measurements of air quality must be used where available 
if made by methods specified in appendix C to part 58 of this chapter. 
Estimated air quality using appropriate modeling techniques may be used 
to supplement measurements.
    (d) For purposes of developing a control strategy, background 
concentration shall be taken into consideration with respect to 
particulate matter. As used in this subpart, background concentration is 
that portion of the measured ambient levels that cannot be reduced by 
controlling emissions from man-made sources.
    (e) In developing an ozone control strategy for a particular area, 
background ozone concentrations and ozone transported into an area must 
be considered. States may assume that the ozone standard will be 
attained in upwind areas.



Sec. 51.116  Data availability.

    (a) The State must retain all detailed data and calculations used in 
the preparation of each plan or each plan revision, and make them 
available for public inspection and submit them to the Administrator at 
his request.
    (b) The detailed data and calculations used in the preparation of 
plan revisions are not considered a part of the plan.
    (c) Each plan must provide for public availability of emission data 
reported

[[Page 742]]

by source owners or operators or otherwise obtained by a State or local 
agency. Such emission data must be correlated with applicable emission 
limitations or other measures. As used in this paragraph, correlated 
means presented in such a manner as to show the relationship between 
measured or estimated amounts of emissions and the amounts of such 
emissions allowable under the applicable emission limitations or other 
measures.



Sec. 51.117  Additional provisions for lead.

    In addition to other requirements in Sec. Sec. 51.100 through 51.116 
the following requirements apply to lead. To the extent they conflict, 
there requirements are controlling over those of the proceeding 
sections.
    (a) Control strategy demonstration. Each plan must contain a 
demonstration showing that the plan will attain and maintain the 
standard in the following areas:
    (1) Areas in the vicinity of the following point sources of lead: 
Primary lead smelters, Secondary lead smelters, Primary copper smelters, 
Lead gasoline additive plants, Lead-acid storage battery manufacturing 
plants that produce 2,000 or more batteries per day. Any other 
stationary source that actually emits 25 or more tons per year of lead 
or lead compounds measured as elemental lead.
    (2) Any other area that has lead air concentrations in excess of the 
national ambient air quality standard concentration for lead, measured 
since January 1, 1974.
    (b) Time period for demonstration of adequacy. The demonstration of 
adequacy of the control strategy required under Sec. 51.112 may cover a 
longer period if allowed by the appropriate EPA Regional Administrator.
    (c) Special modeling provisions. (1) For urbanized areas with 
measured lead concentrations in excess of 4.0 g/m\3\, quarterly 
mean measured since January 1, 1974, the plan must employ the modified 
rollback model for the demonstration of attainment as a minimum, but may 
use an atmospheric dispersion model if desired, consistent with 
requirements contained in Sec. 51.112(a). If a proportional model is 
used, the air quality data should be the same year as the emissions 
inventory required under the paragraph e.
    (2) For each point source listed in Sec. 51.117(a), that plan must 
employ an atmospheric dispersion model for demonstration of attainment, 
consistent with requirements contained in Sec. 51.112(a).
    (3) For each area in the vicinity of an air quality monitor that has 
recorded lead concentrations in excess of the lead national standard 
concentration, the plan must employ the modified rollback model as a 
minimum, but may use an atmospheric dispersion model if desired for the 
demonstration of attainment, consistent with requirements contained in 
Sec. 51.112(a).
    (d) Air quality data and projections. (1) Each State must submit to 
the appropriate EPA Regional Office with the plan, but not part of the 
plan, all lead air quality data measured since January 1, 1974. This 
requirement does not apply if the data has already been submitted.
    (2) The data must be submitted in accordance with the procedures and 
data forms specified in Chapter 3.4.0 of the ``AEROS User's Manual'' 
concerning storage and retrieval of aerometric data (SAROAD) except 
where the Regional Administrator waives this requirement.
    (3) If additional lead air quality data are desired to determine 
lead air concentrations in areas suspected of exceeding the lead 
national ambient air quality standard, the plan may include data from 
any previously collected filters from particulate matter high volume 
samplers. In determining the lead content of the filters for control 
strategy demonstration purposes, a State may use, in addition to the 
reference method, X-ray fluorescence or any other method approved by the 
Regional Administrator.
    (e) Emissions data. (1) The point source inventory on which the 
summary of the baseline lead emissions inventory is based must contain 
all sources that emit five or more tons of lead per year.
    (2) Each State must submit lead emissions data to the appropriate 
EPA Regional Office with the original plan. The submission must be made 
with the plan, but not as part of the plan, and

[[Page 743]]

must include emissions data and information related to point and area 
source emissions. The emission data and information should include the 
information identified in the Hazardous and Trace Emissions System 
(HATREMS) point source coding forms for all point sources and the area 
source coding forms for all sources that are not point sources, but need 
not necessarily be in the format of those forms.

[41 FR 18388, May 3, 1976, as amended at 58 FR 38822, July 20, 1993]



Sec. 51.118  Stack height provisions.

    (a) The plan must provide that the degree of emission limitation 
required of any source for control of any air pollutant must not be 
affected by so much of any source's stack height that exceeds good 
engineering practice or by any other dispersion technique, except as 
provided in Sec. 51.118(b). The plan must provide that before a State 
submits to EPA a new or revised emission limitation that is based on a 
good engineering practice stack height that exceeds the height allowed 
by Sec. 51.100(ii) (1) or (2), the State must notify the public of the 
availabilty of the demonstration study and must provide opportunity for 
a public hearing on it. This section does not require the plan to 
restrict, in any manner, the actual stack height of any source.
    (b) The provisions of Sec. 51.118(a) shall not apply to (1) stack 
heights in existence, or dispersion techniques implemented on or before 
December 31, 1970, except where pollutants are being emitted from such 
stacks or using such dispersion techniques by sources, as defined in 
section 111(a)(3) of the Clean Air Act, which were constructed, or 
reconstructed, or for which major modifications, as defined in 
Sec. Sec. 51.165(a)(1)(v)(A), 51.166(b)(2)(i) and 52.21(b)(2)(i), were 
carried out after December 31, 1970; or (2) coal-fired steam electric 
generating units subject to the provisions of section 118 of the Clean 
Air Act, which commenced operation before July 1, 1957, and whose stacks 
were construced under a construction contract awarded before February 8, 
1974.



Sec. 51.119  Intermittent control systems.

    (a) The use of an intermittent control system (ICS) may be taken 
into account in establishing an emission limitation for a pollutant 
under a State implementation plan, provided:
    (1) The ICS was implemented before December 31, 1970, according to 
the criteria specified in Sec. 51.119(b).
    (2) The extent to which the ICS is taken into account is limited to 
reflect emission levels and associated ambient pollutant concentrations 
that would result if the ICS was the same as it was before December 31, 
1970, and was operated as specified by the operating system of the ICS 
before December 31, 1970.
    (3) The plan allows the ICS to compensate only for emissions from a 
source for which the ICS was implemented before December 31, 1970, and, 
in the event the source has been modified, only to the extent the 
emissions correspond to the maximum capacity of the source before 
December 31, 1970. For purposes of this paragraph, a source for which 
the ICS was implemented is any particular structure or equipment the 
emissions from which were subject to the ICS operating procedures.
    (4) The plan requires the continued operation of any constant 
pollution control system which was in use before December 31, 1970, or 
the equivalent of that system.
    (5) The plan clearly defines the emission limits affected by the ICS 
and the manner in which the ICS is taken into account in establishing 
those limits.
    (6) The plan contains requirements for the operation and maintenance 
of the qualifying ICS which, together with the emission limitations and 
any other necessary requirements, will assure that the national ambient 
air quality standards and any applicable prevention of significant 
deterioration increments will be attained and maintained. These 
requirements shall include, but not necessarily be limited to, the 
following:
    (i) Requirements that a source owner or operator continuously 
operate and maintain the components of the ICS specified at 
Sec. 51.119(b)(3) (ii)-(iv) in a manner which assures that the ICS is

[[Page 744]]

at least as effective as it was before December 31, 1970. The air 
quality monitors and meteorological instrumentation specified at 
Sec. 51.119(b) may be operated by a local authority or other entity 
provided the source has ready access to the data from the monitors and 
instrumentation.
    (ii) Requirements which specify the circumstances under which, the 
extent to which, and the procedures through which, emissions shall be 
curtailed through the activation of ICS.
    (iii) Requirements for recordkeeping which require the owner or 
operator of the source to keep, for periods of at least 3 years, records 
of measured ambient air quality data, meteorological information 
acquired, and production data relating to those processes affected by 
the ICS.
    (iv) Requirements for reporting which require the owner or operator 
of the source to notify the State and EPA within 30 days of a NAAQS 
violation pertaining to the pollutant affected by the ICS.
    (7) Nothing in this paragraph affects the applicability of any new 
source review requirements or new source performance standards contained 
in the Clean Air Act or 40 CFR subchapter C. Nothing in this paragraph 
precludes a State from taking an ICS into account in establishing 
emission limitations to any extent less than permitted by this 
paragraph.
    (b) An intermittent control system (ICS) may be considered 
implemented for a pollutant before December 31, 1970, if the following 
criteria are met:
    (1) The ICS must have been established and operational with respect 
to that pollutant prior to December 31, 1970, and reductions in 
emissions of that pollutant must have occurred when warranted by 
meteorological and ambient monitoring data.
    (2) The ICS must have been designed and operated to meet an air 
quality objective for that pollutant such as an air quality level or 
standard.
    (3) The ICS must, at a minimum, have included the following 
components prior to December 31, 1970:
    (i) Air quality monitors. An array of sampling stations whose 
location and type were consistent with the air quality objective and 
operation of the system.
    (ii) Meteorological instrumentation. A meteorological data 
acquisition network (may be limited to a single station) which provided 
meteorological prediction capabilities sufficient to determine the need 
for, and degree of, emission curtailments necessary to achieve the air 
quality design objective.
    (iii) Operating system. A system of established procedures for 
determining the need for curtailments and for accomplishing such 
curtailments. Documentation of this system, as required by paragraph 
(n)(4), may consist of a compendium of memoranda or comparable material 
which define the criteria and procedures for curtailments and which 
identify the type and number of personnel authorized to initiate 
curtailments.
    (iv) Meteorologist. A person, schooled in meteorology, capable of 
interpreting data obtained from the meteorological network and qualified 
to forecast meteorological incidents and their effect on ambient air 
quality. Sources may have obtained meteorological services through a 
consultant. Services of such a consultant could include sufficient 
training of source personnel for certain operational procedures, but not 
for design, of the ICS.
    (4) Documentation sufficient to support the claim that the ICS met 
the criteria listed in this paragraph must be provided. Such 
documentation may include affidavits or other documentation.



Sec. 51.120  Requirements for state implementation plan revisions relating to new motor vehicles.

    (a) The EPA Administrator finds that the State Implementation Plans 
(SIPs) for the States of Connecticut, Delaware, Maine, Maryland, 
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode 
Island, and Vermont, the portion of Virginia included (as of November 
15, 1990) within the Consolidated Metropolitan Statistical Area that 
includes the District of Columbia, are substantially inadequate to 
comply with the requirements of section 110(a)(2)(D) of the Clean Air

[[Page 745]]

Act, 42 U.S.C. 7410(a)(2)(D), and to mitigate adequately the interstate 
pollutant transport described in section 184 of the Clean Air Act, 42 
U.S.C. 7511C, to the extent that they do not provide for emission 
reductions from new motor vehicles in the amount that would be achieved 
by the Ozone Transport Commission low emission vehicle (OTC LEV) program 
described in paragraph (c) of this section. This inadequacy will be 
deemed cured for each of the aforementioned states (including the 
District of Columbia) in the event that EPA determines through 
rulemaking that a national LEV-equivalent new motor vehicle emission 
control program is an acceptable alternative for OTC LEV and finds that 
such program is in effect. In the event no such finding is made, each of 
those states must adopt and submit to EPA by February 15, 1996 a SIP 
revision meeting the requirements of paragraph (b) of this section in 
order to cure the SIP inadequacy.
    (b) If a SIP revision is required under paragraph (a) of this 
section, it must contain the OTC LEV program described in paragraph (c) 
of this section unless the State adopts and submits to EPA, as a SIP 
revision, other emission-reduction measures sufficient to meet the 
requirements of paragraph (d) of this section. If a State adopts and 
submits to EPA, as a SIP revision, other emission-reduction measures 
pursuant to paragraph (d) of this section, then for purposes of 
determining whether such a SIP revision is complete within the meaning 
of section 110(k)(1) (and hence is eligible at least for consideration 
to be approved as satisfying paragraph (d) of this section), such a SIP 
revision must contain other adopted emission-reduction measures that, 
together with the identified potentially broadly practicable measures, 
achieve at least the minimum level of emission reductions that could 
potentially satisfy the requirements of paragraph (d) of this section. 
All such measures must be fully adopted and enforceable.
    (c) The OTC LEV program is a program adopted pursuant to section 177 
of the Clean Air Act.
    (1) The OTC LEV program shall contain the following elements:
    (i) It shall apply to all new 1999 and later model year passenger 
cars and light-duty trucks (0-5750 pounds loaded vehicle weight), as 
defined in Title 13, California Code of Regulations, section 1900(b)(11) 
and (b)(8), respectively, that are sold, imported, delivered, purchased, 
leased, rented, acquired, received, or registered in any area of the 
state that is in the Northeast Ozone Transport Region as of December 19, 
1994.
    (ii) All vehicles to which the OTC LEV program is applicable shall 
be required to have a certificate from the California Air Resources 
Board (CARB) affirming compliance with California standards.
    (iii) All vehicles to which this LEV program is applicable shall be 
required to meet the mass emission standards for Non-Methane Organic 
Gases (NMOG), Carbon Monoxide (CO), Oxides of Nitrogen (NOX), 
Formaldehyde (HCHO), and particulate matter (PM) as specified in Title 
13, California Code of Regulations, section 1960.1(f)(2) (and 
formaldehyde standards under section 1960.1(e)(2), as applicable) or as 
specified by California for certification as a TLEV (Transitional Low-
Emission Vehicle), LEV (Low-Emission Vehicle), ULEV (Ultra-Low-Emission 
Vehicle), or ZEV (Zero-Emission Vehicle) under section 1960.1(g)(1) (and 
section 1960.1(e)(3), for formaldehyde standards, as applicable).
    (iv) All manufacturers of vehicles subject to the OTC LEV program 
shall be required to meet the fleet average NMOG exhaust emission values 
for production and delivery for sale of their passenger cars, light-duty 
trucks 0-3750 pounds loaded vehicle weight, and light-duty trucks 3751-
5750 pounds loaded vehicle weight specified in Title 13, California Code 
of Regulations, section 1960.1(g)(2) for each model year beginning in 
1999. A state may determine not to implement the NMOG fleet average in 
the first model year of the program if the state begins implementation 
of the program late in a calendar year. However, all states must 
implement the NMOG fleet average in any full model years of the LEV 
program.
    (v) All manufacturers shall be allowed to average, bank and trade 
credits in the same manner as allowed

[[Page 746]]

under the program specified in Title 13, California Code of Regulations, 
section 1960.1(g)(2) footnote 7 for each model year beginning in 1999. 
States may account for credits banked by manufacturers in California or 
New York in years immediately preceding model year 1999, in a manner 
consistent with California banking and discounting procedures.
    (vi) The provisions for small volume manufacturers and intermediate 
volume manufacturers, as applied by Title 13, California Code of 
Regulations to California's LEV program, shall apply. Those 
manufacturers defined as small volume manufacturers and intermediate 
volume manufacturers in California under California's regulations shall 
be considered small volume manufacturers and intermediate volume 
manufacturers under this program.
    (vii) The provisions for hybrid electric vehicles (HEVs), as defined 
in Title 13 California Code of Regulations, section 1960.1, shall apply 
for purposes of calculating fleet average NMOG values.
    (viii) The provisions for fuel-flexible vehicles and dual-fuel 
vehicles specified in Title 13, California Code of Regulations, section 
1960.1(g)(1) footnote 4 shall apply.
    (ix) The provisions for reactivity adjustment factors, as defined by 
Title 13, California Code of Regulations, shall apply.
    (x) The aforementioned state OTC LEV standards shall be identical to 
the aforementioned California standards as such standards exist on 
December 19, 1994.
    (xi) All states' OTC LEV programs must contain any other provisions 
of California's LEV program specified in Title 13, California Code of 
Regulations necessary to comply with section 177 of the Clean Air Act.
    (2) States are not required to include the mandate for production of 
ZEVs specified in Title 13, California Code of Regulations, section 
1960.1(g)(2) footnote 9.
    (3) Except as specified elsewhere in this section, states may 
implement the OTC LEV program in any manner consistent with the Act that 
does not decrease the emissions reductions or jeopardize the 
effectiveness of the program.
    (d) The SIP revision that paragraph (b) of this section describes as 
an alternative to the OTC LEV program described in paragraph (c) of this 
section must contain a set of state-adopted measures that provides at 
least the following amount of emission reductions in time to bring 
serious ozone nonattainment areas into attainment by their 1999 
attainment date:
    (1) Reductions at least equal to the difference between:
    (i) The nitrogen oxides (NOX) emission reductions from the 1990 
statewide emissions inventory achievable through implementation of all 
of the Clean Air Act-mandated and potentially broadly practicable 
control measures throughout all portions of the state that are within 
the Northeast Ozone Transport Region created under section 184(a) of the 
Clean Air Act as of December 19, 1994; and
    (ii) A reduction in NOX emissions from the 1990 statewide 
inventory in such portions of the state of 50% or whatever greater 
reduction is necessary to prevent significant contribution to 
nonattainment in, or interference with maintenance by, any downwind 
state.
    (2) Reductions at least equal to the difference between:
    (i) The VOC emission reductions from the 1990 statewide emissions 
inventory achievable through implementation of all of the Clean Air Act-
mandated and potentially broadly practicable control measures in all 
portions of the State in, or near and upwind of, any of the serious or 
severe ozone nonattainment areas lying in the series of such areas 
running northeast from the Washington, DC, ozone nonattainment area to 
and including the Portsmouth, New Hampshire ozone nonattainment area; 
and
    (ii) A reduction in VOC emissions from the 1990 emissions inventory 
in all such areas of 50% or whatever greater reduction is necessary to 
prevent significant contribution to nonattainment in, or interference 
with maintenance by, any downwind state.

[60 FR 4736, Jan. 24, 1995]

[[Page 747]]



        Subpart H--Prevention of Air Pollution Emergency Episodes

    Source: 51 FR 40668, Nov. 7, 1986, unless otherwise noted.



Sec. 51.150  Classification of regions for episode plans.

    (a) This section continues the classification system for episode 
plans. Each region is classified separately with respect to each of the 
following pollutants: Sulfur oxides, particulate matter, carbon 
monoxide, nitrogen dioxide, and ozone.
    (b) Priority I Regions means any area with greater ambient 
concentrations than the following:
    (1) Sulfur dioxide--100 g/m3 (0.04 ppm) annual 
arithmetic mean; 455 g/m3 (0.17 ppm) 24-hour maximum.
    (2) Particulate matter--95 g/m3 annual geometric mean; 
325 g/m3 24-hour maximum.
    (3) Carbon monoxide--55 mg/m3 (48 ppm) 1-hour maximum; 14 mg/
m3 (12 ppm) 8-hour maximum.
    (4) Nitrogen dioxide--100 g/m3 (0.06 ppm) annual 
arithmetic mean.
    (5) Ozone--195 g/m3 (0.10 ppm) 1-hour maximum.
    (c) Priority IA Region means any area which is Priority I primarily 
because of emissions from a single point source.
    (d) Priority II Region means any area which is not a Priority I 
region and has ambient concentrations between the following:
    (1) Sulfur Dioxides--60-100 g/m3 (0.02-0.04 ppm) 
annual arithmetic mean; 260-445 g/m3 (0.10-0.17 ppm) 24-
hour maximum; any concentration above 1,300 g/m3 (0.50 
ppm) three-hour average.
    (2) Particulate matter--60-95 g/m3 annual geometric 
mean; 150-325 g/m3 24-hour maximum.
    (e) In the absence of adequate monitoring data, appropriate models 
must be used to classify an area under paragraph (b) of this section, 
consistent with the requirements contained in Sec. 51.112(a).
    (f) Areas which do not meet the above criteria are classified 
Priority III.

[51 FR 40668, Nov. 7, 1986, as amended at 58 FR 38822, July 20, 1993]



Sec. 51.151  Significant harm levels.

    Each plan for a Priority I region must include a contingency plan 
which must, as a mimimum, provide for taking action necessary to prevent 
ambient pollutant concentrations at any location in such region from 
reaching the following levels:

    Sulfur dioxide--2.620 g/m3 (1.0 ppm) 24-hour average.
    PM10--600 micrograms/cubic meter; 24-hour average.
    Carbon monoxide--57.5 mg/m3 (50 ppm) 8-hour average; 86.3 mg/
m3 (75 ppm) 4-hour average; 144 mg/m3 (125 ppm) 1-hour 
average.
    Ozone--1,200 ug/m3 (0.6 ppm) 2-hour average.
    Nitrogen dioxide--3.750 ug/m3 (2.0 ppm) 1-hour average; 938 ug/
m3 (0.5 ppm) 24-hour average.

[51 FR 40668, Nov. 7, 1986, as amended at 52 FR 24713, July 1, 1987]



Sec. 51.152  Contingency plans.

    (a) Each contingency plan must--
    (1) Specify two or more stages of episode criteria such as those set 
forth in appendix L to this part, or their equivalent;
    (2) Provide for public announcement whenever any episode stage has 
been determined to exist; and
    (3) Specify adequate emission control actions to be taken at each 
episode stage. (Examples of emission control actions are set forth in 
appendix L.)
    (b) Each contingency plan for a Priority I region must provide for 
the following:
    (1) Prompt acquisition of forecasts of atmospheric stagnation 
conditions and of updates of such forecasts as frequently as they are 
issued by the National Weather Service.
    (2) Inspection of sources to ascertain compliance with applicable 
emission control action requirements.
    (3) Communications procedures for transmitting status reports and 
orders as to emission control actions to be taken during an episode 
stage, including procedures for contact with public officials, major 
emission sources, public health, safety, and emergency agencies and news 
media.
    (c) Each plan for a Priority IA and II region must include a 
contingency plan that meets, as a minimum, the requirements of 
paragraphs (b)(1) and (b)(2) of

[[Page 748]]

this section. Areas classified Priority III do not need to develop 
episode plans.
    (d) Notwithstanding the requirements of paragraphs (b) and (c) of 
this section, the Administrator may, at his discretion--
    (1) Exempt from the requirements of this section those portions of 
Priority I, IA, or II regions which have been designated as attainment 
or unclassifiable for national primary and secondary standards under 
section 107 of the Act; or
    (2) Limit the requirements pertaining to emission control actions in 
Priority I regions to--
    (i) Urbanized areas as identified in the most recent United States 
Census, and
    (ii) Major emitting facilities, as defined by section 169(1) of the 
Act, outside the urbanized areas.



Sec. 51.153  Reevaluation of episode plans.

    (a) States should periodically reevaluate priority classifications 
of all Regions or portion of Regions within their borders. The 
reevaluation must consider the three most recent years of air quality 
data. If the evaluation indicates a change to a higher priority 
classification, appropriate changes in the episode plan must be made as 
expeditiously as practicable.
    (b) [Reserved]



           Subpart I--Review of New Sources and Modifications

    Source: 51 FR 40669, Nov. 7, 1986, unless otherwise noted.



Sec. 51.160  Legally enforceable procedures.

    (a) Each plan must set forth legally enforceable procedures that 
enable the State or local agency to determine whether the construction 
or modification of a facility, building, structure or installation, or 
combination of these will result in--
    (1) A violation of applicable portions of the control strategy; or
    (2) Interference with attainment or maintenance of a national 
standard in the State in which the proposed source (or modification) is 
located or in a neighboring State.
    (b) Such procedures must include means by which the State or local 
agency responsible for final decisionmaking on an application for 
approval to construct or modify will prevent such construction or 
modification if--
    (1) It will result in a violation of applicable portions of the 
control strategy; or
    (2) It will interfere with the attainment or maintenance of a 
national standard.
    (c) The procedures must provide for the submission, by the owner or 
operator of the building, facility, structure, or installation to be 
constructed or modified, of such information on--
    (1) The nature and amounts of emissions to be emitted by it or 
emitted by associated mobile sources;
    (2) The location, design, construction, and operation of such 
facility, building, structure, or installation as may be necessary to 
permit the State or local agency to make the determination referred to 
in paragraph (a) of this section.
    (d) The procedures must provide that approval of any construction or 
modification must not affect the responsibility to the owner or operator 
to comply with applicable portions of the control strategy.
    (e) The procedures must identify types and sizes of facilities, 
buildings, structures, or installations which will be subject to review 
under this section. The plan must discuss the basis for determining 
which facilities will be subject to review.
    (f) The procedures must discuss the air quality data and the 
dispersion or other air quality modeling used to meet the requirements 
of this subpart.
    (1) All applications of air quality modeling involved in this 
subpart shall be based on the applicable models, data bases, and other 
requirements specified in the appendix W of this part (``Guideline on 
Air Quality Models (Revised)'' (1986), supplement A (1987), supplement B 
(1993) and supplement C (1995)). The Guideline and its supplements (EPA 
Publication No. 450/2-78-027R) are also for sale from the U.S. 
Department of Commerce, National Technical Information Service, 5825 
Port Royal Road, Springfield, VA, 22161.

[[Page 749]]

    (2) Where an air quality model specified in the appendix W of this 
part (``Guideline on Air Quality Models (Revised)'' (1986), supplement A 
(1987), supplement B (1993) and supplement C (1995)) is inappropriate, 
the model may be modified or another model substituted. Such a 
modification or substitution of a model may be made on a case-by-case 
basis or, where appropriate, on a generic basis for a specific state 
program. Written approval of the Administrator must be obtained for any 
modification or substitution. In addition, use of a modified or 
substituted model must be subject to notice and opportunity for public 
comment under procedures set forth in Sec. 51.102.

[51 FR 40669, Nov. 7, 1986, as amended at 58 FR 38822, July 20, 1993; 60 
FR 40468, Aug. 9, 1995]



Sec. 51.161  Public availability of information.

    (a) The legally enforceable procedures in Sec. 51.160 must also 
require the State or local agency to provide opportunity for public 
comment on information submitted by owners and operators. The public 
information must include the agency's analysis of the effect of 
construction or modification on ambient air quality, including the 
agency's proposed approval or disapproval.
    (b) For purposes of paragraph (a) of this section, opportunity for 
public comment shall include, as a minimum--
    (1) Availability for public inspection in at least one location in 
the area affected of the information submitted by the owner or operator 
and of the State or local agency's analysis of the effect on air 
quality;
    (2) A 30-day period for submittal of public comment; and
    (3) A notice by prominent advertisement in the area affected of the 
location of the source information and analysis specified in paragraph 
(b)(1) of this section.
    (c) Where the 30-day comment period required in paragraph (b) of 
this section would conflict with existing requirements for acting on 
requests for permission to construct or modify, the State may submit for 
approval a comment period which is consistent with such existing 
requirements.
    (d) A copy of the notice required by paragraph (b) of this section 
must also be sent to the Administrator through the appropriate Regional 
Office, and to all other State and local air pollution control agencies 
having jurisdiction in the region in which such new or modified 
installation will be located. The notice also must be sent to any other 
agency in the region having responsibility for implementing the 
procedures required under this subpart. For lead, a copy of the notice 
is required for all point sources. The definition of point for lead is 
given in Sec. 51.100(k)(2).



Sec. 51.162  Identification of responsible agency.

    Each plan must identify the State or local agency which will be 
responsible for meeting the requirements of this subpart in each area of 
the State. Where such responsibility rests with an agency other than an 
air pollution control agency, such agency will consult with the 
appropriate State or local air pollution control agency in carrying out 
the provisions of this subpart

.

Sec. 51.163  Administrative procedures.

    The plan must include the administrative procedures, which will be 
followed in making the determination specified in paragraph (a) of 
Sec. 51.160.



Sec. 51.164  Stack height procedures.

    Such procedures must provide that the degree of emission limitation 
required of any source for control of any air pollutant must not be 
affected by so much of any source's stack height that exceeds good 
engineering practice or by any other dispersion technique, except as 
provided in Sec. 51.118(b). Such procedures must provide that before a 
State issues a permit to a source based on a good engineering practice 
stack height that exceeds the height allowed by Sec. 51.100(ii) (1) or 
(2), the State must notify the public of the availability of the 
demonstration study and must provide opportunity for public hearing on 
it. This section does not require such procedures to restrict in any 
manner the actual stack height of any source.


[[Page 750]]





Sec. 51.165  Permit requirements.

    (a) State Implementation Plan provisions satisfying sections 
172(b)(6) and 173 of the Act shall meet the following conditions:
    (1) All such plans shall use the specific definitions. Deviations 
from the following wording will be approved only if the state 
specifically demonstrates that the submitted definition is more 
stringent, or at least as stringent, in all respects as the 
corresponding definition below:
    (i) Stationary source means any building, structure, facility, or 
installation which emits or may emit any air pollutant subject to 
regulation under the Act.
    (ii) Building, structure, facility, or installation means all of the 
pollutant-emitting activities which belong to the same industrial 
grouping, are located on one or more contiguous or adjacent properties, 
and are under the control of the same person (or persons under common 
control) except the activities of any vessel. Pollutant-emitting 
activities shall be considered as part of the same industrial grouping 
if they belong to the same Major Group (i.e., which have the same two-
digit code) as described in the Standard Industrial Classification 
Manual, 1972, as amended by the 1977 Supplement (U.S. Government 
Printing Office stock numbers 4101-0065 and 003-005-00176-0, 
respectively).
    (iii) Potential to emit means the maximum capacity of a stationary 
source to emit a pollutant under its physical and operational design. 
Any physical or operational limitation on the capacity of the source to 
emit a pollutant, including air pollution control equipment and 
restrictions on hours of operation or on the type or amount of material 
combusted, stored, or processed, shall be treated as part of its design 
only if the limitation or the effect it would have on emissions is 
federally enforceable. Secondary emissions do not count in determining 
the potential to emit of a stationary source.
    (iv)(A) Major stationary source means:
    (1) Any stationary source of air pollutants which emits, or has the 
potential to emit 100 tons per year or more of any pollutant subject to 
regulation under the Act, or
    (2) Any physical change that would occur at a stationary source not 
qualifying under paragraph (a)(1)(iv)(A)(1) as a major stationary 
source, if the change would constitute a major stationary source by 
itself.
    (B) A major stationary source that is major for volatile organic 
compounds shall be considered major for ozone
    (C) The fugitive emissions of a stationary source shall not be 
included in determining for any of the purposes of this paragraph 
whether it is a major stationary source, unless the source belongs to 
one of the following categories of stationary sources:
    (1) Coal cleaning plants (with thermal dryers);
    (2) Kraft pulp mills;
    (3) Portland cement plants;
    (4) Primary zinc smelters;
    (5) Iron and steel mills;
    (6) Primary aluminum ore reduction plants;
    (7) Primary copper smelters;
    (8) Municipal incinerators capable of charging more than 250 tons of 
refuse per day;
    (9) Hydrofluoric, sulfuric, or nitric acid plants;
    (10) Petroleum refineries;
    (11) Lime plants;
    (12) Phosphate rock processing plants;
    (13) Coke oven batteries;
    (14) Sulfur recovery plants;
    (15) Carbon black plants (furnace process);
    (16) Primary lead smelters;
    (17) Fuel conversion plants;
    (18) Sintering plants;
    (19) Secondary metal production plants;
    (20) Chemical process plants;
    (21) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (22) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (23) Taconite ore processing plants;
    (24) Glass fiber processing plants;
    (25) Charcoal production plants;
    (26) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input; and
    (27) Any other stationary source category which, as of August 7, 
1980, is

[[Page 751]]

being regulated under section 111 or 112 of the Act.
    (v)(A) Major modification means any physical change in or change in 
the method of operation of a major stationary source that would result 
in a significant net emissions increase of any pollutant subject to 
regulation under the Act.
    (B) Any net emissions increase that is considered significant for 
volatile organic compounds shall be considered significant for ozone.
    (C) A physical change or change in the method of operation shall not 
include:
    (1) Routine maintenance, repair and replacement;
    (2) Use of an alternative fuel or raw material by reason of an order 
under sections 2 (a) and (b) of the Energy Supply and Environmental 
Coordination Act of 1974 (or any superseding legislation) or by reason 
of a natural gas curtailment plan pursuant to the Federal Power Act;
    (3) Use of an alternative fuel by reason of an order or rule section 
125 of the Act;
    (4) Use of an alternative fuel at a steam generating unit to the 
extent that the fuel is generated from municipal solid waste;
    (5) Use of an alternative fuel or raw material by a stationary 
source which;
    (i) The source was capable of accommodating before December 21, 
1976, unless such change would be prohibited under any federally 
enforceable permit condition which was established after December 12, 
1976 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 
40 CFR subpart I or Sec. 51.166, or
    (ii) The source is approved to use under any permit issued under 
regulations approved pursuant to this section;
    (6) An increase in the hours of operation or in the production rate, 
unless such change is prohibited under any federally enforceable permit 
condition which was established after December 21, 1976 pursuant to 40 
CFR 52.21 or regulations approved pursuant to 40 CFR part 51 subpart I 
or 40 CFR 51.166.
    (7) Any change in ownership at a stationary source.
    (8) The addition, replacement or use of a pollution control project 
at an existing electric utility steam generating unit, unless the 
reviewing authority determines that such addition, replacement, or use 
renders the unit less environmentally beneficial, or except:
    (i) When the reviewing authority has reason to believe that the 
pollution control project would result in a significant net increase in 
representative actual annual emissions of any criteria pollutant over 
levels used for that source in the most recent air quality impact 
analysis in the area conducted for the purpose of title I, if any, and
    (ii) The reviewing authority determines that the increase will cause 
or contribute to a violation of any national ambient air quality 
standard or PSD increment, or visibility limitation.
    (9) The installation, operation, cessation, or removal of a 
temporary clean coal technology demonstration project, provided that the 
project complies with:
    (i) The State Implementation Plan for the State in which the project 
is located, and
    (ii) Other requirements necessary to attain and maintain the 
national ambient air quality standard during the project and after it is 
terminated.
    (vi)(A) Net emissions increase means the amount by which the sum of 
the following exceeds zero:
    (1) Any increase in actual emissions from a particular physical 
change or change in the method of operation at a stationary source; and
    (2) Any other increases and decreases in actual emissions at the 
source that are contemporaneous with the particular change and are 
otherwise creditable.
    (B) An increase or decrease in actual emissions is contemporaneous 
with the increase from the particular change only if it occurs before 
the date that the increase from the particular change occurs;
    (C) An increase or decrease in actual emissions is creditable only 
if:
    (1) It occurs within a reasonable period to be specified by the 
reviewing authority; and
    (2) The reviewing authority has not relied on it in issuing a permit 
for the

[[Page 752]]

source under regulations approved pursuant to this section which permit 
is in effect when the increase in actual emissions from the particular 
change occurs.
    (D) An increase in actual emissions is creditable only to the extent 
that the new level of actual emissions exceeds the old level.
    (E) A decrease in actual emissions is creditable only to the extent 
that:
    (1) The old level of actual emission or the old level of allowable 
emissions whichever is lower, exceeds the new level of actual emissions;
    (2) It is federally enforceable at and after the time that actual 
construction on the particular change begins; and
    (3) The reviewing authority has not relied on it in issuing any 
permit under regulations approved pursuant to 40 CFR part 51 subpart I 
or the state has not relied on it in demonstrating attainment or 
reasonable further progress;
    (4) It has approximately the same qualitative significance for 
public health and welfare as that attributed to the increase from the 
particular change.
    (F) An increase that results from a physical change at a source 
occurs when the emissions unit on which construction occurred becomes 
operational and begins to emit a particular pollutant. Any replacement 
unit that requires shakedown becomes operational only after a reasonable 
shakedown period, not to exceed 180 days.
    (vii) Emissions unit means any part of a stationary source which 
emits or would have the potential to emit any pollutant subject to 
regulation under the the Act.
    (viii) Secondary emissons means emissions which would occur as a 
result of the construction or operation of a major stationary source or 
major modification, but do not come from the major stationary source or 
major modification itself. For the purpose of this section, secondary 
emissions must be specific, well defined, quantifiable, and impact the 
same general area as the stationary source or modification which causes 
the secondary emissions. Secondary emissions include emissions from any 
offsite support facility which would not be constructed or increase its 
emissions except as a result of the construction of operation of the 
major stationary source of major modification. Secondary emissions do 
not include any emissions which come directly from a mobile source such 
as emissions from the tailpipe of a motor vehicle, from a train, or from 
a vessel.
    (ix) Fugitive emissions means those emissions which could not 
reasonably pass through a stack, chimney, vent or other functionally 
equivalent opening.
    (x) Significant means, in reference to a net emissions increase pr 
the potential of a source to emit any of the following pollutions, as 
rate of emissions that would equal or exceed any of the following rates:

                         Pollutant Emission Rate

Carbon monoxide: 100 tons per year (tpy)
Nitrogen oxides: 40 tpy
Sulfur dioxide: 40 tpy
Ozone: 40 tpy of volatile organic compounds
Lead: 0.6 tpy

    (xi) Allowable emissions means the emissions rate of a stationary 
source calculated using the maximum rated capacity of the source (unless 
the source is subject to federally enforceable limits which restrict the 
operating rate, or hours of operation, or both) and the most stringent 
of the following:
    (A) The applicable standards set forth in 40 CFR part 60 or 61;
    (B) Any applicable State Implementation Plan emissions limitation 
including those with a future compliance date; or
    (C) The emissions rate specified as a federally enforceable permit 
condition, including those with a future compliance date.
    (xii)(A) Actual emissions means the actual rate of emissions of a 
pollutant from an emissions unit as determined in accordance with 
paragraphs (a)(1)(xii) (B) through (D) of this section.
    (B) In general, actual emissions as of a particular date shall equal 
the average rate, in tons per year, at which the unit actually emitted 
the pollutant during a two-year period which precedes the particular 
date and which is representative of normal source operation. The 
reviewing authority shall allow the use of a different time period

[[Page 753]]

upon a determination that it is more representative of normal source 
operation. Actual emissions shall be calculated using the unit's actual 
operating hours, production rates, and types of materials processed, 
stored, or combusted during the selected time period.
    (C) The reviewing authority may presume that the source-specific 
allowable emissions for the unit are equivalent to the actual emissions 
of the unit.
    (D) For any emissions unit (other than an electric utility steam 
generating unit specified in paragraph (a)(1)(xii)(E) of this section) 
which has not begun normal operations on the particular date, actual 
emissions shall equal the potential to emit of the unit on that date.
    (E) For an electric utility steam generating unit (other than a new 
unit or the replacement of an existing unit) actual emissions of the 
unit following the physical or operational change shall equal the 
representative actual annual emissions of the unit, provided the source 
owner or operator maintains and submits to the reviewing authority, on 
an annual basis for a period of 5 years from the date the unit resumes 
regular operation, information demonstrating that the physical or 
operational change did not result in an emissions increase. A longer 
period, not to exceed 10 years, may be required by the reviewing 
authority if it determines such a period to be more representative of 
normal source post-change operations.
    (xiii) Lowest achievable emission rate means, for any source, the 
more stringent rate of emissions based on the following:
    (A) The most stringent emissions limitation which is contained in 
the implementation plan of any State for such class or category of 
stationary source, unless the owner or operator of the proposed 
stationary source demonstrates that such limitations are not achievable; 
or
    (B) The most stringent emissions limitation which is achieved in 
practice by such class or category of stationary sources. This 
limitation, when applied to a modification, means the lowest achievable 
emissions rate for the new or modified emissions units within or 
stationary source. In no event shall the application of the term permit 
a proposed new or modified stationary source to emit any pollutant in 
excess of the amount allowable under an applicable new source standard 
of performance.
    (xiv) Federally enforceable means all limitations and conditions 
which are enforceable by the Administrator, including those requirements 
developed pursuant to 40 CFR parts 60 and 61, requirements within any 
applicable State implementation plan, any permit requirements 
established pursuant to 40 CFR 52.21 or under regulations approved 
pursuant to 40 CFR part 51, subpart I, including operating permits 
issued under an EPA-approved program that is incorporated into the State 
implementation plan and expressly requires adherence to any permit 
issued under such program.
    (xv) Begin actual construction means in general, initiation of 
physical on-site construction activities on an emissions unit which are 
of a permanent nature. Such activities include, but are not limited to, 
installation of building supports and foundations, laying of underground 
pipework, and construction of permanent storage structures. With respect 
to a change in method of operating this term refers to those on-site 
activities other than preparatory activities which mark the initiation 
of the change.
    (xvi) Commence as applied to construction of a major stationary 
source or major modification means that the owner or operator has all 
necessary preconstruction approvals or permits and either has:
    (A) Begun, or caused to begin, a continuous program of actual on-
site construction of the source, to be completed within a reasonable 
time; or
    (B) Entered into binding agreements or contractual obligations, 
which cannot be canceled or modified without substantial loss to the 
owner or operator, to undertake a program of actual construction of the 
source to be completed within a reasonable time.
    (xvii) Necessary preconstruction approvals or permits means those 
Federal air quality control laws and regulations and those air quality 
control laws and regulations which are part of the applicable State 
Implementation Plan.

[[Page 754]]

    (xviii) Construction means any physical change or change in the 
method of operation (including fabrication, erection, installation, 
demolition, or modification of an emissions unit) which would result in 
a change in actual emissions.
    (xix)Volatile organic compounds (VOC) is as defined in 
Sec. 51.100(s) of this part.
    (xx) Electric utility steam generating unit means any steam electric 
generating unit that is constructed for the purpose of supplying more 
than one-third of its potential electric output capacity and more than 
25 MW electrical output to any utility power distribution system for 
sale. Any steam supplied to a steam distribution system for the purpose 
of providing steam to a steam-electric generator that would produce 
electrical energy for sale is also considered in determining the 
electrical energy output capacity of the affected facility.
    (xxi) Representative actual annual emissions means the average rate, 
in tons per year, at which the source is projected to emit a pollutant 
for the two-year period after a physical change or change in the method 
of operation of a unit, (or a different consecutive two-year period 
within 10 years after that change, where the reviewing authority 
determines that such period is more representative of source 
operations), considering the effect any such change will have on 
increasing or decreasing the hourly emissions rate and on projected 
capacity utilization. In projecting future emissions the reviewing 
authority shall:
    (A) Consider all relevant information, including but not limited to, 
historical operational data, the company's own representations, filings 
with the State or Federal regulatory authorities, and compliance plans 
under title IV of the Clean Air Act; and
    (B) Exclude, in calculating any increase in emissions that results 
from the particular physical change or change in the method of operation 
at an electric utility steam generating unit, that portion of the unit's 
emissions following the change that could have been accommodated during 
the representative baseline period and is attributable to an increase in 
projected capacity utilization at the unit that is unrelated to the 
particular change, including any increased utilization due to the rate 
of electricity demand growth for the utility system as a whole.
    (xxii) Temporary clean coal technology demonstration project means a 
clean coal technology demonstration project that is operated for a 
period of 5 years or less, and which complies with the State 
Implementation Plan for the State in which the project is located and 
other requirements necessary to attain and maintain the national ambient 
air quality standards during the project and after it is terminated.
    (xxiii) Clean coal technology means any technology, including 
technologies applied at the precombustion, combustion, or post 
combustion stage, at a new or existing facility which will achieve 
significant reductions in air emissions of sulfur dioxide or oxides of 
nitrogen associated with the utilization of coal in the generation of 
electricity, or process steam which was not in widespread use as of 
November 15, 1990.
    (xxiv) Clean coal technology demonstration project means a project 
using funds appropriated under the heading ``Department of Energy-Clean 
Coal Technology,'' up to a total amount of $2,500,000,000 for commercial 
demonstration of clean coal technology, or similar projects funded 
through appropriations for the Environmental Protection Agency. The 
Federal contribution for a qualifying project shall be at least 20 
percent of the total cost of the demonstration project.
    (xxv) Pollution control project means any activity or project at an 
existing electric utility steam generating unit for purposes of reducing 
emissions from such unit. Such activities or projects are limited to:
    (A) The installation of conventional or innovative pollution control 
technology, including but not limited to advanced flue gas 
desulfurization, sorbent injection for sulfur dioxide and nitrogen 
oxides controls and electrostatic precipitators;
    (B) An activity or project to accommodate switching to a fuel which 
is less polluting than the fuel used prior to the activity or project, 
including, but not limited to natural gas or coal

[[Page 755]]

reburning, or the cofiring of natural gas and other fuels for the 
purpose of controlling emissions;
    (C) A permanent clean coal technology demonstration project 
conducted under title II, sec. 101(d) of the Further Continuing 
Appropriations Act of 1985 (sec. 5903(d) of title 42 of the United 
States Code), or subsequent appropriations, up to a total amount of 
$2,500,000,000 for commercial demonstration of clean coal technology, or 
similar projects funded through appropriations for the Environmental 
Protection Agency; or
    (D) A permanent clean coal technology demonstration project that 
constitutes a repowering project.
    (2) Each plan shall adopt a preconstruction review program to 
satisfy the requirements of sections 172(b)(6) and 173 of the Act for 
any area designated nonattainment for any national ambient air quality 
standard under 40 CFR 81.300 et seq. Such a program shall apply to any 
new major stationary source or major modification that is major for the 
pollutant for which the area is designated nonattainment, if the 
stationary source or modification would locate anywhere in the 
designated nonattainment area.
    (3)(i) Each plan shall provide that for sources and modifications 
subject to any preconstruction review program adopted pursuant to this 
subsection the baseline for determining credit for emissions reductions 
is the emissions limit under the applicable State Implementation Plan in 
effect at the time the application to construct is filed, except that 
the offset baseline shall be the actual emissions of the source from 
which offset credit is obtained where;
    (A) The demonstration of reasonable further progress and attainment 
of ambient air quality standards is based upon the actual emissions of 
sources located within a designated nonattainment area for which the 
preconstruction review program was adopted; or
    (B) The applicable State Implementation Plan does not contain an 
emissions limitation for that source or source category.
    (ii) The plan shall further provide that:
    (A) Where the emissions limit under the applicable State 
Implementation Plan allows greater emissions than the potential to emit 
of the source, emissions offset credit will be allowed only for control 
below this potential;
    (B) For an existing fuel combustion source, credit shall be based on 
the allowable emissions under the applicable State Implementation Plan 
for the type of fuel being burned at the time the application to 
construct is filed. If the existing source commits to switch to a 
cleaner fuel at some future date, emissions offset credit based on the 
allowable (or actual) emissions for the fuels involved is not 
acceptable, unless the permit is conditioned to require the use of a 
specified alternative control measure which would achieve the same 
degree of emissions reduction should the source switch back to a dirtier 
fuel at some later date. The reviewing authority should ensure that 
adequate long-term supplies of the new fuel are available before 
granting emissions offset credit for fuel switches,
    (C)(1) Emissions reductions achieved by shutting down an existing 
source or curtailing production or operating hours below baseline levels 
may be generally credited if such reductions are permanent, 
quantifiable, and federally enforceable, and if the area has an EPA-
approved attainment plan. In addition, the shutdown or curtailment is 
creditable only if it occurred on or after the date specified for this 
purpose in the plan, and if such date is on or after the date of the 
most recent emissions inventory used in the plan's demonstration of 
attainment. Where the plan does not specify a cutoff date for shutdown 
credits, the date of the most recent emissions inventory or attainment 
demonstration, as the case may be, shall apply. However, in no event may 
credit be given for shutdowns which occurred prior to August 7, 1977. 
For purposes of this paragraph, a permitting authority may choose to 
consider a prior shutdown or curtailment to have occurred after the date 
of its most recent emissions inventory, if the inventory explicitly 
includes as current existing emissions the emissions from such 
previously shutdown or curtailed sources.

[[Page 756]]

    (2) Such reductions may be credited in the absence of an approved 
attainment demonstration only if the shutdown or curtailment occurred on 
or after the date the new source permit application is filed, or, if the 
applicant can establish that the proposed new source is a replacement 
for the shutdown or curtailed source, and the cutoff date provisions of 
Sec. 51.165(a)(3)(ii)(C)(1) are observed.
    (D) No emissions credit may be allowed for replacing one hydrocarbon 
compound with another of lesser reactivity, except for those compounds 
listed in Table 1 of EPA's ``Recommended Policy on Control of Volatile 
Organic Compounds'' (42 FR 35314, July 8, 1977; (This document is also 
available from Mr. Ted Creekmore, Office of Air Quality Planning and 
Standards, (MD-15) Research Triangle Park, NC 27711.))
    (E) All emission reductions claimed as offset credit shall be 
federally enforceable;
    (F) Procedures relating to the permissible location of offsetting 
emissions shall be followed which are at least as stringent as those set 
out in 40 CFR part 51 appendix S section IV.D.
    (G) Credit for an emissions reduction can be claimed to the extent 
that the reviewing authority has not relied on it in issuing any permit 
under regulations approved pursuant to 40 CFR part 51 subpart I or the 
State has not relied on it in demonstration attainment or reasonable 
further progress.
    (4) Each plan may provide that the provisions of this paragraph do 
not apply to a source or modification that would be a major stationary 
source or major modification only if fugitive emission to the extent 
quantifiable are considered in calculating the potential to emit of the 
stationary source or modification and the source does not belong to any 
of the following categories:
    (i) Coal cleaning plants (with thermal dryers);
    (ii) Kraft pulp mills;
    (iii) Portland cement plants;
    (iv) Primary zinc smelters;
    (v) Iron and steel mills;
    (vi) Primary aluminum ore reduction plants;
    (vii) Primary copper smelters;
    (viii) Municipal incinerators capable of charging more than 250 tons 
of refuse per day;
    (ix) Hydrofluoric, sulfuric, or citric acid plants;
    (x) Petroleum refineries;
    (xi) Lime plants;
    (xii) Phosphate rock processing plants;
    (xiii) Coke oven batteries;
    (xiv) Sulfur recovery plants;
    (xv) Carbon black plants (furnace process);
    (xvi) Primary lead smelters;
    (xvii) Fuel conversion plants;
    (xviii) Sintering plants;
    (xix) Secondary metal production plants;
    (xx) Chemical process plants;
    (xxi) Fossil-fuel boilers (or combination thereof) totaling more 
than 250 million British thermal units per hour heat input;
    (xxii) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (xxiii) Taconite ore processing plants;
    (xxiv) Glass fiber processing plants;
    (xxv) Charcoal production plants;
    (xxvi) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (xxvii) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
    (5) Each plan shall include enforceable procedures to provide that:
    (i) Approval to construct shall not relieve any owner or operator of 
the responsibility to comply fully with applicable provision of the plan 
and any other requirements under local, State or Federal law.
    (ii) At such time that a particular source or modification becomes a 
major stationary source or major modification solely by virtue of a 
relaxation in any enforcement limitation which was established after 
August 7, 1980, on the capacity of the source or modification otherwise 
to emit a pollutant, such as a restriction on hours of operation, then 
the requirements of regulations approved pursuant to this section shall 
apply to the source or modification as though construction

[[Page 757]]

had not yet commenced on the source or modification;
    (b)(1) Each plan shall include a preconstruction review permit 
program or its equivalent to satisfy the requirements of section 
110(a)(2)(D)(i) of the Act for any new major stationary source or major 
modification as defined in paragraphs (a)(1) (iv) and (v) of this 
section. Such a program shall apply to any such source or modification 
that would locate in any area designated as attainment or unclassifiable 
for any national ambient air quality standard pursuant to section 107 of 
the Act, when it would cause or contribute to a violation of any 
national ambient air quality standard.
    (2) A major source or major modification will be considered to cause 
or contribute to a violation of a national ambient air quality standard 
when such source or modification would, at a minimum, exceed the 
following significance levels at any locality that does not or would not 
meet the applicable national standard:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                Averaging time (hours)                                  
                                             Annual         --------------------------------------------------------------------------------------------
                                                                       24                      8                      3                      1          
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pollutant                                                                                                                                               
  SO2..............................  1.0 g/m\3\...  5 g/m\3\.....    ...................  25 g/m\3\...                       
  PM10.............................  1.0 g/m\3\...  5 g/m\3\.....    ...................    ...................                       
  NO2..............................  1.0 g/m\3\...    ....................    ...................    ...................                       
  CO...............................    ....................    ....................  0.5 mg/m\3\..........    ...................  2 mg/m\3\            
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (3) Such a program may include a provision which allows a proposed 
major source or major modification subject to paragraph (b) of this 
section to reduce the impact of its emissions upon air quality by 
obtaining sufficient emission reductions to, at a minimum, compensate 
for its adverse ambient impact where the major source or major 
modification would otherwise cause or contribute to a violation of any 
national ambient air quality standard. The plan shall require that, in 
the absence of such emission reductions, the State or local agency shall 
deny the proposed construction.
    (4) The requirements of paragraph (b) of this section shall not 
apply to a major stationary source or major modification with respect to 
a particular pollutant if the owner or operator demonstrates that, as to 
that pollutant, the source or modification is located in an area 
designated as nonattainment pursuant to section 107 of the Act.

[51 FR 40669, Nov. 7, 1986, as amended at 52 FR 24713, July 1, 1987; 52 
FR 29386, Aug 7, 1987; 54 FR 27285, 27299 June 28, 1989; 57 FR 3946, 
Feb. 3, 1992; 57 FR 32334, July 21, 1992]



Sec. 51.166  Prevention of significant deterioration of air quality.

    (a)(1) Plan requirements. In accordance with the policy of section 
101(b)(1) of the act and the purposes of section 160 of the Act, each 
applicable State implementation plan shall contain emission limitations 
and such other measures as may be necessary to prevent significant 
deterioration of air quality.
    (2) Plan revisions. If a State Implementation Plan revision would 
result in increased air quality deterioration over any baseline 
concentration, the plan revision shall include a demonstration that it 
will not cause or contribute to a violation of the applicable 
increment(s). If a plan revision proposing less restrictive requirements 
was submitted after August 7, 1977 but on or before any applicable 
baseline date and was pending action by the Administrator on that date, 
no such demonstration is necessary with respect to the area for which a 
baseline date would be established before final action is taken on the 
plan revision. Instead, the assessment described in paragraph (a)(4) of 
this section, shall review the expected impact to the applicable 
increment(s).
    (3) Required plan revision. If the State or the Administrator 
determines that a plan is substantially inadequate to prevent 
significant deterioration or that an applicable increment is being 
violated, the plan shall be revised to correct the inadequacy or the 
violation. The plan shall be revised within 60 days

[[Page 758]]

of such a finding by a State or within 60 days following notification by 
the Administrator, or by such later date as prescribed by the 
Administrator after consultation with the State.
    (4) Plan assessment. The State shall review the adequacy of a plan 
on a periodic basis and within 60 days of such time as information 
becomes available that an applicable increment is being violated.
    (5) Public participation. Any State action taken under this 
paragraph shall be subject to the opportunity for public hearing in 
accordance with procedures equivalent to those established in 
Sec. 51.102.
    (6) Amendments. (i) Any State required to revise its implementation 
plan by reason of an amendment to this section, including any amendment 
adopted simultaneously with this paragraph, shall adopt and submit such 
plan revision to the Administrator for approval within 9 months after 
the effective date of the new amendments.
    (ii) Any revision to an implementation plan that would amend the 
provisions for the prevention of significant air quality deterioration 
in the plan shall specify when and as to what sources and modifications 
the revision is to take effect.
    (iii) Any revision to an implementation plan that an amendment to 
this section required shall take effect no later than the date of its 
approval and may operate prospectively.
    (b) Definitions. All state plans shall use the following definitions 
for the purposes of this section. Deviations from the following wording 
will be approved only if the state specifically demonstrates that the 
submitted definition is more stringent, or at least as stringent, in all 
respects as the corresponding definitions below:
    (1)(i) Major stationary source means:
    (a) Any of the following stationary sources of air pollutants which 
emits, or has the potential to emit, 100 tons per year or more of any 
pollutant subject to regulation under the Act: Fossil fuel-fired steam 
electric plants of more than 250 million British thermal units per hour 
heat input, coal cleaning plants (with thermal dryers), kraft pulp 
mills, portland cement plants, primary zinc smelters, iron and steel 
mill plants, primary aluminum ore reduction plants, primary copper 
smelters, municipal incinerators capable of charging more than 250 tons 
of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, 
petroleum refineries, lime plants, phosphate rock processing plants, 
coke oven batteries, sulfur recovery plants, carbon black plants 
(furnace process), primary lead smelters, fuel conversion plants, 
sintering plants, secondary metal production plants, chemical process 
plants, fossil fuel boilers (or combinations thereof) totaling more than 
250 million British thermal units per hour heat input, petroleum storage 
and transfer units with a total storage capacity exceeding 300,000 
barrels, taconite ore processing plants, glass fiber processing plants, 
and charcoal production plants;
    (b) Notwithstanding the stationary source size specified in 
paragraph (b)(1)(i)(a) of this section, any stationary source which 
emits, or has the potential to emit, 250 tons per year or more of any 
air pollutant subject to regulation under the Act; or
    (c) Any physical change that would occur at a stationary source not 
otherwise qualifying under paragraph (b)(1) of this section, as a major 
stationary source if the change would constitute a major stationary 
source by itself.
    (ii) A major source that is major for volatile organic compounds 
shall be considered major for ozone.
    (iii) The fugitive emissions of a stationary source shall not be 
included in determining for any of the purposes of this section whether 
it is a major stationary source, unless the source belongs to one of the 
following categories of stationary sources:
    (a) Coal cleaning plants (with thermal dryers);
    (b) Kraft pulp mills;
    (c) Portland cement plants;
    (d) Primary zinc smelters;
    (e) Iron and steel mills;
    (f) Primary aluminum ore reduction plants;
    (g) Primary copper smelters;
    (h) Municipal incinerators capable of charging more than 250 tons of 
refuse per day;
    (i) Hydrofluoric, sulfuric, or nitric acid plants;
    (j) Petroleum refineries;

[[Page 759]]

    (k) Lime plants;
    (l) Phosphate rock processing plants;
    (m) Coke oven batteries;
    (n) Sulfur recovery plants;
    (o) Carbon black plants (furnace process);
    (p) Primary lead smelters;
    (q) Fuel conversion plants;
    (r) Sintering plants;
    (s) Secondary metal production plants;
    (t) Chemical process plants;
    (u) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (v) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (w) Taconite ore processing plants;
    (x) Glass fiber processing plants;
    (y) Charcoal production plants;
    (z) Fossil fuel-fired steam electric plants of more that 250 million 
British thermal units per hour heat input;
    (aa) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
    (2)(i) Major modification means any physical change in or change in 
the method of operation of a major stationary source that would result 
in a significant net emissions increase of any pollutant subject to 
regulation under the Act.
    (ii) Any net emissions increase that is significant for volatile 
organic compounds shall be considered significant for ozone.
    (iii) A physical change or change in the method of operation shall 
not include:
    (a) Routine maintenance, repair, and replacement;
    (b) Use of an alternative fuel or raw material by reason of any 
order under section 2 (a) and (b) of the Energy Supply and Environmental 
Coordination Act of 1974 (or any superseding legislation) or by reason 
of a natural gas curtailment plan pursuant to the Federal Power Act;
    (c) Use of an alternative fuel by reason of an order or rule under 
section 125 of the Act;
    (d) Use of an alternative fuel at a steam generating unit to the 
extent that the fuel is generated from municipal solid waste;
    (e) Use of an alternative fuel or raw material by a stationary 
source which:
    (1) The source was capable of accommodating before January 6, 1975, 
unless such change would be prohibited under any federally enforceable 
permit condition which was established after January 6, 1975 pursuant to 
40 CFR 52.21 or under regulations approved pursuant to 40 CFR subpart I 
or Sec. 51.166; or
    (2) The source is approved to use under any permit issued under 40 
CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166;
    (f) An increase in the hours of operation or in the production rate, 
unless such change would be prohibited under any federally enforceable 
permit condition which was established after January 6, 1975, pursuant 
to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR subpart 
I or Sec. 51.166.
    (g) Any change in ownership at a stationary source.
    (h) The addition, replacement or use of a pollution control project 
at an existing electric utility steam generating unit, unless the 
Administrator determines that such addition, replacement, or use renders 
the unit less environmentally beneficial, or except:
    (1) When the reviewing authority has reason to believe that the 
pollution control project would result in a significant net increase in 
representative actual annual emissions of any criteria pollutant over 
levels used for that source in the most recent air quality impact 
analysis in the area conducted for the purpose of title I, if any, and
    (2) The reviewing authority determines that the increase will cause 
or contribute to a violation of any national ambient air quality 
standard or PSD increment, or visibility limitation.
    (i) The installation, operation, cessation, or removal of a 
temporary clean coal technology demonstration project, provided that the 
project complies with:
    (1) The State implementation plan for the State in which the project 
is located; and

[[Page 760]]

    (2) Other requirements necessary to attain and maintain the national 
ambient air quality standards during the project and after it is 
terminated.
    (j) The installation or operation of a permanent clean coal 
technology demonstration project that constitutes repowering, provided 
that the project does not result in an increase in the potential to emit 
of any regulated pollutant emitted by the unit. This exemption shall 
apply on a pollutant-by-pollutant basis.
    (k) The reactivation of a very clean coal-fired electric utility 
steam generating unit.
    (3)(i) Net emissions increase means the amount by which the sum of 
the following exceeds zero:
    (a) Any increase in actual emissions from a particular physical 
change or change in the method of operation at a stationary source; and
    (b) Any other increases and decreases in actual emissions at the 
source that are contemporaneous with the particular change and are 
otherwise creditable.
    (ii) An increase or decrease in actual emissions is contemporaneous 
with the increase from the particular change only if it occurs within a 
reasonable period (to be specified by the state) before the date that 
the increase from the particular change occurs.
    (iii) An increase or decrease in actual emissions is creditable only 
if the reviewing authority has not relied on it in issuing a permit for 
the source under regulations approved pursuant to this section, which 
permit is in effect when the increase in actual emissions from the 
particular change occurs.
    (iv) An increase or decrease in actual emissions of sulfur dioxide, 
particulate matter, or nitrogen oxides, which occurs before the 
applicable minor source baseline date is creditable only if it is 
required to be considered in calculating the amount of maximum allowable 
increases remaining available. With respect to particulate matter, only 
PM-10 emissions can be used to evaluate the net emissions increase for 
PM-10.
    (v) An increase in actual emissions is creditable only to the extent 
that the new level of actual emissions exceeds the old level.
    (vi) A decrease in actual emissions is creditable only to the extent 
that:
    (a) The old level of actual emissions or the old level of allowable 
emissions, whichever is lower, exceeds the new level of actual 
emissions;
    (b) It is federally enforceable at and after the time that actual 
construction on the particular change begins; and
    (c) It has approximately the same qualitative significance for 
public health and welfare as that attributed to the increase from the 
particular change.
    (vii) An increase that results from a physical change at a source 
occurs when the emissions unit on which construction occurred becomes 
operational and begins to emit a particular pollutant. Any replacement 
unit that requires shakedown becomes operational only after a reasonable 
shakedown period, not to exceed 180 days.
    (4) Potential to emit means the maximum capacity of a stationary 
source to emit a pollutant under its physical and operational design. 
Any physical or operational limitation on the capacity of the source to 
emit a pollutant, including air pollution control equipment and 
restrictions on hours of operation or on the type or amount of material 
combusted, stored, or processed, shall be treated as part of its design 
if the limitation or the effect it would have on emissions is federally 
enforceable. Secondary emissions do not count in determining the 
potential to emit of a stationary source.
    (5) Stationary source means any building, structure, facility, or 
installation which emits or may emit any air pollutant subject to 
regulation under the Act.
    (6) Building, structure, facility, or installation means all of the 
pollutant-emitting activities which belong to the same industrial 
grouping, are located on one or more contiguous or adjacent properties, 
and are under the control of the same person (or persons under common 
control) except the activities of any vessel. Pollutant-emitting 
activities shall be considered as part of the same industrial grouping 
if they belong to the same Major Group (i.e., which have the same two-
digit code) as described in the Standard Industrial Classification 
Manual, 1972, as amended by

[[Page 761]]

the 1977 Supplement (U.S. Government Printing Office stock numbers 4101-
0066 and 003-005-00176-0, respectively).
    (7) Emissions unit means any part of a stationary source which emits 
or would have the potential to emit any pollutant subject to regulation 
under the Act.
    (8) Construction means any physical change or change in the method 
of operation (including fabrication, erection, installation, demolition, 
or modification of an emissions unit) which would result in a change in 
actual emissions.
    (9) Commence as applied to construction of a major stationary source 
or major modification means that the owner or operator has all necessary 
preconstruction approvals or permits and either has:
    (i) Begun, or caused to begin, a continuous program of actual on-
site construction of the source, to be completed within a reasonable 
time; or
    (ii) Entered into binding agreements or contractual obligations, 
which cannot be cancelled or modified without substantial loss to the 
owner or operator, to undertake a program of actual construction of the 
source to be completed within a reasonable time.
    (10) Necessary preconstruction approvals or permits means those 
permits or approvals required under federal air quality control laws and 
regulations and those air quality control laws and regulations which are 
part of the applicable State Implementation Plan.
    (11) Begin actual construction means, in general, initiation of 
physical on-site construction activities on an emissions unit which are 
of a permanent nature. Such activities include, but are not limited to, 
installation of building supports and foundations, laying of underground 
pipework, and construction of permanent storage structures. With respect 
to a change in method of operation this term refers to those on-site 
activities, other than preparatory activities, which mark the initiation 
of the change.
    (12) Best available control technology means an emissions limitation 
(including a visible emissions standard) based on the maximum degree of 
reduction for each pollutant subject to regulation under the Act which 
would be emitted from any proposed major stationary source or major 
modification which the reviewing authority, on a case-by-case basis, 
taking into account energy, environmental, and economic impacts and 
other costs, determines is achievable for such source or modification 
through application of production processes or available methods, 
systems, and techniques, including fuel cleaning or treatment or 
innovative fuel combination techniques for control of such pollutant. In 
no event shall application of best available control technology result 
in emissions of any pollutant which would exceed the emissions allowed 
by any applicable standard under 40 CFR parts 60 and 61. If the 
reviewing authority determines that technological or economic 
limitations on the application of measurement methodology to a 
particular emissions unit would make the imposition of an emissions 
standard infeasible, a design, equipment, work practice, operational 
standard or combination thereof, may be prescribed instead to satisfy 
the requirement for the application of best available control 
technology. Such standard shall, to the degree possible, set forth the 
emissions reduction achievable by implementation of such design, 
equipment, work practice or operation, and shall provide for compliance 
by means which achieve equivalent results.
    (13)(i) Baseline concentration means that ambient concentration 
level which exists in the baseline area at the time of the applicable 
minor source baseline date. A baseline concentration is determined for 
each pollutant for which a minor source baseline date is established and 
shall include:
    (a) The actual emissions representative of sources in existence on 
the applicable minor source baseline date, except as provided in 
paragraph (b)(13)(ii) of this section;
    (b) The allowable emissions of major stationary sources which 
commenced construction before the major source baseline date, but were 
not in operation by the applicable minor source baseline date.
    (ii) The following will not be included in the baseline 
concentration and will affect the applicable maximum allowable 
increase(s):

[[Page 762]]

    (a) Actual emissions from any major stationary source on which 
construction commenced after the major source baseline date; and
    (b) Actual emissions increases and decreases at any stationary 
source occurring after the minor source baseline date.
    (14)(i) Major source baseline date means:
    (a) In the case of particulate matter and sulfur dioxide, January 6, 
1975, and
    (b) In the case of nitrogen dioxide, February 8, 1988.
    (ii) Minor source baseline date means the earliest date after the 
trigger date on which a major stationary source or a major modification 
subject to 40 CFR 52.21 or to regulations approved pursuant to 40 CFR 
51.166 submits a complete application under the relevant regulations. 
The trigger date is:
    (a) In the case of particulate matter and sulfur dioxide, August 7, 
1977, and
    (b) In the case of nitrogen dioxide, February 8, 1988.
    (iii) The baseline date is established for each pollutant for which 
increments or other equivalent measures have been established if:
    (a) The area in which the proposed source or modification would 
construct is designated as attainment or unclassifiable under section 
107(d)(i) (D) or (E) of the Act for the pollutant on the date of its 
complete application under 40 CFR 52.21 or under regulations approved 
pursuant to 40 CFR 51.166; and
    (b) In the case of a major stationary source, the pollutant would be 
emitted in significant amounts, or, in the case of a major modification, 
there would be a significant net emissions increase of the pollutant.
    (iv) Any minor source baseline date established originally for the 
TSP increments shall remain in effect and shall apply for purposes of 
determining the amount of available PM-10 increments, except that the 
reviewing authority may rescind any such minor source baseline date 
where it can be shown, to the satisfaction of the reviewing authority, 
that the emissions increase from the major stationary source, or the net 
emissions increase from the major modification, responsible for 
triggering that date did not result in a significant amount of PM-10 
emissions.
    (15)(i) Baseline area means any intrastate area (and every part 
thereof) designated as attainment or unclassifiable under section 
107(d)(1) (D) or (E) of the Act in which the major source or major 
modification establishing the minor source baseline date would construct 
or would have an air quality impact equal to or greater than 1 
g/m\3\ (annual average) of the pollutant for which the minor 
source baseline date is established.
    (ii) Area redesignations under section 107(d)(1) (D) or (E) of the 
Act cannot intersect or be smaller than the area of impact of any major 
stationary source or major modification which:
    (a) Establishes a minor source baseline date; or
    (b) Is subject to 40 CFR 52.21 or under regulations approved 
pursuant to 40 CFR 51.166, and would be constructed in the same state as 
the state proposing the redesignation.
    (iii) Any baseline area established originally for the TSP 
increments shall remain in effect and shall apply for purposes of 
determining the amount of available PM-10 increments, except that such 
baseline area shall not remain in effect if the permit authority 
rescinds the corresponding minor source baseline date in accordance with 
paragraph (b)(14)(iv) of this section.
    (16) Allowable emissions means the emissions rate of a stationary 
source calculated using the maximum rated capacity of the source (unless 
the source is subject to federally enforceable limits which restrict the 
operating rate, or hours of operation, or both) and the most stringent 
of the following:
    (i) The applicable standards as set forth in 40 CFR parts 60 and 61;
    (ii) The applicable State Implementation Plan emissions limitation, 
including those with a future compliance date; or
    (iii) The emissions rate specified as a federally enforceable permit 
condition.
    (17) Federally enforceable means all limitations and conditions 
which are enforceable by the Administrator, including those requirements 
developed pursuant to 40 CFR parts 60 and 61, requirements within any 
applicable State

[[Page 763]]

implementation plan, any permit requirements established pursuant to 40 
CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, 
subpart I, including operating permits issued under an EPA-approved 
program that is incorporated into the State implementation plan and 
expressly requires adherence to any permit issued under such program.
    (18) Secondary emissions means emissions which occur as a result of 
the construction or operation of a major stationary source or major 
modification, but do not come from the major stationary source or major 
modification itself. For the purposes of this section, secondary 
emissions must be specific, well defined, quantifiable, and impact the 
same general areas the stationary source modification which causes the 
secondary emissions. Secondary emissions include emissions from any 
offsite support facility which would not be constructed or increase its 
emissions except as a result of the construction or operation of the 
major stationary source or major modification. Secondary emissions do 
not include any emissions which come directly from a mobile source, such 
as emissions from the tailpipe of a motor vehicle, from a train, or from 
a vessel.
    (19) Innovative control technology means any system of air pollution 
control that has not been adequately demonstrated in practice, but would 
have a substantial likelihood of achieving greater continuous emissions 
reduction than any control system in current practice or of achieving at 
least comparable reductions at lower cost in terms of energy, economics, 
or nonair quality environmental impacts.
    (20) Fugitive emissions means those emissions which could not 
reasonably pass through a stack, chimney, vent, or other functionally 
equivalent opening.
    (21)(i) Actual emissions means the actual rate of emissions of a 
pollutant from an emissions unit, as determined in accordance with 
paragraphs (b)(21) (ii) through (iv) of this section.
    (ii) In general, actual emissions as of a particular date shall 
equal the average rate, in tons per year, at which the unit actually 
emitted the pollutant during a two-year period which precedes the 
particular date and which is representative of normal source operation. 
The reviewing authority may allow the use of a different time period 
upon a determination that it is more representative of normal source 
operation. Actual emissions shall be calculated using the unit's actual 
operating hours, production rates, and types of materials processed, 
stored, or combusted during the selected time period.
    (iii) The reviewing authority may presume that source-specific 
allowable emissions for the unit are equivalent to the actual emissions 
of the unit.
    (iv) For any emissions unit (other than an electric utility steam 
generating unit specified in paragraph (b)(21)(v) of this section) which 
has not begun normal operations on the particular date, actual emissions 
shall equal the potential to emit of the unit on that date.
    (v) For an electric utility steam generating unit (other than a new 
unit or the replacement of an existing unit) actual emissions of the 
unit following the physical or operational change shall equal the 
representative actual annual emissions of the unit following the 
physical or operational change, provided the source owner or operator 
maintains and submits to the reviewing authority, on an annual basis for 
a period of 5 years from the date the unit resumes regular operation, 
information demonstrating that the physical or operational change did 
not result in an emissions increase. A longer period, not to exceed 10 
years, may be required by the reviewing authority if it determines such 
a period to be more representative of normal source post-change 
operations.
    (22) Complete means, in reference to an application for a permit, 
that the application contains all the information necessary for 
processing the application. Designating an application complete for 
purposes of permit processing does not preclude the reviewing authority 
from requesting or accepting any additional information.
    (23)(i) Significant means, in reference to a net emissions increase 
or the potential of a source to emit any of the following pollutants, a 
rate of emissions that would equal or exceed any of the following rates:

[[Page 764]]

                      Pollutant and Emissions Rate

Carbon monoxide: 100 tons per year (tpy)
Nitrogen oxides: 40 tpy
Sulfur dioxide: 40 tpy
Particulate matter: 25 tpy of particulate matter emissions. 15 tpy of 
PM10 emissions.
Ozone: 40 tpy of volatile organic compounds
Lead: 0.6 tpy
Asbestos: 0.007 tpy
Beryllium: 0.0004 tpy
Mercury: 0.1 tpy
Vinyl chloride: 1 tpy
Fluorides: 3 tpy
Sulfuric acid mist: 7 tpy
Hydrogen sulfide (H2S): 10 tpy
Total reduced sulfur (including H2S): 10 tpy
Reduced sulfur compounds (including H2S): 10 tpy
Municipal waste combustor organics (measured as total tetra- through 
octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2  x  10-6 
megagrams per year (3.5  x  10-6 tons per year)
Municipal waste combustor metals (measured as articulate matter): 14 
megagrams per year (15 tons per year) Municipal waste combustor acid 
gases (measured as sulfur dioxide and hydrogen chloride): 36 megagrams 
per year (40 tons per year)
Municipal solid waste landfill emissions (measured as nonmethane organic 
compounds): 45 megagrams per year (50 tons per year)

    (ii) Significant means, in reference to a net emissions increase or 
the potential of a source to emit a pollutant subject to regulation 
under the Act that paragraph (b)(23)(i) of this section, does not list, 
any emissions rate.
    (iii) Notwithstanding paragraph (b)(23)(i) of this section, 
significant means any emissions rate or any net emissions increase 
associated with a major stationary source or major modification, which 
would construct within 10 kilometers of a Class I area, and have an 
impact on such area equal to or greater than 1 g/m3 (24-
hour average).
    (24) Federal Land Manager means, with respect to any lands in the 
United States, the Secretary of the department with authority over such 
lands.
    (25) High terrain means any area having an elevation 900 feet or 
more above the base of the stack of a source.
    (26) Low terrain means any area other than high terrain.
    (27) Indian Reservation means any federally recognized reservation 
established by Treaty, Agreement, Executive Order, or Act of Congress.
    (28) Indian Governing Body means the governing body of any tribe, 
band, or group of Indians subject to the jurisdiction of the United 
States and recognized by the United States as possessing power of self-
government.
    (29) Volatile organic compounds (VOC) is as defined in 
Sec. 51.100(s) of this part.
    (30) Electric utility steam generating unit means any steam electric 
generating unit that is constructed for the purpose of supplying more 
than one-third of its potential electric output capacity and more than 
25 MW electrical output to any utility power distribution system for 
sale. Any steam supplied to a steam distribution system for the purpose 
of providing steam to a steam-electric generator that would produce 
electrical energy for sale is also considered in determining the 
electrical energy output capacity of the affected facility.
    (31) Pollution control project means any activity or project 
undertaken at an existing electric utility steam generating unit for 
purposes of reducing emissions from such unit. Such activities or 
projects are limited to:
    (i) The installation of conventional or innovative pollution control 
technology, including but not limited to advanced flue gas 
desulfurization, sorbent injection for sulfur dioxide and nitrogen 
oxides controls and electrostatic precipitators;
    (ii) An activity or project to accommodate switching to a fuel which 
is less polluting than the fuel used prior to the activity or project, 
including but not limited to natural gas or coal re-burning, or the co-
firing of natural gas and other fuels for the purpose of controlling 
emissions;
    (iii) A permanent clean coal technology demonstration project 
conducted under title II, section 101(d) of the Further Continuing 
Appropriations Act of 1985 (section 5903(d) of title 42 of the United 
States Code), or subsequent appropriations, up to a total amount of 
$2,500,000,000 for commercial demonstration of clean coal technology, or 
similar projects funded through appropriations for the Environmental 
Protection Agency, or
    (iv) A permanent clean coal technology demonstration project that 
constitutes a repowering project.

[[Page 765]]

    (32) Representative actual annual emissions means the average rate, 
in tons per year, at which the source is projected to emit a pollutant 
for the two-year period after a physical change or change in the method 
of operation of a unit, (or a different consecutive two-year period 
within 10 years after that change, where the reviewing authority 
determines that such period is more representative of normal source 
operations), considering the effect any such change will have on 
increasing or decreasing the hourly emissions rate and on projected 
capacity utilization. In projecting future emissions the reviewing 
authority shall:
    (i) Consider all relevant information, including but not limited to, 
historical operational data, the company's own representations, filings 
with the State or Federal regulatory authorities, and compliance plans 
under title IV of the Clean Air Act; and
    (ii) Exclude, in calculating any increase in emissions that results 
from the particular physical change or change in the method of operation 
at an electric utility steam generating unit, that portion of the unit's 
emissions following the change that could have been accommodated during 
the representative baseline period and is attributable to an increase in 
projected capacity utilization at the unit that is unrelated to the 
particular change, including any increased utilization due to the rate 
of electricity demand growth for the utility system as a whole.
    (33) Clean coal technology means any technology, including 
technologies applied at the precombustion, combustion, or post 
combustion stage, at a new or existing facility which will achieve 
significant reductions in air emissions of sulfur dioxide or oxides of 
nitrogen associated with the utilization of coal in the generation of 
electricity, or process steam which was not in widespread use as of 
November 15, 1990.
    (34) Clean coal technology demonstration project means a project 
using funds appropriated under the heading ``Department of Energy--Clean 
Coal Technology'', up to a total amount of $2,500,000,000 for commercial 
demonstration of clean coal technology, or similar projects funded 
through appropriations for the Environmental Protection Agency. The 
Federal contribution for a qualifying project shall be at least 20 
percent of the total cost of the demonstration project.
    (35) Temporary clean coal technology demonstration project means a 
clean coal technology demonstration project that is operated for a 
period of 5 years or less, and which complies with the State 
implementation plan for the State in which the project is located and 
other requirements necessary to attain and maintain the national ambient 
air quality standards during and after the project is terminated.
    (36) (i) Repowering means replacement of an existing coal-fired 
boiler with one of the following clean coal technologies: atmospheric or 
pressurized fluidized bed combustion, integrated gasification combined 
cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, 
integrated gasification fuel cells, or as determined by the 
Administrator, in consultation with the Secretary of Energy, a 
derivative of one or more of these technologies, and any other 
technology capable of controlling multiple combustion emissions 
simultaneously with improved boiler or generation efficiency and with 
significantly greater waste reduction relative to the performance of 
technology in widespread commercial use as of November 15, 1990.
    (ii) Repowering shall also include any oil and/or gas-fired unit 
which has been awarded clean coal technology demonstration funding as of 
January 1, 1991, by the Department of Energy.
    (iii) The reviewing authority shall give expedited consideration to 
permit applications for any source that satisfies the requirements of 
this subsection and is granted an extension under section 409 of the 
Clean Air Act.
    (37) Reactivation of a very clean coal-fired electric utility steam 
generating unit means any physical change or change in the method of 
operation associated with the commencement of commercial operations by a 
coal-fired utility unit after a period of discontinued operation where 
the unit:
    (i) Has not been in operation for the two-year period prior to the 
enactment of the Clean Air Act Amendments of

[[Page 766]]

1990, and the emissions from such unit continue to be carried in the 
permitting authority's emissions inventory at the time of enactment;
    (ii) Was equipped prior to shutdown with a continuous system of 
emissions control that achieves a removal efficiency for sulfur dioxide 
of no less than 85 percent and a removal efficiency for particulates of 
no less than 98 percent;
    (iii) Is equipped with low-NOx burners prior to the time of 
commencement of operations following reactivation; and
    (iv) Is otherwise in compliance with the requirements of the Clean 
Air Act.
    (c) Ambient air increments. The plan shall contain emission 
limitations and such other measures as may be necessary to assure that 
in areas designated as Class I, II, or III, increases in pollutant 
concentration over the baseline concentration shall be limited to the 
following:

------------------------------------------------------------------------
                                                               Maximum  
                                                              allowable 
                                                               increase 
                         Pollutant                           (micrograms
                                                              per cubic 
                                                                meter)  
------------------------------------------------------------------------
                                 Class I                                
                                                                        
Particulate matter:                                                     
    PM-10, annual arithmetic mean..........................          4  
    PM-10, 24-hr maximum...................................          8  
Sulfur dioxide:                                                         
     Annual arithmetic mean................................          2  
    24-hr maximum..........................................          5  
    3-hr maximum...........................................         25  
Nitrogen dioxide: Annual arithmetic mean...................        2.5  
                                                                        
------------------------------------------------------------------------
                                Class II                                
                                                                        
------------------------------------------------------------------------
Particulate matter:                                                     
    PM-10, annual arithmetic mean..........................         17  
    PM-10, 24-hr maximum...................................         30  
Sulfur dioxide:                                                         
    Annual arithmetic mean.................................         20  
    24-hr maximum..........................................         91  
    3-hr maximum...........................................        512  
Nitrogen dioxide:                                                       
    Annual arithmetic mean.................................         25  
                                                                        
------------------------------------------------------------------------
                                Class III                               
                                                                        
------------------------------------------------------------------------
Particulate matter:                                                     
    PM-10, annual arithmetic mean..........................         34  
    PM-10, 24-hr maximum...................................         60  
Sulfur dioxide:                                                         
    Annual arithmetic mean.................................         40  
    24-hr maximum..........................................        182  
    3-hr maximum...........................................        700  
Nitrogen dioxide: Annual arithmetic mean...................         50  
------------------------------------------------------------------------

For any period other than an annual period, the applicable maximum 
allowable increase may be exceeded during one such period per year at 
any one location.
    (d) Ambient air ceilings. The plan shall provide that no 
concentration of a pollutant shall exceed:
    (1) The concentration permitted under the national secondary ambient 
air quality standard, or
    (2) The concentration permitted under the national primary ambient 
air quality standard, whichever concentration is lowest for the 
pollutant for a period of exposure.
    (e) Restrictions on area classifications. The plan shall provide 
that--
    (1) All of the following areas which were in existence on August 7, 
1977, shall be Class I areas and may not be redesignated:
    (i) International parks,
    (ii) National wilderness areas which exceed 5,000 acres in size,
    (iii) National memorial parks which exceed 5,000 acres in size, and
    (iv) National parks which exceed 6,000 acres in size.
    (2) Areas which were redesignated as Class I under regulations 
promulgated before August 7, 1977, shall remain Class I, but may be 
redesignated as provided in this section.
    (3) Any other area, unless otherwise specified in the legislation 
creating such an area, is initially designated Class II, but may be 
redesignated as provided in this section.
    (4) The following areas may be redesignated only as Class I or II:
    (i) An area which as of August 7, 1977, exceeded 10,000 acres in 
size and was a national monument, a national primitive area, a national 
preserve, a national recreational area, a national wild and scenic 
river, a national wildlife refuge, a national lakeshore or seashore; and
    (ii) A national park or national wilderness area established after 
August 7, 1977, which exceeds 10,000 acres in size.
    (f) Exclusions from increment consumption. (1) The plan may provide 
that the following concentrations shall be excluded in determining 
compliance with a maximum allowable increase:
    (i) Concentrations attributable to the increase in emissions from 
stationary sources which have converted from the use of petroleum 
products, natural gas, or both by reason of an order in effect

[[Page 767]]

under section 2 (a) and (b) of the Energy Supply and Environmental 
Coordination Act of 1974 (or any superseding legislation) over the 
emissions from such sources before the effective date of such an order;
    (ii) Concentrations attributable to the increase in emissions from 
sources which have converted from using natural gas by reason of natural 
gas curtailment plan in effect pursuant to the Federal Power Act over 
the emissions from such sources before the effective date of such plan;
    (iii) Concentrations of particulate matter attributable to the 
increase in emissions from construction or other temporary emission-
related activities of new or modified sources;
    (iv) The increase in concentrations attributable to new sources 
outside the United States over the concentrations attributable to 
existing sources which are included in the baseline concentration; and
    (v) Concentrations attributable to the temporary increase in 
emissions of sulfur dioxide, particulate matter, or nitrogen oxides from 
stationary sources which are affected by plan revisions approved by the 
Administrator as meeting the criteria specified in paragraph (f)(4) of 
this section.
    (2) If the plan provides that the concentrations to which paragraph 
(f)(1) (i) or (ii) of this section, refers shall be excluded, it shall 
also provide that no exclusion of such concentrations shall apply more 
than five years after the effective date of the order to which paragraph 
(f)(1)(i) of this section, refers or the plan to which paragraph 
(f)(1)(ii) of this section, refers, whichever is applicable. If both 
such order and plan are applicable, no such exclusion shall apply more 
than five years after the later of such effective dates.
    (3) [Reserved]
    (4) For purposes of excluding concentrations pursuant to paragraph 
(f)(1)(v) of this section, the Administrator may approve a plan revision 
that:
    (i) Specifies the time over which the temporary emissions increase 
of sulfur dioxide, particulate matter, or nitrogen oxides would occur. 
Such time is not to exceed 2 years in duration unless a longer time is 
approved by the Administrator.
    (ii) Specifies that the time period for excluding certain 
contributions in accordance with paragraph (f)(4)(i) of this section, is 
not renewable;
    (iii) Allows no emissions increase from a stationary source which 
would:
    (a) Impact a Class I area or an area where an applicable increment 
is known to be violated; or
    (b) Cause or contribute to the violation of a national ambient air 
quality standard;
    (iv) Requires limitations to be in effect the end of the time period 
specified in accordance with paragraph (f)(4)(i) of this section, which 
would ensure that the emissions levels from stationary sources affected 
by the plan revision would not exceed those levels occurring from such 
sources before the plan revision was approved.
    (g) Redesignation. (1) The plan shall provide that all areas of the 
State (except as otherwise provided under paragraph (e) of this section) 
shall be designated either Class I, Class II, or Class III. Any 
designation other than Class II shall be subject to the redesignation 
procedures of this paragraph. Redesignation (except as otherwise 
precluded by paragraph (e) of this section) may be proposed by the 
respective States or Indian Governing Bodies, as provided below, subject 
to approval by the Administrator as a revision to the applicable State 
implementation plan.
    (2) The plan may provide that the State may submit to the 
Administrator a proposal to redesignate areas of the State Class I or 
Class II: Provided, That:
    (i) At least one public hearing has been held in accordance with 
procedures established in Sec. 51.102.
    (ii) Other States, Indian Governing Bodies, and Federal Land 
Managers whose lands may be affected by the proposed redesignation were 
notified at least 30 days prior to the public hearing;
    (iii) A discussion of the reasons for the proposed redesignation, 
including a satisfactory description and analysis of the health, 
environmental, economic, social, and energy effects of the proposed 
redesignation, was prepared and made available for public inspection at

[[Page 768]]

least 30 days prior to the hearing and the notice announcing the hearing 
contained appropriate notification of the availability of such 
discussion;
    (iv) Prior to the issuance of notice respecting the redesignation of 
an area that includes any Federal lands, the State has provided written 
notice to the appropriate Federal Land Manager and afforded adequate 
opportunity (not in excess of 60 days) to confer with the State 
respecting the redesignation and to submit written comments and 
recommendations. In redesignating any area with respect to which any 
Federal Land Manager had submitted written comments and recommendations, 
the State shall have published a list of any inconsistency between such 
redesignation and such comments and recommendations (together with the 
reasons for making such redesignation against the recommendation of the 
Federal Land Manager); and
    (v) The State has proposed the redesignation after consultation with 
the elected leadership of local and other substate general purpose 
governments in the area covered by the proposed redesignation.
    (3) The plan may provide that any area other than an area to which 
paragraph (e) of this section refers may be redesignated as Class III 
if--
    (i) The redesignation would meet the requirements of provisions 
established in accordance with paragraph (g)(2) of this section;
    (ii) The redesignation, except any established by an Indian 
Governing Body, has been specifically approved by the Governor of the 
State, after consultation with the appropriate committees of the 
legislature, if it is in session, or with the leadership of the 
legislature, if it is not in session (unless State law provides that 
such redesignation must be specifically approved by State legislation) 
and if general purpose units of local government representing a majority 
of the residents of the area to be redesignated enact legislation 
(including resolutions where appropriate) concurring in the 
redesignation;
    (iii) The redesignation would not cause, or contribute to, a 
concentration of any air pollutant which would exceed any maximum 
allowable increase permitted under the classification of any other area 
or any national ambient air quality standard; and
    (iv) Any permit application for any major stationary source or major 
modification subject to provisions established in accordance with 
paragraph (l) of this section which could receive a permit only if the 
area in question were redesignated as Class III, and any material 
submitted as part of that application, were available, insofar as was 
practicable, for public inspection prior to any public hearing on 
redesignation of any area as Class III.
    (4) The plan shall provide that lands within the exterior boundaries 
of Indian Reservations may be redesignated only by the appropriate 
Indian Governing Body. The appropriate Indian Governing Body may submit 
to the Administrator a proposal to redesignate areas Class I, Class II, 
or Class III: Provided, That:
    (i) The Indian Governing Body has followed procedures equivalent to 
those required of a State under paragraphs (g) (2), (3)(iii), and 
(3)(iv) of this section; and
    (ii) Such redesignation is proposed after consultation with the 
State(s) in which the Indian Reservation is located and which border the 
Indian Reservation.
    (5) The Administrator shall disapprove, within 90 days of 
submission, a proposed redesignation of any area only if he finds, after 
notice and opportunity for public hearing, that such redesignation does 
not meet the procedural requirements of this section or is inconsistent 
with paragraph (e) of this section. If any such disapproval occurs, the 
classification of the area shall be that which was in effect prior to 
the redesignation which was disapproved.
    (6) If the Administrator disapproves any proposed area designation, 
the State or Indian Governing Body, as appropriate, may resubmit the 
proposal after correcting the deficiencies noted by the Administrator.
    (h) Stack heights. The plan shall provide, as a minimum, that the 
degree of emission limitation required for control of any air pollutant 
under the plan shall not be affected in any manner by--

[[Page 769]]

    (1) So much of a stack height, not in existence before December 31, 
1970, as exceeds good engineering practice, or
    (2) Any other dispersion technique not implemented before then.
    (i) Review of major stationary sources and major modifications--
source applicability and exemptions.
    (1) The plan shall provide that no major stationary source or major 
modification shall begin actual construction unless, as a minumum, 
requirements equivalent to those contained in paragraphs (j) through (r) 
of this section have been met.
    (2) The plan shall provide that the requirements equivalent to those 
contained in paragraphs (j) through (r) of this section shall apply to 
any major stationary source and any major modification with respect to 
each pollutant subject to regulation under the Act that it would emit, 
except as this section would otherwise allow.
    (3) The plan shall provide that requirements equivalent to those 
contained in paragraphs (j) through (r) of this section apply only to 
any major stationary source or major modification that would be 
constructed in an area which is designated as attainment or 
unclassifiable under section 107(a)(1) (D) or (E) of the Act; and
    (4) The plan may provide that requirements equivalent to those 
contained in paragraphs (j) through (r) of this section do not apply to 
a particular major stationary source or major modification if:
    (i) The major stationary source would be a nonprofit health or 
nonprofit educational institution or a major modification that would 
occur at such an institution; or
    (ii) The source or modification would be a major stationary source 
or major modification only if fugitive emissions, to the extent 
quantifiable, are considered in calculating the potential to emit of the 
stationary source or modification and such source does not belong to any 
following categories:
    (a) Coal cleaning plants (with thermal dryers);
    (b) Kraft pulp mills;
    (c) Portland cement plants;
    (d) Primary zinc smelters;
    (e) Iron and steel mills;
    (f) Primary aluminum ore reduction plants;
    (g) Primary copper smelters;
    (h) Municipal incinerators capable of charging more than 250 tons of 
refuse per day;
    (i) Hydrofluoric, sulfuric, or nitric acid plants;
    (j) Petroleum refineries;
    (k) Lime plants;
    (l) Phosphate rock processing plants;
    (m) Coke oven batteries;
    (n) Sulfur recovery plants;
    (o) Carbon black plants (furnace process);
    (p) Primary lead smelters;
    (q) Fuel conversion plants;
    (r) Sintering plants;
    (s) Secondary metal production plants;
    (t) Chemical process plants;
    (u) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (v) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (w) Taconite ore processing plants;
    (x) Glass fiber processing plants;
    (y) Charcoal production plants;
    (z) Fossil fuel-fired steam electric plants of more than 250 million 
British thermal units per hour heat input;
    (aa) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act; or
    (iii) The source or modification is a portable stationary source 
which has previously received a permit under requirements equivalent to 
those contained in paragraphs (j) through (r) of this section, if:
    (a) The source proposes to relocate and emissions of the source at 
the new location would be temporary; and
    (b) The emissions from the source would not exceed its allowable 
emissions; and
    (c) The emissions from the source would impact no Class I area and 
no area where an applicable increment is known to be violated; and

[[Page 770]]

    (d) Reasonable notice is given to the reviewing authority prior to 
the relocation identifying the proposed new location and the probable 
duration of operation at the new location. Such notice shall be given to 
the reviewing authority not less than 10 days in advance of the proposed 
relocation unless a different time duration is previously approved by 
the reviewing authority.
    (5) The plan may provide that requirements equivalent to those 
contained in paragraphs (j) through (r) of this section do not apply to 
a major stationary source or major modification with respect to a 
particular pollutant if the owner or operator demonstrates that, as to 
that pollutant, the source or modification is located in an area 
designated as nonattainment under section 107 of the Act.
    (6) The plan may provide that requirements equivalent to those 
contained in paragraphs (k), (m), and (o) of this section do not apply 
to a proposed major stationary source or major modification with respect 
to a particular pollutant, if the allowable emissions of that pollutant 
from a new source, or the net emissions increase of that pollutant from 
a modification, would be temporary and impact no Class I area and no 
area where an applicable increment is known to be violated.
    (7) The plan may provide that requirements equivalent to those 
contained in paragraphs (k), (m), and (o) of this section as they relate 
to any maximum allowable increase for a Class II area do not apply to a 
modification of a major stationary source that was in existence on March 
1, 1978, if the net increase in allowable emissions of each pollutant 
subject to regulation under the Act from the modification after the 
application of best available control technology would be less than 50 
tons per year.
    (8) The plan may provide that the reviewing authority may exempt a 
proposed major stationary source or major modification from the 
requirements of paragraph (m) of this section, with respect to 
monitoring for a particular pollutant, if:
    (i) The emissions increase of the pollutant from a new stationary 
source or the net emissions increase of the pollutant from a 
modification would cause, in any area, air quality impacts less than the 
following amounts:
    (a) Carbon monoxide--575 ug/m3, 8-hour average;
    (b) Nitrogen dioxide--14 ug/m3, annual average;
    (c) Particulate matter--10 g/m\3\ of PM-10, 24-hour 
average.
    (d) Sulfur dioxide--13 ug/m3, 24-hour average;
    (e) Ozone; 1
---------------------------------------------------------------------------

    1 No de minimis air quality level is provided for ozone. However, 
any net increase of 100 tons per year or more of volatile organic 
compounds subject to PSD would be required to perform and ambient impact 
analysis, including the gathering of ambient air quality data.
---------------------------------------------------------------------------

    (f) Lead--0.1 g/m\3\, 3-month average.
    (g) Mercury--0.25 ug/m3, 24-hour average;
    (h) Beryllium--0.001 g/m\3\, 24-hour average:
    (i) Fluorides--0.25 ug/m3, 24-hour average;
    (j) Vinyl chloride--15 ug/m3, 24-hour average;
    (k) Total reduced sulfur--10 ug/m3, 1-hour average;
    (l) Hydrogen sulfide--0.2 g/m\3\, 1-hour average:
    (m) Reduced sulfur compounds--10 ug/m3, 1-hour average; or
    (ii) The concentrations of the pollutant in the area that the source 
or modification would affect are less than the concentrations listed in 
(i)(8)(i) of this section; or
    (iii) The pollutants is not listed in paragraph (i)(8)(i) of this 
section.
    (9) If EPA approves a plan revision under 40 CFR 51.166 as in effect 
before August 7, 1980, any subsequent revision which meets the 
requirements of this section may contain transition provisions which 
parallel the transition provisions of 40 CFR 52.21(i)(9), (i)(10) and 
(m)(1)(v) as in effect on that date, which provisions relate to 
requirements for best available control technology and air quality 
analyses. Any such subsequent revision may not contain any transition 
provision which in the context of the revision would operate any less 
stringently than would its counterpart in 40 CFR 52.21.
    (10) If EPA approves a plan revision under Sec. 51.166 as in effect 
[before July

[[Page 771]]

31, 1987], any subsequent revision which meets the requirements of this 
section may contain transition provisions which parallel the transition 
provisions of Sec. 52.21 (i)(11), and (m)(1) (vii) and (viii) of this 
chapter as in effect on that date, these provisions being related to 
monitoring requirements for particulate matter. Any such subsequent 
revision may not contain any transition provision which in the context 
of the revision would operate any less stringently than would its 
counterpart in Sec. 52.21 of this chapter.
    (11) The plan may provide that the permitting requirements 
equivalent to those contained in paragraph (k)(2) of this section do not 
apply to a stationary source or modification with respect to any maximum 
allowable increase for nitrogen oxides if the owner or operator of the 
source or modification submitted an application for a permit under the 
applicable permit program approved or promulgated under the Act before 
the provisions embodying the maximum allowable increase took effect as 
part of the plan and the permitting authority subsequently determined 
that the application as submitted before that date was complete.
    (12) The plan may provide that the permitting requirements 
equivalent to those contained in paragraph (k)(2) of this section shall 
not apply to a stationary source or modification with respect to any 
maximum allowable increase for PM-10 if (i) the owner or operator of the 
source or modification submitted an application for a permit under the 
applicable permit program approved under the Act before the provisions 
embodying the maximum allowable increases for PM-10 took effect as part 
of the plan, and (ii) the permitting authority subsequently determined 
that the application as submitted before that date was complete. 
Instead, the applicable requirements equivalent to paragraph (k)(2) 
shall apply with respect to the maximum allowable increases for TSP as 
in effect on the date the application was submitted.
    (j) Control technology review. The plan shall provide that:
    (1) A major stationary source or major modification shall meet each 
applicable emissions limitation under the State Implementation Plan and 
each applicable emission standards and standard of performance under 40 
CFR parts 60 and 61.
    (2) A new major stationary source shall apply best available control 
technology for each pollutant subject to regulation under the Act that 
it would have the potential to emit in significant amounts.
    (3) A major modification shall apply best available control 
technology for each pollutant subject to regulation under the Act for 
which it would be a significant net emissions increase at the source. 
This requirement applies to each proposed emissions unit at which a net 
emissions increase in the pollutant would occur as a result of a 
physical change or change in the method of operation in the unit.
    (4) For phased construction projects, the determination of best 
available control technology shall be reviewed and modified as 
appropriate at the least reasonable time which occurs no later than 18 
months prior to commencement of construction of each independent phase 
of the project. At such time, the owner or operator of the applicable 
stationary source may be required to demonstrate the adequacy of any 
previous determination of best available control technology for the 
source.
    (k) Source impact analysis. The plan shall provide that the owner or 
operator of the proposed source or modification shall demonstrate that 
allowable emission increases from the proposed source or modification, 
in conjunction with all other applicable emissions increases or 
reduction (including secondary emissions) would not cause or contribute 
to air pollution in violation of:
    (1) Any national ambient air quality standard in any air quality 
control region; or
    (2) Any applicable maximum allowable increase over the baseline 
concentration in any area.
    (l) Air quality models. The plan shall provide for procedures which 
specify that--
    (1) All applications of air quality modeling involved in this 
subpart shall be based on the applicable models, data bases, and other 
requirements specified

[[Page 772]]

in the appendix W of this part (``Guideline on Air Quality Models 
(Revised)'' (1986), supplement A (1987), supplement B (1993) and 
supplement C (1995)). The Guideline and its supplements (EPA Publication 
No. 450/2-78-027R) are also for sale from the U.S. Department of 
Commerce, National Technical Information Service, 5825 Port Royal Road, 
Springfield, VA, 22161.
    (2) Where an air quality model specified in the Appendix W of this 
part (``Guideline on Air Quality Models (Revised)'' (1986), supplement A 
(1987), supplement B (1993) and supplement C (1995)) is inappropriate, 
the model may be modified or another model substituted. Such a 
modification or substitution of a model may be made on a case-by-case 
basis or, where appropriate, on a generic basis for a specific state 
program. Written approval of the Administrator must be obtained for any 
modification or substitution. In addition, use of a modified or 
substituted model must be subject to notice and opportunity for public 
comment under procedures set forth in Sec. 51.102.
    (m) Air quality analysis--(1) Preapplication analysis. (i) The plan 
shall provide that any application for a permit under regulations 
approved pursuant to this section shall contain an analysis of ambient 
air quality in the area that the major stationary source or major 
modification would affect for each of the following pollutants:
    (a) For the source, each pollutant that it would have the potential 
to emit in a significant amount;
    (b) For the modification, each pollutant for which it would result 
in a significant net emissions increase.
    (ii) The plan shall provide that, with respect to any such pollutant 
for which no National Ambient Air Quality Standard exists, the analysis 
shall contain such air quality monitoring data as the reviewing 
authority determines is necessary to assess ambient air quality for that 
pollutant in any area that the emissions of that pollutant would affect.
    (iii) The plan shall provide that with respect to any such pollutant 
(other than nonmethane hydrocarbons) for which such a standard does 
exist, the analysis shall contain continuous air quality monitoring data 
gathered for purposes of determining whether emissions of that pollutant 
would cause or contribute to a violation of the standard or any maxiumum 
allowable increase.
    (iv) The plan shall provide that, in general, the continuous air 
monitoring data that is required shall have been gathered over a period 
of one year and shall represent the year preceding receipt of the 
application, except that, if the reviewing authority determines that a 
complete and adequate analysis can be accomplished with monitoring data 
gathered over a period shorter than one year (but not to be less than 
four months), the data that is required shall have been gathered over at 
least that shorter period.
    (v) The plan may provide that the owner or operator of a proposed 
major stationary source or major modification of volatile organic 
compounds who satisfies all conditions of 40 CFR part 51 appendix S, 
section IV may provide postapproval monitoring data for ozone in lieu of 
providing preconstruction data as required under paragraph (m)(1) of 
this section.
    (2) Post-construction monitoring. The plan shall provide that the 
owner or operator of a major stationary source or major modification 
shall, after construction of the stationary source or modification, 
conduct such ambient monitoring as the reviewing authority determines is 
necessary to determine the effect emissions from the stationary source 
or modification may have, or are having, on air quality in any area.
    (3) Operation of monitoring stations. The plan shall provide that 
the owner or operator of a major stationary source or major modification 
shall meet the requirements of appendix B to part 58 of this chapter 
during the operation of monitoring stations for purposes of satisfying 
paragraph (m) of this section.
    (n) Source information. (1) The plan shall provide that the owner or 
operator of a proposed source or modification shall submit all 
information necessary to perform any analysis or make any determination 
required under procedures established in accordance with this section.

[[Page 773]]

    (2) The plan may provide that such information shall include:
    (i) A description of the nature, location, design capacity, and 
typical operating schedule of the source or modification, including 
specifications and drawings showing its design and plant layout;
    (ii) A detailed schedule for construction of the source or 
modification;
    (iii) A detailed description as to what system of continuous 
emission reduction is planned by the source or modification, emission 
estimates, and any other information as necessary to determine that best 
available control technology as applicable would be applied;
    (3) The plan shall provide that upon request of the State, the owner 
or operator shall also provide information on:
    (i) The air quality impact of the source or modification, including 
meteorological and topographical data necessary to estimate such impact; 
and
    (ii) The air quality impacts and the nature and extent of any or all 
general commercial, residential, industrial, and other growth which has 
occurred since August 7, 1977, in the area the source or modification 
would affect.
    (o) Additional impact analyses. The plan shall provide that--
    (1) The owner or operator shall provide an analysis of the 
impairment to visibility, soils, and vegetation that would occur as a 
result of the source or modification and general commercial, 
residential, industrial, and other growth associated with the source or 
modification. The owner or operator need not provide an analysis of the 
impact on vegetation having no significant commercial or recreational 
value.
    (2) The owner or operator shall provide an analysis of the air 
quality impact projected for the area as a result of general commercial, 
residential, industrial, and other growth associated with the source or 
modification.
    (p) Sources impacting Federal Class I areas--additional 
requirements--(1) Notice to EPA. The plan shall provide that the 
reviewing authority shall transmit to the Administrator a copy of each 
permit application relating to a major stationary source or major 
modification and provide notice to the Administrator of every action 
related to the consideration of such permit.
    (2) Federal Land Manager. The Federal Land Manager and the Federal 
official charged with direct responsibility for management of Class I 
lands have an affirmative responsibility to protect the air quality 
related values (including visibility) of any such lands and to consider, 
in consultation with the Administrator, whether a proposed source or 
modification would have an adverse impact on such values.
    (3) Denial--impact on air quality related values. The plan shall 
provide a mechanism whereby a Federal Land Manager of any such lands may 
present to the State, after the reviewing authority's preliminary 
determination required under procedures developed in accordance with 
paragraph (r) of this section, a demonstration that the emissions from 
the proposed source or modification would have an adverse impact on the 
air quality-related values (including visibility) of any Federal 
mandatory Class I lands, notwithstanding that the change in air quality 
resulting from emissions from such source or modification would not 
cause or contribute to concentrations which would exceed the maximum 
allowable increases for a Class I area. If the State concurs with such 
demonstration, the reviewing authority shall not issue the permit.
    (4) Class I Variances. The plan may provide that the owner or 
operator of a proposed source or modification may demonstrate to the 
Federal Land Manager that the emissions from such source would have no 
adverse impact on the air quality related values of such lands 
(including visibility), notwithstanding that the change in air quality 
resulting from emissions from such source or modification would cause or 
contribute to concentrations which would exceed the maximum allowable 
increases for a Class I area. If the Federal land manager concurs with 
such demonstration and so certifies to the State, the reviewing 
authority may: Provided, That applicable requirements are otherwise met, 
issue the permit with such emission limitations as may be necessary to 
assure that emissions of sulfur dioxide, particulate matter, and 
nitrogen oxides would not

[[Page 774]]

exceed the following maximum allowable increases over minor source 
baseline concentration for such pollutants:

------------------------------------------------------------------------
                                                               Maximum  
                                                              allowable 
                                                               increase 
                         Pollutant                           (micrograms
                                                              per cubic 
                                                                meter)  
------------------------------------------------------------------------
Particulate matter:                                                     
    PM-10, annual arithmetic mean..........................         17  
    PM-10, 24-hour maximum.................................         30  
Sulfur dioxide:                                                         
    Annual arithmetic mean.................................         20  
    24-hr maximum..........................................         91  
    3-hr maximum...........................................        325  
Nitrogen dioxide: Annual arithmetic mean...................         25  
------------------------------------------------------------------------

    (5) Sulfur dioxide variance by Governor with Federal Land Manager's 
concurrence. The plan may provide that--
    (i) The owner or operator of a proposed source or modification which 
cannot be approved under procedures developed pursuant to paragraph 
(q)(4) of this section may demonstrate to the Governor that the source 
or modification cannot be constructed by reason of any maximum allowable 
increase for sulfur dioxide for periods of twenty-four hours or less 
applicable to any Class I area and, in the case of Federal mandatory 
Class I areas, that a variance under this clause would not adversely 
affect the air quality related values of the area (including 
visibility);
    (ii) The Governor, after consideration of the Federal Land Manager's 
recommendation (if any) and subject to his concurrence, may grant, after 
notice and an opportunity for a public hearing, a variance from such 
maximum allowable increase; and
    (iii) If such variance is granted, the reviewing authority may issue 
a permit to such source or modification in accordance with provisions 
developed pursuant to paragraph (q)(7) of this section: Provided, That 
the applicable requirements of the plan are otherwise met.
    (6) Variance by the Governor with the President's concurrence. The 
plan may provide that--
    (i) The recommendations of the Governor and the Federal Land Manager 
shall be transferred to the President in any case where the Governor 
recommends a variance in which the Federal Land Manager does not concur;
    (ii) The President may approve the Governor's recommendation if he 
finds that such variance is in the national interest; and
    (iii) If such a variance is approved, the reviewing authority may 
issue a permit in accordance with provisions developed pursuant to the 
requirements of paragraph (q)(7) of this section: Provided, That the 
applicable requirements of the plan are otherwise met.
    (7) Emission limitations for Presidential or gubernatorial variance. 
The plan shall provide that in the case of a permit issued under 
procedures developed pursuant to paragraph (q) (5) or (6) of this 
section, the source or modification shall comply with emission 
limitations as may be necessary to assure that emissions of sulfur 
dioxide from the source or modification would not (during any day on 
which the otherwise applicable maximum allowable increases are exceeded) 
cause or contribute to concentrations which would exceed the following 
maximum allowable increases over the baseline concentration and to 
assure that such emissions would not cause or contribute to 
concentrations which exceed the otherwise applicable maximum allowable 
increases for periods of exposure of 24 hours or less for more than 18 
days, not necessarily consecutive, during any annual period:

                       Maximum Allowable Increase                       
                      [Micrograms per cubic meter]                      
------------------------------------------------------------------------
                                                          Terrain areas 
                  Period of exposure                   -----------------
                                                          Low      High 
------------------------------------------------------------------------
24-hr maximum.........................................       36       62
3-hr maximum..........................................      130      221
------------------------------------------------------------------------

    (q) Public participation. The plan shall provide that--
    (1) The reviewing authority shall notify all applicants within a 
specified time period as to the completeness of the application or any 
deficiency in the application or information submitted. In the event of 
such a deficiency, the date of receipt of the application shall be the 
date on which the reviewing authority received all required information.

[[Page 775]]

    (2) Within one year after receipt of a complete application, the 
reviewing authority shall:
    (i) Make a preliminary determination whether construction should be 
approved, approved with conditions, or disapproved.
    (ii) Make available in at least one location in each region in which 
the proposed source would be constructed a copy of all materials the 
applicant submitted, a copy of the preliminary determination, and a copy 
or summary of other materials, if any, considered in making the 
preliminary determination.
    (iii) Notify the public, by advertisement in a newspaper of general 
circulation in each region in which the proposed source would be 
constructed, of the application, the preliminary determination, the 
degree of increment consumption that is expected from the source or 
modification, and of the opportunity for comment at a public hearing as 
well as written public comment.
    (iv) Send a copy of the notice of public comment to the applicant, 
the Administrator and to officials and agencies having cognizance over 
the location where the proposed construction would occur as follows: Any 
other State or local air pollution control agencies, the chief 
executives of the city and county where the source would be located; any 
comprehensive regional land use planning agency, and any State, Federal 
Land Manager, or Indian Governing body whose lands may be affected by 
emissions from the source or modification.
    (v) Provide opportunity for a public hearing for interested persons 
to appear and submit written or oral comments on the air quality impact 
of the source, alternatives to it, the control technology required, and 
other appropriate considerations.
    (vi) Consider all written comments submitted within a time specified 
in the notice of public comment and all comments received at any public 
hearing(s) in making a final decision on the approvability of the 
application. The reviewing authority shall make all comments available 
for public inspection in the same locations where the reviewing 
authority made available preconstruction information relating to the 
proposed source or modification.
    (vii) Make a final determination whether construction should be 
approved, approved with conditions, or disapproved.
    (viii) Notify the applicant in writing of the final determination 
and make such notification available for public inspection at the same 
location where the reviewing authority made available preconstruction 
information and public comments relating to the source.
    (r) Source obligation. (1) The plan shall include enforceable 
procedures to provide that approval to construct shall not relieve any 
owner or operator of the responsibility to comply fully with applicable 
provisions of the plan and any other requirements under local, State or 
Federal law.
    (2) The plan shall provide that at such time that a particular 
source or modification becomes a major stationary source or major 
modification solely by virtue of a relaxation in any enforceable 
limitation which was established after August 7, 1980, on the capacity 
of the source or modification otherwise to emit a pollutant, such as a 
restriction on hours of operation, then the requirements of paragraphs 
(j) through (s) of this section shall apply to the source or 
modification as though construction had not yet commenced on the source 
or modification.
    (s) Innovative control technology. (1) The plan may provide that an 
owner or operator of a proposed major stationary source or major 
modification may request the reviewing authority to approve a system of 
innovative control technology.
    (2) The plan may provide that the reviewing authority may, with the 
consent of the governor(s) of other affected state(s), determine that 
the source or modification may employ a system of innovative control 
technology, if:
    (i) The proposed control system would not cause or contribute to an 
unreasonable risk to public health, welfare, or safety in its operation 
or function;
    (ii) The owner or operator agrees to achieve a level of continuous 
emissions reduction equivalent to that which would have been required 
under paragraph (j)(2) of this section, by a date

[[Page 776]]

specified by the reviewing authority. Such date shall not be later than 
4 years from the time of startup or 7 years from permit issuance;
    (iii) The source or modification would meet the requirements 
equivalent to those in paragraphs (j) and (k) of this section, based on 
the emissions rate that the stationary source employing the system of 
innovative control technology would be required to meet on the date 
specified by the reviewing authority;
    (iv) The source or modification would not before the date specified 
by the reviewing authority:
    (a) Cause or contribute to any violation of an applicable national 
ambient air quality standard; or
    (b) Impact any area where an applicable increment is known to be 
violated;
    (v) All other applicable requirements including those for public 
participation have been met.
    (vi) The provisions of paragraph (p) of this section (relating to 
Class I areas) have been satisfied with respect to all periods during 
the life of the source or modification.
    (3) The plan shall provide that the reviewing authority shall 
withdraw any approval to employ a system of innovative control 
technology made under this section, if:
    (i) The proposed system fails by the specified date to achieve the 
required continuous emissions reduction rate; or
    (ii) The proposed system fails before the specified date so as to 
contribute to an unreasonable risk to public health, welfare, or safety; 
or
    (iii) The reviewing authority decides at any time that the proposed 
system is unlikely to achieve the required level of control or to 
protect the public health, welfare, or safety.
    (4) The plan may provide that if a source or modification fails to 
meet the required level of continuous emissions reduction within the 
specified time period, or if the approval is withdrawn in accordance 
with paragraph (s)(3) of this section, the reviewing authority may allow 
the source or modification up to an additional 3 years to meet the 
requirement for the application of best available control technology 
through use of a demonstrated system of control.

(Secs. 101(b)(1), 110, 160-169, 171-178, and 301(a), Clean Air Act, as 
amended (42 U.S.C. 7401(b)(1), 7410, 7470-7479, 7501-7508, and 7601(a)); 
sec. 129(a), Clean Air Act Amendments of 1977 (Pub. L. 95-95, 91 Stat. 
685 (Aug. 7, 1977)))

[43 FR 26382, June 19, 1978]

    Editorial Note: For Federal Register citations affecting 
Sec. 51.166, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



               Subpart J--Ambient Air Quality Surveillance

    Authority: Secs. 110, 301(a), 313, 319, Clean Air Act (42 U.S.C. 
7410, 7601(a), 7613, 7619).



Sec. 51.190  Ambient air quality monitoring requirements.

    The requirements for monitoring ambient air quality for purposes of 
the plan are located in subpart C of part 58 of this chapter.

[44 FR 27569, May 10, 1979]



                     Subpart K--Source Survelliance

    Source: 51 FR 40673, Nov. 7, 1986, unless otherwise noted.



Sec. 51.210  General.

    Each plan must provide for monitoring the status of compliance with 
any rules and regulations that set forth any portion of the control 
strategy. Specifically, the plan must meet the requirements of this 
subpart.



Sec. 51.211  Emission reports and recordkeeping.

    The plan must provide for legally enforceable procedures for 
requiring owners or operators of stationary sources to maintain records 
of and periodically report to the State--
    (a) Information on the nature and amount of emissions from the 
stationary sources; and
    (b) Other information as may be necessary to enable the State to 
determine whether the sources are in compliance with applicable portions 
of the control strategy.

[[Page 777]]



Sec. 51.212  Testing, inspection, enforcement, and complaints.

    The plan must provide for--
    (a) Periodic testing and inspection of stationary sources; and
    (b) Establishment of a system for detecting violations of any rules 
and regulations through the enforcement of appropriate visible emission 
limitations and for investigating complaints.
    (c) Enforceable test methods for each emission limit specified in 
the plan. As an enforceable method, States may use:
    (1) Any of the appropriate methods in appendix M to this part, 
Recommended Test Methods for State Implementation Plans; or
    (2) An alternative method following review and approval of that 
method by the Administrator; or
    (3) Any appropriate method in appendix A to 40 CFR part 60.

[51 FR 40673, Nov. 7, 1986, as amended at 55 FR 14249, Apr. 17, 1990]



Sec. 51.213  Transportation control measures.

    (a) The plan must contain procedures for obtaining and maintaining 
data on actual emissions reductions achieved as a result of implementing 
transportation control measures.
    (b) In the case of measures based on traffic flow changes or 
reductions in vehicle use, the data must include observed changes in 
vehicle miles traveled and average speeds.
    (c) The data must be maintained in such a way as to facilitate 
comparison of the planned and actual efficacy of the transportation 
control measures.

[61 FR 30163, June 14, 1996]



Sec. 51.214  Continuous emission monitoring.

    (a) The plan must contain legally enforceable procedures to--
    (1) Require stationary sources subject to emission standards as part 
of an applicable plan to install, calibrate, maintain, and operate 
equipment for continuously monitoring and recording emissions; and
    (2) Provide other information as specified in appendix P of this 
part.
    (b) The procedures must--
    (1) Identify the types of sources, by source category and capacity, 
that must install the equipment; and
    (2) Identify for each source category the pollutants which must be 
monitored.
    (c) The procedures must, as a minimum, require the types of sources 
set forth in appendix P of this part to meet the applicable requirements 
set forth therein.
    (d)(1) The procedures must contain provisions that require the owner 
or operator of each source subject to continuous emission monitoring and 
recording requirements to maintain a file of all pertinent information 
for at least two years following the date of collection of that 
information.
    (2) The information must include emission measurements, continuous 
monitoring system performance testing measurements, performance 
evaluations, calibration checks, and adjustments and maintenance 
performed on such monitoring systems and other reports and records 
required by appendix P of this part.
    (e) The procedures must require the source owner or operator to 
submit information relating to emissions and operation of the emission 
monitors to the State to the extent described in appendix P at least as 
frequently as described therein.
    (f) (1) The procedures must provide that sources subject to the 
requirements of paragraph (c) of this section must have installed all 
necessary equipment and shall have begun monitoring and recording within 
18 months after either--
    (i) The approval of a State plan requiring monitoring for that 
source; or
    (ii) Promulgation by the Agency of monitoring requirements for that 
source.
    (2) The State may grant reasonable extensions of this period to 
sources that--
    (i) Have made good faith efforts to purchases, install, and begin 
the monitoring and recording of emission data; and
    (ii) Have been unable to complete the installation within the 
period.

[[Page 778]]



                       Subpart L--Legal Authority

    Source: 51 FR 40673, Nov. 7, 1986, unless otherwise noted.



Sec. 51.230  Requirements for all plans.

    Each plan must show that the State has legal authority to carry out 
the plan, including authority to:
    (a) Adopt emission standards and limitations and any other measures 
necessary for attainment and maintenance of national standards.
    (b) Enforce applicable laws, regulations, and standards, and seek 
injunctive relief.
    (c) Abate pollutant emissions on an emergency basis to prevent 
substantial endangerment to the health of persons, i.e., authority 
comparable to that available to the Administrator under section 305 of 
the Act.
    (d) Prevent construction, modification, or operation of a facility, 
building, structure, or installation, or combination thereof, which 
directly or indirectly results or may result in emissions of any air 
pollutant at any location which will prevent the attainment or 
maintenance of a national standard.
    (e) Obtain information necessary to determine whether air pollution 
sources are in compliance with applicable laws, regulations, and 
standards, including authority to require recordkeeping and to make 
inspections and conduct tests of air pollution sources.
    (f) Require owners or operators of stationary sources to install, 
maintain, and use emission monitoring devices and to make periodic 
reports to the State on the nature and amounts of emissions from such 
stationary sources; also authority for the State to make such data 
available to the public as reported and as correlated with any 
applicable emission standards or limitations.



Sec. 51.231  Identification of legal authority.

    (a) The provisions of law or regulation which the State determines 
provide the authorities required under this section must be specifically 
identified, and copies of such laws or regulations be submitted with the 
plan.
    (b) The plan must show that the legal authorities specified in this 
subpart are available to the State at the time of submission of the 
plan.
    (c) Legal authority adequate to fulfill the requirements of 
Sec. 51.230 (e) and (f) of this subpart may be delegated to the State 
under section 114 of the Act.



Sec. 51.232  Assignment of legal authority to local agencies.

    (a) A State government agency other than the State air pollution 
control agency may be assigned responsibility for carrying out a portion 
of a plan if the plan demonstrates to the Administrator's satisfaction 
that the State governmental agency has the legal authority necessary to 
carry out the portion of plan.
    (b) The State may authorize a local agency to carry out a plan, or 
portion thereof, within such local agency's jurisdiction if--
    (1) The plan demonstrates to the Administrator's satisfaction that 
the local agency has the legal authority necessary to implement the plan 
or portion of it; and
    (2) This authorization does not relieve the State of responsibility 
under the Act for carrying out such plan, or portion thereof.



                Subpart M--Intergovernmental Consultation

    Authority: Secs. 110, 121, 174(a), 301(a), Clean Air Act, as amended 
(42 U.S.C. 7410, 7421, 7504, and 7601(a)).

    Source: 44 FR 35179, June 18, 1979, unless otherwise noted.

                           Agency Designation



Sec. 51.240  General plan requirements.

    Each State implementation plan must identify organizations, by 
official title, that will participate in developing, implementing, and 
enforcing the plan and the responsibilities of such organizations. The 
plan shall include any related agreements or memoranda of understanding 
among the organizations.



Sec. 51.241  Nonattainment areas for carbon monoxide and ozone.

    (a) For each AQCR or portion of an AQCR in which the national 
primary

[[Page 779]]

standard for carbon monoxide or ozone will not be attained by July 1, 
1979, the Governor (or Governors for interstate areas) shall certify, 
after consultation with local officials, the organization responsible 
for developing the revised implementation plan or portions thereof for 
such AQCR.
    (b)-(f) [Reserved]

[44 FR 35179, June 18, 1979, as amended at 48 FR 29302, June 24, 1983; 
60 FR 33922, June 29, 1995; 61 FR 16060, Apr. 11, 1996]
Sec. 51.242  [Reserved]



                     Subpart N--Compliance Schedules

    Source: 51 FR 40673, Nov. 7, 1986, unless otherwise noted.



Sec. 51.260  Legally enforceable compliance schedules.

    (a) Each plan shall contain legally enforceable compliance schedules 
setting forth the dates by which all stationary and mobile sources or 
categories of such sources must be in compliance with any applicable 
requirement of the plan.
    (b) The compliance schedules must contain increments of progress 
required by Sec. 51.262 of this subpart.



Sec. 51.261  Final compliance schedules.

    (a) Unless EPA grants an extension under subpart R, compliance 
schedules designed to provide for attainment of a primary standard 
must--
    (1) Provide for compliance with the applicable plan requirements as 
soon as practicable; or
    (2) Provide for compliance no later than the date specified for 
attainment of the primary standard under;
    (b) Unless EPA grants an extension under subpart R, compliance 
schedules designed to provide for attainment of a secondary standard 
must--
    (1) Provide for compliance with the applicable plan requirements in 
a reasonable time; or
    (2) Provide for compliance no later than the date specified for the 
attainment of the secondary standard under Sec. 51.110(c).



Sec. 51.262  Extension beyond one-year.

    (a) Any compliance schedule or revision of it extending over a 
period of more than one year from the date of its adoption by the State 
agency must provide for legally enforceable increments of progress 
toward compliance by each affected source or category of sources. The 
increments of progress must include--
    (1) Each increment of progress specified in Sec. 51.100(q); and
    (2) Additional increments of progress as may be necessary to permit 
close and effective supervision of progress toward timely compliance.
    (b) [Reserved]



           Subpart O--Miscellaneous Plan Content Requirements

    Authority: Secs. 110, 301(a), 313, 319, Clean Air Act (42 U.S.C. 
7410, 7601(a), 7613, 7619).



Sec. 51.280  Resources.

    Each plan must include a description of the resources available to 
the State and local agencies at the date of submission of the plan and 
of any additional resources needed to carry out the plan during the 5-
year period following its submission. The description must include 
projections of the extent to which resources will be acquired at 1-, 3-, 
and 5-year intervals.

[51 FR 40674, Nov. 7, 1986]



Sec. 51.281  Copies of rules and regulations.

    Emission limitations and other measures necessary for attainment and 
maintenance of any national standard, including any measures necessary 
to implement the requirements of subpart L must be adopted as rules and 
regulations enforceable by the State agency. Copies of all such rules 
and regulations must be submitted with the plan. Submittal of a plan 
setting forth proposed rules and regulations will not satisfy the 
requirements of this section nor will it be considered a timely 
submittal.

[51 FR 40674, Nov. 7, 1986]


[[Page 780]]





Sec. 51.285  Public notification.

    By March 1, 1980, the State shall submit a plan revision that 
contains provisions for:
    (a) Notifying the public on a regular basis of instances or areas in 
which any primary standard was exceeded during any portion of the 
preceeding calendar year,
    (b) Advising the public of the health hazards associated with such 
an exceedance of a primary standard, and
    (c) Increasing public awareness of:
    (1) Measures which can be taken to prevent a primary standard from 
being exceeded, and
    (2) Ways in which the public can participate in regulatory and other 
efforts to improve air quality.

[44 FR 27569, May 10, 1979]



                   Subpart P--Protection of Visibility

    Authority: Secs. 110, 114, 121, 160-169, 169A, and 301 of the Clean 
Air Act, (42 U.S.C. 7410, 7414, 7421, 7470-7479, and 7601).

    Source: 45 FR 80089, Dec. 2, 1980, unless otherwise noted.



Sec. 51.300  Purpose and applicability.

    (a) Purpose. The primary purposes of this subpart are (1) to require 
States to develop programs to assure reasonable progress toward meeting 
the national goal of preventing any future, and remedying and existing, 
impairment of visibility in mandatory Class I Federal areas which 
impairment results from man-made air pollution, and (2) to establish 
necessary additional procedures for new source permit applicants, 
States, and Federal Land Managers to use in conducting the visibility 
impact analysis required for new sources under Sec. 51.24.
    (b) Applicability. (1) The provisions of this subpart are applicable 
to:
    (i) Each State which has a mandatory Class I Federal area identified 
in part 81, subpart D, of this title, and (ii) each State in which there 
is any source the emissions from which may reasonably be anticipated to 
cause or contribute to any impairment of visibility in any such area.
    (2) The provisions of this subpart are applicable to the following 
States:
    (i) Alabama
    (ii) Alaska
    (iii) Arizona
    (iv) Arkansas
    (v) California
    (vi) Colorado
    (vii) Florida
    (viii) Georgia
    (ix) Hawaii
    (x) Idaho
    (xi) Kentucky
    (xii) Louisiana
    (xiii) Maine
    (xiv) Michigan
    (xv) Minnesota
    (xvi) Missouri
    (xvii) Montana
    (xviii) Nevada
    (xix) New Hampshire
    (xx) New Jersey
    (xxi) New Mexico
    (xxii) North Carolina
    (xxiii) North Dakota
    (xxiv) Oklahoma
    (xxv) Oregon
    (xxvi) South Carolina
    (xxvii) South Dakota
    (xxviii) Tennessee
    (xxix) Texas
    (xxx) Utah
    (xxxi) Vermont
    (xxxii) Virginia
    (xxxiii) Virgin Islands
    (xxxiv) Washington
    (xxxv) West Virginia
    (xxxvi) Wyoming



Sec. 51.301  Definitions.

    For purposes of this subpart:
    (a) Adverse impact on visibility means, for purposes of section 307, 
visibility impairment which interferes with the management, protection, 
preservation, or enjoyment of the visitor's visual experience of the 
Federal Class I area. This determination must be made on a case-by-case 
basis taking into account the geographic extent, intensity, duration, 
frequency and time of visibility impairments, and how these factors 
correlate with (1) times of visitor use of the Federal Class I area, and 
(2) the frequency and timing of natural conditions that reduce 
visibility. This term does not include effects on integral vistas.
    (b) Agency means the U.S. Environmental Protection Agency.
    (c) Best Available Retrofit Technology (BART) means an emission 
limitation based on the degree of reduction

[[Page 781]]

achievable through the application of the best system of continuous 
emission reduction for each pollutant which is emitted by an existing 
stationary facility. The emission limitation must be established, on a 
case-by-case basis, taking into consideration the technology available, 
the costs of compliance, the energy and nonair quality environmental 
impacts of compliance, any pollution control equipment in use or in 
existence at the source, the remaining useful life of the source, and 
the degree of improvement in visibility which may reasonably be 
anticipated to result from the use of such technology.
    (d) Building, structure, or facility means all of the pollutant-
emitting activities which belong to the same industrial grouping, are 
located on one or more contiguous or adjacent properties, and are under 
the control of the same person (or persons under common control). 
Pollutant-emitting activities must be considered as part of the same 
industrial grouping if they belong to the same Major Group (i.e., which 
have the same two-digit code) as described in the Standard Industrial 
Classification Manual, 1972 as amended by the 1977 Supplement (U.S. 
Government Printing Office stock numbers 4101-0066 and 003-005-00176-0 
respectively).
    (e) Existing stationary facility means any of the following 
stationary sources of air pollutants, including any reconstructed 
source, which was not in operation prior to August 7, 1962, and was in 
existence on August 7, 1977, and has the potential to emit 250 tons per 
year or more of any air pollutant. In determining potential to emit, 
fugitive emissions, to the extent quantifiable, must be counted.
    (1) Fossil-fuel fired steam electric plants of more than 250 million 
British thermal units per hour heat input,
    (2) Coal cleaning plants (thermal dryers),
    (3) Kraft pulp mills,
    (4) Portland cement plants,
    (5) Primary zinc smelters,
    (6) Iron and steel mill plants,
    (7) Primary aluminum ore reduction plants,
    (8) Primary copper smelters,
    (9) Municipal incinerators capable of charging more than 250 tons of 
refuse per day,
    (10) Hydrofluoric, sulfuric, and nitric acid plants,
    (11) Petroleum refineries,
    (12) Lime plants,
    (13) Phosphate rock processing plants,
    (14) Coke oven batteries,
    (15) Sulfur recovery plants,
    (16) Carbon black plants (furnace process),
    (17) Primary lead smelters,
    (18) Fuel conversion plants,
    (19) Sintering plants,
    (20) Secondary metal production facilities,
    (21) Chemical process plants,
    (22) Fossil-fuel boilers of more than 250 million British thermal 
units per hour heat input,
    (23) Petroleum storage and transfer facilities with a capacity 
exceeding 300,000 barrels,
    (24) Taconite ore processing facilities,
    (25) Glass fiber processing plants, and
    (26) Charcoal production facilities.
    (f) Federal Class I area means any Federal land that is classified 
or reclassified Class I.
    (g) Federal Land Manager means the Secretary of the department with 
authority over the Federal Class I area or, with respect to Roosevelt-
Campobello International Park, the Chairman of the Roosevelt-Campobello 
International Park Commission.
    (h) Federally enforceable means all limitations and conditions which 
are enforceable by the Administrator under the Clean Air Act including 
those requirements developed pursuant to parts 60 and 61 of this title, 
requirements within any applicable State Implementation Plan, and any 
permit requirements established pursuant to Sec. 52.21 of this chapter 
or under regulations approved pursuant to part 51, 52, or 60 of this 
title.
    (i) Fixed capital cost means the capital needed to provide all of 
the depreciable components.
    (j) Fugitive Emissions means those emissions which could not 
reasonably pass through a stack, chimney, vent, or other functionally 
equivalent opening.

[[Page 782]]

    (k) In existence means that the owner or operator has obtained all 
necessary preconstruction approvals or permits required by Federal, 
State, or local air pollution emissions and air quality laws or 
regulations and either has (1) begun, or caused to begin, a continuous 
program of physical on-site construction of the facility or (2) entered 
into binding agreements or contractual obligations, which cannot be 
cancelled or modified without substantial loss to the owner or operator, 
to undertake a program of construction of the facility to be completed 
in a reasonable time.
    (l) Installation means an identifiable piece of process equipment.
    (m) In operation means engaged in activity related to the primary 
design function of the source.
    (n) Integral vista means a view perceived from within the mandatory 
Class I Federal area of a specific landmark or panorama located outside 
the boundary of the mandatory Class I Federal area.
    (o) Mandatory Class I Federal Area means any area identified in part 
81, subpart D of this title.
    (p) Major Stationary Source and major modification mean major 
stationary source and major modification, respectively, as defined in 
Sec. 51.24.
    (q) Natural conditions includes naturally occurring phenomena that 
reduce visibility as measured in terms of visual range, contrast, or 
coloration.
    (r) Potential to emit means the maximum capacity of a stationary 
source to emit a pollutant under its physical and operational design. 
Any physical or operational limitation on the capacity of the source to 
emit a pollutant including air pollution control equipment and 
restrictions on hours of operation or on the type or amount of material 
combusted, stored, or processed, shall be treated as part of its design 
if the limitation or the effect it would have on emissions is federally 
enforceable. Secondary emissions do not count in determining the 
potential to emit of a stationary source.
    (s) Reasonably attributable means attributable by visual observation 
or any other technique the State deems appropriate.
    (t) Reconstruction will be presumed to have taken place where the 
fixed capital cost of the new component exceeds 50 percent of the fixed 
capital cost of a comparable entirely new source. Any final decision as 
to whether reconstruction has occurred must be made in accordance with 
the provisions of Sec. 60.15 (f) (1) through (3) of this title.
    (u) Secondary emissions means emissions which occur as a result of 
the construction or operation of an existing stationary facility but do 
not come from the existing stationary facility. Secondary emissions may 
include, but are not limited to, emissions from ships or trains coming 
to or from the existing stationary facility.
    (v) Significant impairment means, for purposes of section 303, 
visibility impairment which, in the judgment of the Administrator, 
interferes with the management, protection, preservation, or enjoyment 
of the visitor's visual experience of the mandatory Class I Federal 
area. This determination must be made on a case-by-case basis taking 
into account the geographic extent, intensity, duration, frequency and 
time of the visibility impairment, and how these factors correlate with 
(1) times of visitor use of the mandatory Class I Federal area, and (2) 
the frequency and timing of natural conditions that reduce visibility.
    (w) Stationary Source means any building, structure, facility, or 
installation which emits or may emit any air pollutant.
    (x) Visibility impairment means any humanly perceptible change in 
visibility (visual range, contrast, coloration) from that which would 
have existed under natural conditions.
    (y) Visibility in any mandatory Class I Federal area includes any 
integral vista associated with that area.



Sec. 51.302  Implementation control strategies.

    (a) Plan Revision Procedures. (1) Each State identified in section 
300(b)(2) must submit, no later than nine months from the date of 
promulgation of this regulation, an implementation plan revision meeting 
the requirements of this subpart.
    (2) (i) The State, prior to adoption of any implementation plan 
required by this subpart, must conduct one or more

[[Page 783]]

public hearings on such plan in accordance with Sec. 51.4.
    (ii) In addition to the requirements in Sec. 51.4, the State must 
provide written notification of such hearings to each affected Federal 
Land Manager, and other affected States, and must state where the public 
can inspect a summary prepared by the Federal Land Managers of their 
conclusions and recommendations, if any, on the proposed plan.
    (3) Submission of plans as required by this subpart must be 
conducted in accordance with the procedures in Sec. 51.5.
    (b) State and Federal Land Manager Coordination. (1) The State must 
identify to the Federal Land Managers, in writing and within 30 days of 
the date of promulgation of these regulations, the title of the official 
to which the Federal Land Manager of any mandatory Class I Federal area 
can submit a recommendation on the implementation of this subpart 
including, but not limited to:
    (i) A list of integral vistas that are to be listed by the State for 
the purpose of implementing section 304,
    (ii) Identification of impairment of visibility in any mandatory 
Class I Federal area(s), and
    (iii) Identification of elements for inclusion in the visibility 
monitoring strategy required by section 305.
    (2) The State must provide opportunity for consultation, in person 
and at least 60 days prior to holding any public hearing on the plan, 
with the Federal Land Manager on the proposed SIP revision required by 
this subpart. This consultation must include the opportunity for the 
affected Federal Land Managers to discuss their:
    (i) Assessment of impairment of visibility in any mandatory Class I 
Federal area, and
    (ii) Recommendations on the development of the long-term strategy.
    (3) The plan must provide procedures for continuing consultation 
between the State and Federal Land Manager on the implementation of the 
visibility protection program required by this subpart.
    (c) General Plan Requirements. (1) The affected Federal Land Manager 
may certify to the State, at any time, that there exists impairment of 
visibility in any mandatory Class I Federal area.
    (2) The plan must contain:
    (i) A long-term (10-15 years) strategy, as specified in section 305 
and section 306, including such emission limitations, schedules of 
compliance, and such other measures including schedules for the 
implementation of the elements of the long-term strategy as may be 
necessary to make reasonable progress toward the national goal specified 
in section 300(a).
    (ii) An assessment of visibility impairment and a discussion of how 
each element of the plan relates to the preventing of future or 
remedying of existing impairment of visibility in any mandatory Class I 
Federal area within the State.
    (iii) Emission limitations representing BART and schedules for 
compliance with BART for each existing stationary facility identified 
according to paragraph (c)(4) of this section.
    (3) The plan must require each source to maintain control equipment 
required by this subpart and establish procedures to ensure such control 
equipment is properly operated and maintained.
    (4) For any existing visibility impairment the Federal Land Manager 
certifies to the State under paragraph (c)(1) of this section, at least 
6 months prior to plan submission:
    (i) The State must identify and analyze for BART each existing 
stationary facility which may reasonably be anticipated to cause or 
contribute to impairment of visibility in any mandatory Class I Federal 
area where the impairment in the mandatory Class I Federal area is 
reasonably attributable to that existing stationary facility. The State 
need not consider any integral vista the Federal Land Manager did not 
identify pursuant to section 304(b) at least 6 months before plan 
submission.
    (ii) If the State determines that technologicial or economic 
limitations on the applicability of measurement methodology to a 
particular existing stationary facility would make the imposition of an 
emission standard infeasible it may instead prescribe a design, 
equipment, work practice, or other operational standard, or combination

[[Page 784]]

thereof, to require the application of BART. Such standard, to the 
degree possible, is to set forth the emission reduction to be achieved 
by implementation of such design, equipment, work practice or operation, 
and must provide for compliance by means which achieve equivalent 
results.
    (iii) BART must be determined for fossil-fuel fired generating 
plants having a total generating capacity in excess of 750 megawatts 
pursuant to ``Guidelines for Determining Best Available Retrofit 
Technology for Coal-fired Power Plants and Other Existing Stationary 
Facilities'' (1980), which is incorporated by reference, exclusive of 
appendix E, which was published in the Federal Register on February 6, 
1980 (45 FR 8210). It is EPA publication No. 450/3-80-009b and is for 
sale from the U.S. Department of Commerce, National Technical 
Information Service, 5285 Port Royal Road, Springfield, Virginia 22161. 
It is also available for inspection at the Office of the Federal 
Register Information Center, 800 North Capitol NW., suite 700, 
Washington, DC.
    (iv) The plan must require that each existing stationary facility 
required to install and operate BART do so as expeditiously as 
practicable but in no case later than five years after plan approval.
    (v) The plan must provide for a BART analysis of any existing 
stationary facility that might cause or contribute to impairment of 
visibility in any mandatory Class I Federal area identified under this 
paragraph (c)(4) at such times, as determined by the Administrator, as 
new technology for control of the pollutant becomes reasonably available 
if:
    (A) The pollutant is emitted by that existing stationary facility,
    (B) Controls representing BART for the pollutant have not previously 
been required under this subpart, and
    (C) The impairment of visibility in any mandatory Class I Federal 
area is reasonably attributable to the emissions of that pollutant.

[45 FR 80089, Dec. 2, 1980, as amended at 57 FR 40042, Sept. 1, 1992]



Sec. 51.303  Exemptions from control.

    (a) (1) Any existing stationary facility subject to the requirement 
under section 302 to install, operate, and maintain BART may apply to 
the Administrator for an exemption from that requirement.
    (2) An application under this section must include all available 
documentation relevant to the impact of the source's emissions on 
visibility in any mandatory Class I Federal area and a demonstration by 
the existing stationary facility that it does not or will not, by itself 
or in combination with other sources, emit any air pollutant which may 
be reasonably anticipated to cause or contribute to a significant 
impairment of visibility in any mandatory Class I Federal area.
    (b) Any fossil-fuel fired power plant with a total generating 
capacity of 750 megawatts or more may receive an exemption from BART 
only if the owner or operator of such power plant demonstrates to the 
satisfaction of the Administrator that such power plant is located at 
such a distance from all mandatory Class I Federal areas that such power 
plant does not or will not, by itself or in combination with other 
sources, emit any air pollutant which may reasonably be anticipated to 
cause or contribute to significant impairment of visibility in any such 
mandatory Class I Federal area.
    (c) Application under this section 303 must be accompanied by a 
written concurrence from the State with regulatory authority over the 
source.
    (d) The existing stationary facility must give prior written notice 
to all affected Federal Land Managers of any application for exemption 
under this section 303.
    (e) The Federal Land Manager may provide an initial recommendation 
or comment on the disposition of such application. Such recommendation, 
where provided, must be part of the exemption application. This 
recommendation is not to be construed as the concurrence required under 
paragraph (h) of this section.
    (f) The Administrator, within 90 days of receipt of an application 
for exemption from control, will provide notice of receipt of an 
exemption application

[[Page 785]]

and notice of opportunity for public hearing on the application.
    (g) After notice and opportunity for public hearing, the 
Administrator may grant or deny the exemption. For purposes of judicial 
review, final EPA action on an application for an exemption under this 
section 303 will not occur until EPA approves or disapproves the State 
Implementation Plan revision.
    (h) An exemption granted by the Administrator under this section 303 
will be effective only upon concurrence by all affected Federal Land 
Managers with the Administrator's determination.



Sec. 51.304  Identification of integral vistas.

    (a) On or before December 31, 1985 the Federal Land Manager may 
identify any integral vista. The integral vista must be identified 
according to criteria the Federal Land Manager develops. These criteria 
must include, but are not limited to, whether the integral vista is 
important to the visitor's visual experience of the mandatory Class I 
Federal area. Adoption of criteria must be preceded by reasonable notice 
and opportunity for public comment on the proposed criteria.
    (b) The Federal Land Manager must notify the State of any integral 
vistas identified under paragraph (a) of this section, and the reasons 
therefor.
    (c) The State must list in its implementation plan any integral 
vista the Federal Land Manager identifies at least six months prior to 
plan submission, and must list in its implementation plan at its 
earliest opportunity, and in no case later than at the time of the 
periodic review of the SIP required by section 306(c), any integral 
vista the Federal Land Manager identifies after that time.
    (d) The State need not in its implementation plan list any integral 
vista the indentification of which was not made in accordance with the 
criteria in paragraph (a) of this section. In making this finding, the 
State must carefully consider the expertise of the Federal Land Manager 
in making the judgments called for by the criteria for identification. 
Where the State and the Federal Land Manager disagree on the 
identification of any integral vista, the State must give the Federal 
Land Manager an opportunity to consult with the Governor of the State.



Sec. 51.305  Monitoring.

    (a) The State must include in the plan a strategy for evaluating 
visibility in any mandatory Class I Federal area by visual observation 
or other appropriate monitoring techniques. Such strategy must take into 
account current and anticipated visibility monitoring research, the 
availability of appropriate monitoring techniques, and such guidance as 
is provided by the Agency.
    (b) The plan must provide for the consideration of available 
visibility data and must provide a mechanism for its use in decisions 
required by this subpart.



Sec. 51.306  Long-term strategy.

    (a) (1) Each plan must include a long-term (10-15 years) strategy 
for making reasonable progress toward the national goal specified in 
section 300(a). This strategy must cover any existing impairment the 
Federal Land Manager certifies to the State at least 6 months prior to 
plan submission, and any integral vista of which the Federal Land 
Manager notifies the State at least 6 months prior to plan submission.
    (2) A long-term strategy must be developed for each mandatory Class 
I Federal area located within the State and each mandatory Class I 
Federal area located outside the State which may be affected by sources 
within the State. This does not preclude the development of a single 
comprehensive plan for all such areas.
    (3) The plan must set forth with reasonable specificity why the 
long-term strategy is adequate for making reasonable progress toward the 
national visibility goal, including remedying existing and preventing 
future impairment.
    (b) The State must coordinate its long-term strategy for an area 
with existing plans and goals, including those provided by the affected 
Federal Land Managers, that may affect impairment of visibility in any 
mandatory Class I Federal area.

[[Page 786]]

    (c) The plan must provide for periodic review and revision, as 
appropriate, of the long-term strategy not less frequent than every 
three years. This review process must include consultation with the 
appropriate Federal Land Managers, and the State must provide a report 
to the public and the Administrator on progress toward the national 
goal. This report must include an assessment of:
    (1) The progress achieved in remedying existing impairment of 
visibility in any mandatory Class I Federal area;
    (2) The ability of the long-term strategy to prevent future 
impairment of visibility in any mandatory Class I Federal area;
    (3) Any change in visibility since the last such report, or, in the 
case of the first report, since plan approval;
    (4) Additional measures, including the need for SIP revisions, that 
may be necessary to assure reasonable progress toward the national 
visibility goal;
    (5) The progress achieved in implementing BART and meeting other 
schedules set forth in the long-term strategy;
    (6) The impact of any exemption granted under section 303;
    (7) The need for BART to remedy existing visibility impairment of 
any integral vista listed in the plan since the last such report, or, in 
the case of the first report, since plan approval.
    (d) The long-term strategy must provide for review of the impacts 
from any new major stationary source or major modifications on 
visibility in any mandatory Class I Federal area. This review of major 
stationary sources or major modifications must be in accordance with 
section 307, Sec. 51.24, Sec. 51.18 and any other binding guidance 
provided by the Agency insofar as these provisions pertain to protection 
of visibility in any mandatory Class I Federal areas.
    (e) The State must consider, at a minimum, the following factors 
during the development of its long-term strategy:
    (1) Emission reductions due to ongoing air pollution control 
programs,
    (2) Additional emission limitations and schedules for compliance,
    (3) Measures to mitigate the impacts of construction activities,
    (4) Source retirement and replacement schedules,
    (5) Smoke management techniques for agricultural and forestry 
management purposes including such plans as currently exist within the 
State for these purposes, and
    (6) Enforceability of emission limitations and control measures.
    (f) The plan must discuss the reasons why the above and other 
reasonable measures considered in the development of the long-term 
strategy were or were not adopted as part of the long-term strategy.
    (g) The State, in developing the long-term strategy, must take into 
account the effect of new sources, and the costs of compliance, the time 
necessary for compliance, the energy and nonair quality environmental 
impacts of compliance, and the remaining useful life of any affected 
existing source and equipment therein.



Sec. 51.307  New source review.

    (a) For purposes of new source review of any new major stationary 
source or major modification that would be constructed in an area that 
is designated attainment or unclassified under section 107(d)(1)(D) or 
(E) of the Clean Air Act, the State plan must, in any review under 
Sec. 51.24 with respect to visibility protection and analyses, provide 
for:
    (1) Written notification of all affected Federal Land Managers of 
any proposed new major stationary source or major modification that may 
affect visibility in any Federal Class I area. Such notification must be 
made in writing and include a copy of all information relevant to the 
permit application within 30 days of receipt of and at least 60 days 
prior to public hearing by the State on the application for permit to 
construct. Such notification must include an analysis of the anticipated 
impacts on visibility in any Federal Class I area,
    (2) Where the State requires or receives advance notification (e.g. 
early consultation with the source prior to submission of the 
application or notification of intent to monitor under Sec. 51.24) of a 
permit application of a source that may affect visibility the State must 
notify all affected Federal

[[Page 787]]

Land Managers within 30 days of such advance notification, and
    (3) Consideration of any analysis performed by the Federal Land 
Manager, provided within 30 days of the notification and analysis 
required by paragraph (a)(1) of this section, that such proposed new 
major stationary source or major modification may have an adverse impact 
on visibility in any Federal Class I area. Where the State finds that 
such an analysis does not demonstrate to the satisfaction of the State 
that an adverse impact will result in the Federal Class I area, the 
State must, in the notice of public hearing, either explain its decision 
or give notice as to where the explanation can be obtained.
    (b) The plan shall also provide for the review of any new major 
stationary source or major modification:
    (1) That may have an impact on any integral vista of a mandatory 
Class I Federal area, if it is identified in accordance with section 304 
by the Federal Land Manager at least 12 months before submission of a 
complete permit application, except where the Federal Land Manager has 
provided notice and opportunity for public comment on the integral vista 
in which case the review must include impacts on any integral vista 
identified at least 6 months prior to submission of a complete permit 
application, unless the State determines under section 304(d) that the 
identification was not in accordance with the identification criteria, 
or
    (2) That proposes to locate in an area classified as nonattainment 
under section 107(d)(1)(A), (B), or (C) of the Clean Air Act that may 
have an impact on visibility in any mandatory Class I Federal area.
    (c) Review of any major stationary source or major modification 
under paragraph (b) of this section, shall be conducted in accordance 
with paragraph (a) of this section, and Sec. 51.24(o), (p) (1) through 
(2), and (q). In conducting such reviews the State must ensure that the 
source's emissions will be consistent with making reasonable progress 
toward the national visibility goal referred to in section 300(a). The 
State may take into account the costs of compliance, the time necessary 
for compliance, the energy and nonair quality environmental impacts of 
compliance, and the useful life of the source.
    (d) The State may require monitoring of visibility in any Federal 
Class I area near the proposed new stationary source or major 
modification for such purposes and by such means as the State deems 
necessary and appropriate.



                           Subpart Q--Reports

    Authority: Secs. 110, 301(a), 313, 319, Clean Air Act (42 U.S.C. 
7410, 7601(a), 7613, 7619).

    Source: 44 FR 27569, May 10, 1979, unless otherwise noted.

                       Air Quality Data Reporting



Sec. 51.320  Annual air quality data report.

    The requirements for reporting air quality data collected for 
purposes of the plan are located in subpart C of part 58 of this 
chapter.

               Source Emissions and State Action Reporting



Sec. 51.321  Annual source emissions and State action report.

    On an annual (calendar year) basis beginning with calendar year 
1979, the State agency shall report to the Administrator (through the 
appropriate Regional Office) information as specified in 
Sec. Sec. 51.323 through 51.326. Reports must be submitted by July 1 of 
each year for data collected and actions which took place during the 
period January 1 to December 31 of the previous year.



Sec. 51.322  Sources subject to emissions reporting.

    (a) Point sources subject to the annual emissions reporting 
requirements of Sec. 51.321 are defined as follows:
    (1) For particulate matter, PM10, sulfur oxides, VOC and 
nitrogen oxides, any facility that actually emits a total of 90.7 metric 
tons (100 tons) per year or more of any one pollutant. For particulate 
matter emissions, the reporting requirement ends with the reporting of 
calendar year 1987 emissions. For PM10 emissions, the reporting 
requirement begins with the reporting of calendar year 1988 emissions.

[[Page 788]]

    (2) For carbon monoxide, any facility that actually emits a total of 
907 metric tons (1000 tons) per year or more.
    (3) For lead or lead compounds measured as elemental lead, any 
facility that actually emits a total of 4.5 metric tons (5 tons) per 
year or more.
    (b) Annual emissions reporting requirements apply only to emissions 
of each pollutant from any individual emission point within the facility 
that emits:
    (1) For particulate matter, PM10, sulfur oxides, VOC and 
nitrogen oxides. 22.7 metric tons (25 tons) per year or more. For 
particulate matter, the reporting requirement ends with the reporting of 
calendar year 1987 emissions. For PM10, the reporting requirement 
begins with the reporting of calendar year 1988 emissions.
    (2) For carbon monoxide, 227 metric tons (250 tons) per year or 
more.
    (3) For lead or lead compounds measured as elemental lead, 4.5 
metric tons (5 tons) per year or more.

[44 FR 27569, May 10, 1979, as amended at 44 FR 65070, Nov. 9, 1979; 52 
FR 24714, July 1, 1987]



Sec. 51.323  Reportable emissions data and information.

    (a) The State shall submit in the annual report the following 
emissions data and information:
    (1) Emissions of particulate matter, sulfur oxides, carbon monoxide, 
nitrogen oxides, and VOC as specified by AEROS Users Manual, Vol. II 
(EPA 450/2-76-029, OAQPS No. 1.2-039) to be coded into the National 
Emissions Data System point source coding form,
    (2) Emissions of lead or lead compounds measured as elemental lead 
as specified by AEROS Users Manual, Vol. II (EPA 45/2-76-029, OAQPS No. 
1.2-039) to be coded into the Hazardous and Trace Emissions System 
points source coding forms, and
    (3) Emissions of PM10 as will be specified in a future 
guideline.
    (b) Such emissions data and information specified in paragraph (a) 
of this section must be submitted on either paper forms, punched cards, 
or magnetic tape in the format of the NEDS point source coding forms or 
the HATREMS point source coding forms as appropriate.
    (c) The emissions data and information specified by paragraph (a) of 
this section must be submitted in the annual report for any point source 
for which one or more of the following conditions occurs:
    (1) A source achieves compliance at any time within the reporting 
period with any regulation of an applicable plan,
    (2) A new or modified source receives approval to construct during 
the reporting period or begins operating during the reporting period,
    (3) A source ceases operations during the reporting period, or
    (4) A source's emissions have changed more than 5% from the most 
recently submitted emissions data.
    (d) If, as determined by the State and the Regional Administrator, 
the emissions from any point source have not changed more than 5% from 
the most recently submitted emissions data, the State shall update the 
year of record of the previously reported data and information specified 
by paragraph (a) of this section.

[44 FR 27569, May 10, 1979, as amended at 52 FR 24714, July 1, 1987]



Sec. 51.324  Progress in plan enforcement.

    (a) For each point source, the State shall report any achievement 
made during the reporting period of any increment of progress of 
compliance schedules required by:
    (1) The applicable plan, or
    (2) Any enforcement order or other State action required to be 
submitted pursuant to Sec. 51.327.
    (b) For each point source, the State shall report any enforcement 
action taken during the reporting period and not submitted under 
Sec. 51.327 which results in civil or criminal penalties.



Sec. 51.326  Reportable revisions.

    The State shall identify and describe all substantive plan revisions 
during the reporting period of the applicable plan other than revisions 
to rules and regulations or compliance schedules submitted in accordance 
with Sec. 51.6(d). Substantive revisions shall include but are not 
limited to changes in stack-test procedures for determining compliance 
with applicable regulations, modifications in the projected total

[[Page 789]]

manpower needs to carry out the approved plan, and all changes in 
responsibilities given to local agencies to carry out various portions 
of the plan.



Sec. 51.327  Enforcement orders and other State actions.

    (a) Any State enforcement order, including any State court order, 
must be submitted to the Administrator within 60 days of its issuance or 
adoption by the State.
    (b) A State enforcement order or other State action must be 
submitted as a revision to the applicable implementation plan pursuant 
to Sec. 51.104 and approved by the Administrator in order to be 
considered a revision to such plan.

[36 FR 22398, Nov. 25, 1971, as amended at 51 FR 40675, Nov. 7, 1986]
Sec. 51.328  [Reserved]



                          Subpart R--Extensions



Sec. 51.341  Request for 18-month extension.

    (a) Upon request of the State made in accordance with this section, 
the Administrator may, whenever he determines necessary, extend, for a 
period not to exceed 18 months, the deadline for submitting that portion 
of a plan that implements a secondary standard.
    (b) Any such request must show that attainment of the secondary 
standards will require emission reductions exceeding those which can be 
achieved through the application of reasonably available control 
technology.
    (c) Any such request for extension of the deadline with respect to 
any State's portion of an interstate region must be submitted jointly 
with requests for such extensions from all other States within the 
region or must show that all such States have been notified of such 
request.
    (d) Any such request must be submitted sufficiently early to permit 
development of a plan prior to the deadline in the event that such 
request is denied.

[51 FR 40675, Nov. 7, 1986]



         Subpart S--Inspection/Maintenance Program Requirements

    Source: 57 FR 52987, Nov. 5, 1992, unless otherwise noted.



Sec. 51.350  Applicability.

    Inspection/maintenance (I/M) programs are required in both ozone and 
carbon monoxide (CO) nonattainment areas, depending upon population and 
nonattainment classification or design value.
    (a) Nonattainment area classification and population criteria. (1) 
States or areas within an ozone transport region shall implement 
enhanced I/M programs in any metropolitan statistical area (MSA), or 
portion of an MSA, within the state or area with a 1990 population of 
100,000 or more as defined by the Office of Management and Budget (OMB) 
regardless of the area's attainment classification. In the case of a 
multi-state MSA, enhanced I/M shall be implemented in all ozone 
transport region portions if the sum of these portions has a population 
of 100,000 or more, irrespective of the population of the portion in the 
individual ozone transport region state or area.
    (2) Apart from those areas described in paragraph (a)(1) of this 
section, any area classified as serious or worse ozone nonattainment, or 
as moderate or serious CO nonattainment with a design value greater than 
12.7 ppm, and having a 1980 Bureau of Census-defined (Census-defined) 
urbanized area population of 200,000 or more, shall implement enhanced 
I/M in the 1990 Census-defined urbanized area.
    (3) Any area classified, as of November 5, 1992, as marginal ozone 
nonattainment or moderate CO nonattainment with a design value of 12.7 
ppm or less shall continue operating I/M programs that were part of an 
approved State Implementation Plan (SIP) as of November 15, 1990, and 
shall update those programs as necessary to meet the basic I/M program 
requirements of this subpart. Any such area required by the Clean Air 
Act, as in effect prior to November 15, 1990, as interpreted in EPA 
guidance, to have an I/M program shall also implement a basic I/M 
program. Serious, severe and extreme ozone areas and CO areas over 12.7 
ppm

[[Page 790]]

shall also continue operating existing I/M programs and shall upgrade 
such programs, as appropriate, pursuant to this subpart.
    (4) Any area classified as moderate ozone nonattainment, and not 
required to implement enhanced I/M under paragraph (a)(1) of this 
section, shall implement basic I/M in any 1990 Census-defined urbanized 
area with a population of 200,000 or more.
    (5) [Reserved]
    (6) If the boundaries of a moderate ozone nonattainment area are 
changed pursuant to section 107(d)(4)(A)(i)-(ii) of the Clean Air Act, 
such that the area includes additional urbanized areas with a population 
of 200,000 or more, then a basic I/M program shall be implemented in 
these additional urbanized areas.
    (7) If the boundaries of a serious or worse ozone nonattainment area 
or of a moderate or serious CO nonattainment area with a design value 
greater than 12.7 ppm are changed any time after enactment pursuant to 
section 107(d)(4)(A) such that the area includes additional urbanized 
areas, then an enhanced I/M program shall be implemented in the newly 
included 1990 Census-defined urbanized areas, if the 1980 Census-defined 
urban area population is 200,000 or more.
    (8) If a marginal ozone nonattainment area, not required to 
implement enhanced I/M under paragraph (a)(1) of this section, is 
reclassified to moderate, a basic I/M program shall be implemented in 
the 1990 Census-defined urbanized area(s) with a population of 200,000 
or more. If the area is reclassified to serious or worse, an enhanced I/
M program shall be implemented in the 1990 Census-defined urbanized 
area, if the 1980 Census-defined urban area population is 200,000 or 
more.
    (9) If a moderate ozone or CO nonattainment area is reclassified to 
serious or worse, an enhanced I/M program shall be implemented in the 
1990 Census-defined urbanized area, if the 1980 Census-defined 
population is 200,000 or more.
    (b) Extent of area coverage. (1) In an ozone transport region, the 
program shall entirely cover all counties within subject MSAs or subject 
portions of MSAs, as defined by OMB in 1990, except largely rural 
counties having a population density of less than 200 persons per square 
mile based on the 1990 Census can be excluded provided that at least 50% 
of the MSA population is included in the program. This provision does 
not preclude the voluntary inclusion of portions of an excluded rural 
county. Non-urbanized islands not connected to the mainland by roads, 
bridges, or tunnels may be excluded without regard to population.
    (2) Outside of ozone transport regions, programs shall nominally 
cover at least the entire urbanized area, based on the 1990 census. 
Exclusion of some urban population is allowed as long as an equal number 
of non-urban residents of the MSA containing the subject urbanized area 
are included to compensate for the exclusion.
    (3) Emission reduction benefits from expanding coverage beyond the 
minimum required urban area boundaries can be applied toward the 
reasonable further progress requirements or can be used for offsets, 
provided the covered vehicles are operated in the nonattainment area, 
but not toward the enhanced I/M performance standard requirement.
    (4) In a multi-state urbanized area with a population of 200,000 or 
more that is required under paragraph (a) of this section to implement 
I/M, any state with a portion of the area having a 1990 Census-defined 
population of 50,000 or more shall implement an I/M program. The other 
coverage requirements in paragraph (b) of this section shall apply in 
multi-state areas as well.
    (c) Requirements after attainment. All I/M programs shall provide 
that the program will remain effective, even if the area is redesignated 
to attainment status, until the state submits and EPA approves a 
maintenance plan, under section 175A, which convincingly demonstrates 
that the area can maintain the relevant standard for the maintenance 
period without benefit of the emission reductions attributable to the I/
M program. The state shall commit to fully implement and enforce the 
program throughout such period, and, at a minimum, for the purposes of 
SIP approval, legislation authorizing the program shall not sunset prior 
to the attainment deadline.

[[Page 791]]

    (d) SIP requirements. The SIP shall describe the applicable areas in 
detail and, consistent with Sec. 51.372 of this subpart, shall include 
the legal authority or rules necessary to establish program boundaries.

[57 FR 52987, Nov. 5, 1992, as amended at 60 FR 48034, Sept. 18, 1995]



Sec. 51.351  Enhanced I/M performance standard.

    (a) Enhanced I/M programs shall be designed and implemented to meet 
or exceed a minimum performance standard, which is expressed as emission 
levels in area-wide average grams per mile (gpm), achieved from highway 
mobile sources as a result of the program. The emission levels achieved 
by the state's program design shall be calculated using the most current 
version, at the time of submittal, of the EPA mobile source emission 
factor model or an alternative model approved by the Administrator, and 
shall meet the minimum performance standard both in operation and for 
SIP approval. Areas shall meet the performance standard for the 
pollutants which cause them to be subject to enhanced I/M requirements. 
In the case of ozone nonattainment areas subject to enhanced I/M and 
subject areas in the Ozone Transport Region, the performance standard 
must be met for both oxides of nitrogen (NOX) and volatile organic 
compounds (VOCs), except as provided in paragraph (d) of this section.
    (1) Network type. Centralized testing.
    (2) Start date. For areas with existing I/M programs, 1983. For 
areas newly subject, 1995.
    (3) Test frequency. Annual testing.
    (4) Model year coverage. Testing of 1968 and later vehicles.
    (5) Vehicle type coverage. Light duty vehicles, and light duty 
trucks, rated up to 8,500 pounds Gross Vehicle Weight Rating (GVWR).
    (6) Exhaust emission test type. Transient mass-emission testing on 
1986 and later model year vehicles using the IM240 driving cycle, two-
speed testing (as described in appendix B of this subpart S) of 1981-
1985 vehicles, and idle testing (as described in appendix B of this 
subpart S) of pre-1981 vehicles is assumed.
    (7) Emission standards. (i) Emission standards for 1986 through 1993 
model year light duty vehicles, and 1994 and 1995 light-duty vehicles 
not meeting Tier 1 emission standards, of 0.80 gpm hydrocarbons (HC), 20 
gpm CO, and 2.0 gpm NOx;
    (ii) Emission standards for 1986 through 1993 light duty trucks less 
than 6000 pounds gross vehicle weight rating (GVWR), and 1994 and 1995 
trucks not meeting Tier 1 emission standards, of 1.2 gpm HC, 20 gpm CO, 
and 3.5 gpm NOx;
    (iii) Emission standards for 1986 through 1993 light duty trucks 
greater than 6000 pounds GVWR, and 1994 and 1995 trucks not meeting Tier 
1 emission standards, of 1.2 gpm HC, 20 gpm CO, and 3.5 gpm NOx;
    (iv) Emission standards for 1994 and later light duty vehicles 
meeting Tier 1 emission standards of 0.70 gpm HC, 15 gpm CO, and 1.4 gpm 
NOx;
    (v) Emission standards for 1994 and later light duty trucks under 
6000 pounds GVWR and meeting Tier 1 emission standards of 0.70 gpm HC, 
15 gpm CO and 2.0 gpm NOX;
    (vi) Emission standards for 1994 and later light duty trucks greater 
than 6000 pounds GVWR and meeting Tier 1 emission standards of 0.80 gpm 
HC, 15 gpm CO and 2.0 gpm NOx;
    (vii) Emission standards for 1981-1985 model year vehicles of 1.2% 
CO, and 220 ppm HC for the idle, two-speed tests and loaded steady-state 
tests (as described in appendix B of this subpart S); and
    (viii) Maximum exhaust dilution measured as no less than 6% CO plus 
carbon dioxide (CO2) on vehicles subject to a steady-state test (as 
described in appendix B of this subpart S).
    (8) Emission control device inspections. Visual inspection of the 
catalyst and fuel inlet restrictor on all 1984 and later model year 
vehicles.
    (9) Evaporative system function checks. Evaporative system integrity 
(pressure) test on 1983 and later model year vehicles and an evaporative 
system transient purge test on 1986 and later model year vehicles.
    (10) Stringency. A 20% emission test failure rate among pre-1981 
model year vehicles.

[[Page 792]]

    (11) Waiver rate. A 3% waiver rate, as a percentage of failed 
vehicles.
    (12) Compliance rate. A 96% compliance rate.
    (13) Evaluation date. Enhanced I/M programs shall be shown to obtain 
the same or lower emission levels as the model program by 2000 for ozone 
nonattainment areas and 2001 for CO nonattainment areas, and for severe 
and extreme ozone nonattainment areas, on each applicable milestone and 
attainment deadline, thereafter. Milestones for NOx shall be the 
same as for ozone.
    (b) On-road testing. The performance standard shall include on-road 
testing of at least 0.5% of the subject vehicle population, or 20,000 
vehicles whichever is less, as a supplement to the periodic inspection 
required in paragraphs (f) and (g) of this section. Specific 
requirements are listed in Sec. 51.371 of this subpart.
    (c) On-board diagnostics (OBD). [Reserved]
    (d) Modeling requirements. Equivalency of the emission levels which 
will be achieved by the I/M program design in the SIP to those of the 
model program described in this section shall be demonstrated using the 
most current version of EPA's mobile source emission model, or an 
alternative approved by the Administrator, using EPA guidance to aid in 
the estimation of input parameters. States may adopt alternative 
approaches that meet this performance standard. States may do so through 
program design changes that affect normal I/M input parameters to the 
mobile source emission factor model, or through program changes (such as 
the accelerated retirement of high emitting vehicles) that reduce in-use 
mobile source emissions. If the Administrator finds, under section 
182(b)(1)(A)(i) of the Act pertaining to reasonable further progress 
demonstrations or section 182(f)(1) of the Act pertaining to provisions 
for major stationary sources, that NOx emission reductions are not 
beneficial in a given ozone nonattainment area, then NOx emission 
reductions are not required of the enhanced I/M program, but the program 
shall be designed to offset NOx increases resulting from the repair 
of HC and CO failures.
    (e) [Reserved]
    (f) High Enhanced Performance Standard. Except as provided in 
paragraph (g) of this section, the model program elements for the 
enhanced I/M performance standard shall be as follows:
    (1) Network type. Centralized testing.
    (2) Start date. For areas with existing I/M programs, 1983. For 
areas newly subject, 1995.
    (3) Test frequency. Annual testing.
    (4) Model year coverage. Testing of 1968 and later vehicles.
    (5) Vehicle type coverage. Light duty vehicles, and light duty 
trucks, rated up to 8,500 pounds Gross Vehicle Weight Rating (GVWR).
    (6) Exhaust emission test type. Transient mass-emission testing on 
1986 and later model year vehicles using the IM240 driving cycle, two-
speed testing (as described in appendix B of this subpart S) of 1981-
1985 vehicles, and idle testing (as described in appendix B of this 
subpart S) of pre-1981 vehicles is assumed.
    (7) Emission standards. (i) Emission standards for 1986 through 1993 
model year light duty vehicles, and 1994 and 1995 light-duty vehicles 
not meeting Tier 1 emission standards, of 0.80 gpm hydrocarbons (HC), 20 
gpm CO, and 2.0 gpm NOX;
    (ii) Emission standards for 1986 through 1993 light duty trucks less 
than 6000 pounds gross vehicle weight rating (GVWR), and 1994 and 1995 
trucks not meeting Tier 1 emission standards, of 1.2 gpm HC, 20 gpm CO, 
and 3.5 gpm NOX;
    (iii) Emission standards for 1986 through 1993 light duty trucks 
greater than 6000 pounds GVWR, and 1994 and 1995 trucks not meeting the 
Tier 1 emission standards, of 1.2 gpm HC, 20 gpm CO, and 3.5 gpm 
NOX;
    (iv) Emission standards for 1994 and later light duty vehicles 
meeting Tier 1 emission standards of 0.70 gpm HC, 15 gpm CO, and 1.4 gpm 
NOX;
    (v) Emission standards for 1994 and later light duty trucks under 
6000 pounds GVWR and meeting Tier 1 emission standards of 0.70 gpm HC, 
15 gpm CO, and 2.0 gpm NOX;
    (vi) Emission standards for 1994 and later light duty trucks greater 
than 6000 pounds GVWR and meeting Tier 1 emission standards of 0.80 gpm 
HC, 15 gpm CO and 2.5 gpm NOX;

[[Page 793]]

    (vii) Emission standards for 1981-1985 model year vehicles of 1.2% 
CO, and 220 gpm HC for the idle, two-speed tests and loaded steady-state 
tests (as described in appendix B of this subpart S); and
    (viii) Maximum exhaust dilution measured as no less than 6% CO plus 
carbon dioxide (CO2) on vehicles subject to a steady-state test (as 
described in appendix B of this subpart S); and
    (viii) Maximum exhaust dilution measured as no less than 6% CO plus 
carbon dioxide (CO2) on vehicles subject to a steady-state test (as 
described in appendix B of this subpart S).
    (8) Emission control device inspections. (i) Visual inspection of 
the catalyst and fuel inlet restrictor on all 1984 and later model year 
vehicles.
    (ii) Visual inspection of the positive crankcase ventilation valve 
on 1968 through 1971 model years, inclusive, and of the exhaust gas 
recirculation valve on 1972 through 1983 model year vehicles, inclusive.
    (9) Evaporative system function checks. Evaporative system integrity 
(pressure) test on 1983 and later model year vehicles and an evaporative 
system transient purge test on 1986 and later model year vehicles.
    (10) Stringency. A 20% emission test failure rate among pre-1981 
model year vehicles.
    (11) Waiver rate. A 3% waiver rate, as a percentage of failed 
vehicles.
    (12) Compliance rate. A 96% compliance rate.
    (13) Evaluation date. Enhanced I/M program areas shall be shown to 
obtain the same or lower emission levels as the model program described 
in this paragraph by 2000 for ozone nonattainment areas and 2001 for CO 
nonattainment areas, and for severe and extreme ozone nonattainment 
areas, on each applicable milestone and attainment deadline, thereafter. 
Milestones for NOX shall be the same as for ozone.
    (g) Alternate Low Enhanced I/M Performance Standard. An enhanced I/M 
area which is either not subject to or has an approved State 
Implementation Plan pursuant to the requirements of the Clean Air Act 
Amendments of 1990 for Reasonable Further Progress in 1996, and does not 
have a disapproved plan for Reasonable Further Progress for the period 
after 1996 or a disapproved plan for attainment of the air quality 
standards for ozone or CO, may select the alternate low enhanced I/M 
performance standard described below in lieu of the standard described 
in paragraph (f) of this section. The model program elements for this 
alternate low enhanced I/M performance standard are:
    (1) Network type. Centralized testing.
    (2) Start date. For areas with existing I/M programs, 1983. For 
areas newly subject, 1995.
    (3) Test frequency. Annual testing.
    (4) Model year coverage. Testing of 1968 and newer vehicles.
    (5) Vehicle type coverage. Light duty vehicles, and light duty 
trucks, rated up to 8,500 pounds GVWR.
    (6) Exhaust emission test type. Idle testing of all covered vehicles 
(as described in appendix B of subpart S).
    (7) Emission standards. Those specified in 40 CFR Part 85, Subpart 
W.
    (8) Emission control device inspections. Visual inspection of the 
positive crankcase ventilation valve on all 1968 through 1971 model year 
vehicles, inclusive, and of the exhaust gas recirculation valve on all 
1972 and newer model year vehicles.
    (9) Evaporative system function checks. None.
    (10) Stringency. A 20% emission test failure rate among pre-1981 
model year vehicles.
    (11) Waiver rate. A 3% waiver rate, as a percentage of failed 
vehicles.
    (12) Compliance rate. A 96% compliance rate.
    (13) Evaluation date. Enhanced I/M program areas subject to the 
provisions of this paragraph shall be shown to obtain the same or lower 
emission levels as the model program described in this paragraph by 2000 
for ozone nonattainment areas and 2001 for CO nonattainment areas, and 
for severe and extreme ozone nonattainment areas, on each applicable 
milestone and attainment deadline, thereafter. Milestones for NOx 
shall be the same as for ozone.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993; 59 
FR 32343, June 23, 1994; 60 FR 48035, Sept. 18, 1995]

[[Page 794]]



Sec. 51.352  Basic I/M performance standard.

    (a) Basic I/M programs shall be designed and implemented to meet or 
exceed a minimum performance standard, which is expressed as emission 
levels achieved from highway mobile sources as a result of the program. 
The performance standard shall be established using the following model 
I/M program inputs and local characteristics, such as vehicle mix and 
local fuel controls. Similarly, the emission reduction benefits of the 
state's program design shall be estimated using the most current version 
of the EPA mobile source emission model, and shall meet the minimum 
performance standard both in operation and for SIP approval.
    (1) Network type. Centralized testing.
    (2) Start date. For areas with existing I/M programs, 1983. For 
areas newly subject, 1994.
    (3) Test frequency. Annual testing.
    (4) Model year coverage. Testing of 1968 and later model year 
vehicles.
    (5) Vehicle type coverage. Light duty vehicles.
    (6) Exhaust emission test type. Idle test.
    (7) Emission standards. No weaker than specified in 40 CFR Part 85, 
Subpart W.
    (8) Emission control device inspections. None.
    (9) Stringency. A 20% emission test failure rate among pre-1981 
model year vehicles.
    (10) Waiver rate. A 0% waiver rate.
    (11) Compliance rate. A 100% compliance rate.
    (12) Evaluation date. Basic I/M programs shall be shown to obtain 
the same or lower emission levels as the model inputs by 1997 for ozone 
nonattainment areas and 1996 for CO nonattainment areas; and, for 
serious or worse ozone nonattainment areas, on each applicable milestone 
and attainment deadline, thereafter.
    (b) Oxides of nitrogen. Basic I/M testing in ozone nonattainment 
areas shall be designed such that no increase in NOx emissions 
occurs as a result of the program. If the Administrator finds, under 
section 182(b)(1)(A)(i) of the Act pertaining to reasonable further 
progress demonstrations or section 182(f)(1) of the Act pertaining to 
provisions for major stationary sources, that NOx emission 
reductions are not beneficial in a given ozone nonattainment area, then 
the basic I/M NOx requirement may be omitted. States shall 
implement any required NOx controls within 12 months of 
implementation of the program deadlines required in Sec. 51.373 of this 
subpart, except that newly implemented I/M programs shall include 
NOx controls from the start.
    (c) On-board diagnostics. [Reserved]
    (d) Modeling requirements. Equivalency of emission levels which will 
be achieved by the I/M program design in the SIP to those of the model 
program described in this section shall be demonstrated using the most 
current version of EPA's mobile source emission model and EPA guidance 
on the estimation of input parameters. Areas required to implement basic 
I/M programs shall meet the performance standard for the pollutants 
which cause them to be subject to basic requirements. Areas subject as a 
result of ozone nonattainment shall meet the standard for VOCs and shall 
demonstrate no NOx increase, as required in paragraph (b) of this 
section.



Sec. 51.353  Network type and program evaluation.

    Enhanced I/M programs shall be operated in a centralized test-only 
format, unless the state can demonstrate that a decentralized program is 
equally effective in achieving the enhanced I/M performance standard. 
Basic I/M programs can be centralized, decentralized, or a hybrid at the 
state's discretion, but shall be demonstrated to achieve the same 
emission reduction as the program described in Sec. 51.352 of this 
subpart.
    (a) Presumptive equivalency. A decentralized network consisting of 
stations that only perform official I/M testing (which may include 
safety-related inspections) and in which owners and employees of those 
stations, or companies owning those stations, are contractually or 
legally barred from engaging in motor vehicle repair or service, motor 
vehicle parts sales, and motor vehicle sale and leasing, either directly 
or indirectly, and are barred from referring vehicle owners to 
particular

[[Page 795]]

providers of motor vehicle repair services (except as provided in 
Sec. 51.369(b)(1) of this subpart) shall be considered equivalent to a 
centralized, test-only system. States may allow such stations to engage 
in the sale of refreshments for the use of employees and customers 
waiting at the station and may fulfill other functions typically carried 
out by the state such as renewal of vehicle registration and driver's 
licenses, or tax and fee collections.
    (b) Case-by-case equivalency. (1) Credits for test-and-repair 
networks, i.e., those not meeting the requirements of paragraph (a) of 
this section, are assumed to be 50% less than those for a test-only 
network for the tailpipe emission test, purge test, evaporative system 
integrity test, catalyst check, and gas cap check; and 75% less for the 
evaporative canister checks, PCV check, and air system checks. Smaller 
reductions in credits for the various test protocols may be claimed if a 
state can demonstrate to the satisfaction of the Administrator that 
based on past performance with the specific test-type and inspection 
standards employed, its test-and-repair system will exceed these levels. 
At a minimum, such a demonstration shall include:
    (i) Surveys that assess the effectiveness of repairs performed on 
vehicles that failed the tailpipe emission test and evaporative system 
tests;
    (ii) In programs including tampering checks, measurement of actual 
tampering rates, their change over time, and the change attributable to 
finding and fixing such tampering as opposed to deterrence effects; and
    (iii) The results of undercover surveys of inspector effectiveness 
as it relates to identifying vehicles that need repair.
    (2) In the case of hybrid systems, which may be implemented in basic
I/M areas, including both test-only and test-and-repair facilities, full 
credit shall apply to the portion of the fleet initially tested and 
subsequently retested at a test-only facility meeting the requirements 
of paragraph (a) of this section, and to the portion of the fleet 
initially tested and failed at a test-and-repair facility but 
subsequently passing a comprehensive retest at a test-only facility 
meeting those same requirements. The credit loss assumptions described 
in paragraph (b)(1) of this section shall apply to the portion of the 
fleet initially passed at a test-and-repair facility, and to the portion 
initially failed at a test-only facility and retested at a test-and-
repair facility.
    (3) Areas operating test-and-repair networks or hybrid networks may, 
in the future, claim greater effectiveness than described in paragraph 
(b)(1) of this section, if a demonstration of greater effectiveness is 
made to the satisfaction of the Administrator using the program 
evaluation protocol described in paragraph (c) of this section.
    (c) Program evaluation. Enhanced I/M programs shall include an 
ongoing evaluation to quantify the emission reduction benefits of the 
program, and to determine if the program is meeting the requirements of 
the Clean Air Act and this subpart.
    (1) The state shall report the results of the program evaluation on 
a biennial basis, starting two years after the initial start date of 
mandatory testing as required in Sec. 51.373 of this subpart.
    (2) The evaluation shall be considered in establishing actual 
emission reductions achieved from I/M for the purposes of satisfying the 
requirements of sections 182(g)(1) and 182(g)(2) of the Clean Air Act, 
relating to reductions in emissions and compliance demonstration.
    (3) The evaluation program shall consist, at a minimum, of those 
items described in paragraph (b)(1) of this section and mass emission 
test data using the procedure specified in Sec. 51.357(a)(11) of this 
subpart, or any other transient, mass emission test procedure approved 
as equivalent, and evaporative system checks, specified in 
Sec. 51.357(a)(9) and (10) of this subpart, for model years subject to 
those evaporative system test procedures. The test data shall be 
obtained from a representative, random sample, taken at the time of 
initial inspection (before repair), of at least 0.1 percent of the 
vehicles subject to inspection in a given year. Such vehicles shall 
receive a state administered or monitored IM240 mass emission test or 
equivalent, as specified in this paragraph (c)(3), at the time the 
initial test is due.

[[Page 796]]

    (4) The program evaluation test data shall be submitted to EPA and 
used by the state to calculate local fleet emission factors, to assess 
the effectiveness of the I/M program, and to determine if the 
performance standard is being met. EPA will update its emission factor 
model periodically to reflect the appropriate emission reduction 
effectiveness of program elements within Sec. 51.351 of this subpart 
based on actual performance.
    (d) SIP requirements. (1) The SIP shall include a description of the 
network to be employed, the required legal authority, and, in the case 
of areas making claims under paragraph (b) of this section, the required 
demonstration.
    (2) The SIP shall include a description of the evaluation schedule 
and protocol, the sampling methodology, the data collection and analysis 
system, the resources and personnel for evaluation, and related details 
of the evaluation program, and the legal authority enabling the 
evaluation program.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993]



Sec. 51.354  Adequate tools and resources.

    (a) Administrative resources. The program shall maintain the 
administrative resources necessary to perform all of the program 
functions including quality assurance, data analysis and reporting, and 
the holding of hearings and adjudication of cases. A portion of the test 
fee or a separately assessed per vehicle fee shall be collected, placed 
in a dedicated fund and retained, to be used to finance program 
oversight, management, and capital expenditures. Alternatives to this 
approach shall be acceptable if the state can demonstrate that adequate 
funding of the program can be maintained in some other fashion (e.g., 
through contractual obligation along with demonstrated past 
performance). Reliance on future uncommitted annual or biennial 
appropriations from the state or local General Fund is not acceptable, 
unless doing otherwise would be a violation of the state's constitution. 
This section shall in no way require the establishment of a test fee if 
the state chooses to fund the program in some other manner.
    (b) Personnel. The program shall employ sufficient personnel to 
effectively carry out the duties related to the program, including but 
not limited to administrative audits, inspector audits, data analysis, 
program oversight, program evaluation, public education and assistance, 
and enforcement against stations and inspectors as well as against 
motorists who are out of compliance with program regulations and 
requirements.
    (c) Equipment. The program shall possess equipment necessary to 
achieve the objectives of the program and meet program requirements, 
including but not limited to a steady supply of vehicles for covert 
auditing, test equipment and facilities for program evaluation, and 
computers capable of data processing, analysis, and reporting. Equipment 
or equivalent services may be contractor supplied or owned by the state 
or local authority.
    (d) SIP requirements. The SIP shall include a description of the 
resources that will be used for program operation, and discuss how the 
performance standard will be met.
    (1) The SIP shall include a detailed budget plan which describes the 
source of funds for personnel, program administration, program 
enforcement, purchase of necessary equipment (such as vehicles for 
undercover audits), and any other requirements discussed throughout, for 
the period prior to the next biennial self-evaluation required in 
Sec. 51.366 of this subpart.
    (2) The SIP shall include a description of personnel resources. The 
plan shall include the number of personnel dedicated to overt and covert 
auditing, data analysis, program administration, enforcement, and other 
necessary functions and the training attendant to each function.



Sec. 51.355  Test frequency and convenience.

    (a) The performance standards for I/M programs assume an annual test 
frequency; other schedules may be approved if the required emission 
targets are achieved. The SIP shall describe the test schedule in 
detail, including the test year selection scheme if testing is other 
than annual. The SIP shall include the legal authority necessary

[[Page 797]]

to implement and enforce the test frequency requirement and explain how 
the test frequency will be integrated with the enforcement process.
    (b) In enhanced I/M programs, test systems shall be designed in such 
a way as to provide convenient service to motorists required to get 
their vehicles tested. The SIP shall demonstrate that the network of 
stations providing test services is sufficient to insure short waiting 
times to get a test and short driving distances. Stations shall be 
required to adhere to regular testing hours and to test any subject 
vehicle presented for a test during its test period.



Sec. 51.356  Vehicle coverage.

    The performance standard for enhanced I/M programs assumes coverage 
of all 1968 and later model year light duty vehicles and light duty 
trucks up to 8,500 pounds GVWR, and includes vehicles operating on all 
fuel types. The standard for basic I/M programs does not include light 
duty trucks. Other levels of coverage may be approved if the necessary 
emission reductions are achieved. Vehicles registered or required to be 
registered within the I/M program area boundaries and fleets primarily 
operated within the I/M program area boundaries and belonging to the 
covered model years and vehicle classes comprise the subject vehicles.
    (a) Subject vehicles. (1) All vehicles of a covered model year and 
vehicle type shall be tested according to the applicable test schedule, 
including leased vehicles whose registration or titling is in the name 
of an equity owner other than the lessee or user.
    (2) All subject fleet vehicles shall be inspected. Fleets may be 
officially inspected outside of the normal I/M program test facilities, 
if such alternatives are approved by the program administration, but 
shall be subject to the same test requirements using the same quality 
control standards as non-fleet vehicles. If all vehicles in a particular 
fleet are tested during one part of the cycle, then the quality control 
requirements shall be met during the time of testing only. Any vehicle 
available for rent in the I/M area or for use in the I/M area shall be 
subject. Fleet vehicles not being tested in normal I/M test facilities 
in enhanced I/M programs, however, shall be inspected in independent, 
test-only facilities, according to the requirements of Sec. 51.353(a) of 
this subpart.
    (3) Subject vehicles which are registered in the program area but 
are primarily operated in another I/M area shall be tested, either in 
the area of primary operation, or in the area of registration. Alternate 
schedules may be established to permit convenient testing of these 
vehicles (e.g., vehicles belonging to students away at college should be 
rescheduled for testing during a visit home). I/M programs shall make 
provisions for providing official testing to vehicles registered 
elsewhere.
    (4) Vehicles which are operated on Federal installations located 
within an I/M program area shall be tested, regardless of whether the 
vehicles are registered in the state or local I/M area. This requirement 
applies to all employee-owned or leased vehicles (including vehicles 
owned, leased, or operated by civilian and military personnel on Federal 
installations) as well as agency-owned or operated vehicles, except 
tactical military vehicles, operated on the installation. This 
requirement shall not apply to visiting agency, employee, or military 
personnel vehicles as long as such visits do not exceed 60 calendar days 
per year. In areas without test fees collected in the lane, arrangements 
shall be made by the installation with the I/M program for reimbursement 
of the costs of tests provided for agency vehicles, at the discretion of 
the I/M agency. The installation shall provide documentation of proof of 
compliance to the I/M agency. The documentation shall include a list of 
subject vehicles and shall be updated periodically, as determined by the 
I/M program administrator, but no less frequently than each inspection 
cycle. The installation shall use one of the following methods to 
establish proof of compliance:
    (i) Presentation of a valid certificate of compliance from the local 
I/M program, from any other I/M program at least as stringent as the 
local program, or from any program deemed acceptable by the I/M program 
administrator.

[[Page 798]]

    (ii) Presentation of proof of vehicle registration within the 
geographic area covered by the I/M program, except for any program whose 
enforcement is not through registration denial.
    (iii) Another method approved by the state or local I/M program 
administrator.
    (5) Special exemptions may be permitted for certain subject vehicles 
provided a demonstration is made that the performance standard will be 
met.
    (b) SIP requirements. (1) The SIP shall include a detailed 
description of the number and types of vehicles to be covered by the 
program, and a plan for how those vehicles are to be identified, 
including vehicles that are routinely operated in the area but may not 
be registered in the area.
    (2) The SIP shall include a description of any special exemptions 
which will be granted by the program, and an estimate of the percentage 
and number of subject vehicles which will be impacted. Such exemptions 
shall be accounted for in the emission reduction analysis.
    (3) The SIP shall include the legal authority or rule necessary to 
implement and enforce the vehicle coverage requirement.



Sec. 51.357  Test procedures and standards.

    Written test procedures and pass/fail standards shall be established 
and followed for each model year and vehicle type included in the 
program.
    (a) Test procedure requirements. Emission tests and functional tests 
shall be conducted according to good engineering practices to assure 
test accuracy.
    (1) Initial tests (i.e., those occurring for the first time in a 
test cycle) shall be performed without repair or adjustment at the 
inspection facility, prior to the test, except as provided in paragraph 
(a)(10)(i) of this section.
    (2) The vehicle owner or driver shall have access to the test area 
such that observation of the entire official inspection process on the 
vehicle is permitted. Such access may be limited but shall in no way 
prevent full observation.
    (3) An official test, once initiated, shall be performed in its 
entirety regardless of intermediate outcomes except in the case of 
invalid test condition, unsafe conditions, or fast pass/fail algorithms.
    (4) Tests involving measurement shall be performed with program-
approved equipment that has been calibrated accordingly to the quality 
procedures contained in appendix A to this subpart.
    (5) Vehicles shall be rejected from testing if the exhaust system is 
missing or leaking, or if the vehicle is in an unsafe condition for 
testing.
    (6) Vehicles shall be retested after repair for any portion of the 
inspection that is failed on the previous test to determine if repairs 
were effective. To the extent that repair to correct a previous failure 
could lead to failure of another portion of the test, that portion shall 
also be retested. Evaporative system repairs shall trigger an exhaust 
emissions retest.
    (7) Steady-state testing. Steady-state tests shall be performed in 
accordance with the procedures contained in appendix B to this subpart.
    (8) Emission control device inspection. Visual emission control 
device checks shall be performed through direct observation or through 
indirect observation using a mirror, video camera or other visual aid. 
These inspections shall include a determination as to whether each 
subject device is present and appears to be properly connected and 
appears to be the correct type for the certified vehicle configuration.
    (9) Evaporative system purge test procedure. The purge test 
procedure shall consist of measuring the total purge flow (in standard 
liters) occurring in the vehicle's evaporative system during the 
transient dynamometer emission test specified in paragraph (a)(11) of 
this section. The purge flow measurement system shall be connected to 
the purge portion of the evaporative system in series between the 
canister and the engine, preferably near the canister. The inspector 
shall be responsible for ensuring that all items that are disconnected 
in the conduct of the test procedure are properly re-connected at the 
conclusion of the test procedure. Alternative procedures may be used if 
they are shown to be equivalent or better to the satisfaction of the 
Administrator. Except in the case of

[[Page 799]]

government-run test facilities claiming sovereign immunity, any damage 
done to the evaporative emission control system during this test shall 
be repaired at the expense of the inspection facility.
    (10) Evaporative system integrity test procedure. The test sequence 
shall consist of the following steps:
    (i) Test equipment shall be connected to the fuel tank canister hose 
at the canister end. The gas cap shall be checked to ensure that it is 
properly, but not excessively tightened, and shall be tightened if 
necessary.
    (ii) The system shall be pressurized to 140.5 inches of 
water without exceeding 26 inches of water system pressure.
    (iii) Close off the pressure source, seal the evaporative system and 
monitor pressure decay for up to two minutes.
    (iv) Loosen the gas cap after a maximum of two minutes and monitor 
for a sudden pressure drop, indicating that the fuel tank was 
pressurized.
    (v) The inspector shall be responsible for ensuring that all items 
that are disconnected in the conduct of the test procedure are properly 
re-connected at the conclusion of the test procedure.
    (vi) Alternative procedures may be used if they are shown to be 
equivalent or better to the satisfaction of the Administrator. Except in 
the case of government-run test facilities claiming sovereign immunity, 
any damage done to the evaporative emission control system during this 
test shall be repaired at the expense of the inspection facility.
    (11) Transient emission test. The transient emission test shall 
consist of 240 seconds of mass emission measurement using a constant 
volume sampler while the vehicle is driven through a computer-monitored 
driving cycle on a dynamometer with inertial weight settings appropriate 
for the weight of the vehicle. The driving cycle shall include 
acceleration, deceleration, and idle operating modes as specified in 
appendix E to this subpart. The 240 second sequence may be ended earlier 
using fast pass or fast fail algorithms and multiple pass/fail 
algorithms may be used during the test cycle to eliminate false 
failures. The transient test procedure, including algorithms and other 
procedural details, shall be approved by the Administrator prior to use 
in an I/M program.
    (12) On-board diagnostic checks. [Reserved].
    (13) Approval of alternative tests. Alternative test procedures may 
be approved if the Administrator finds that--
    (i) Such procedures are in accordance with good engineering 
practice, including errors of commission (at cutpoints corresponding to 
equivalent emission reductions) no higher than the tests they would 
replace;
    (ii) Such procedures show a correlation with the Federal Test 
Procedure (with respect to their ability to detect high emitting 
vehicles and ensure their effective repair) equal to or better than the 
tests they would replace; and
    (iii) Such procedures would produce equivalent emission reductions 
in combination with other program elements.
    (b) Test standards--(1) Emissions standards. HC, CO, and CO+CO2 
(or CO2 alone) emission standards shall be applicable to all 
vehicles subject to the program and repairs shall be required for 
failure of any standard regardless of the attainment status of the area. 
NOx emission standards shall be applied to vehicles subject to a 
transient test in ozone nonattainment areas and in an ozone transport 
region, unless a waiver of NOx controls is provided to the state 
under Sec. 51.351(d) of this subpart.
    (i) Steady-state short tests. The steady-state short test emission 
standards for 1981 and later model year light duty vehicles and light 
duty trucks shall be at least as stringent as those in appendix C to 
this subpart.
    (ii) Transient test. Transient test emission standards shall be 
established for HC, CO, CO2, and NOx for subject vehicles 
based on model year and vehicle type.
    (2) Visual equipment inspection standards. (i) Vehicles shall fail 
visual inspections of subject emission control devices if such devices 
are part of the original certified configuration and are found to be 
missing, modified, disconnected, or improperly connected.

[[Page 800]]

    (ii) Vehicles shall fail visual inspections of subject emission 
control devices if such devices are found to be incorrect for the 
certified vehicle configuration under inspection. Aftermarket parts, as 
well as original equipment manufacture parts, may be considered correct 
if they are proper for the certified vehicle configuration. Where an EPA 
aftermarket approval or self-certification program exists for a 
particular class of subject parts, vehicles shall fail visual equipment 
inspections if the part is neither original equipment manufacture nor 
from an approved or self-certified aftermarket manufacturer.
    (3) Functional test standards--(i) Evaporative system integrity 
test. Vehicles shall fail the evaporative system pressure test if the 
system cannot maintain a system pressure above eight inches of water for 
up to two minutes after being pressurized to 140.5 inches of 
water or if no pressure drop is detected when the gas cap is loosened as 
described in paragraph (a)(10)(iv) of this section. Additionally, 
vehicles shall fail the evaporative test if the canister is missing or 
obviously damaged, if hoses are missing or obviously disconnected, or if 
the gas cap is missing.
    (ii) Evaporative canister purge test. Vehicles with a total purge 
system flow measuring less than one liter, over the course of the 
transient test required in paragraph (a)(9) of this section, shall fail 
the evaporative purge test.
    (4) On-board diagnostics test standards. [Reserved]
    (c) Fast test algorithms and standards. Special test algorithms and 
pass/fail algorithms may be employed to reduce test time when the test 
outcome is predictable with near certainty, if the Administrator 
approves by letter the equivalency to full procedure testing.
    (d) Applicability. In general, section 203(a)(3)(A) of the Clean Air 
Act prohibits altering a vehicle's configuration such that it changes 
from a certified to a non-certified configuration. In the inspection 
process, vehicles that have been altered from their original certified 
configuration are to be tested in the same manner as other subject 
vehicles.
    (1) Vehicles with engines other than the engine originally installed 
by the manufacturer or an identical replacement of such engine shall be 
subject to the test procedures and standards for the chassis type and 
model year including visual equipment inspections for all parts that are 
part of the original or now-applicable certified configuration and part 
of the normal inspection. States may choose to require vehicles with 
such engines to be subject to the test procedures and standards for the 
engine model year if it is newer than the chassis model year.
    (2) Vehicles that have been switched from an engine of one fuel type 
to another fuel type that is subject to the program (e.g., from a diesel 
engine to a gasoline engine) shall be subject to the test procedures and 
standards for the current fuel type, and to the requirements of 
paragraph (d)(1) of this section.
    (3) Vehicles that are switched to a fuel type for which there is no 
certified configuration shall be tested according to the most stringent 
emission standards established for that vehicle type and model year. 
Emission control device requirements may be waived if the program 
determines that the alternatively fueled vehicle configuration would 
meet the new vehicle standards for that model year without such devices.
    (4) Mixing vehicle classes (e.g., light-duty with heavy-duty) and 
certification types (e.g., California with Federal) within a single 
vehicle configuration shall be considered tampering.
    (e) SIP requirements. The SIP shall include a description of each 
test procedure used. The SIP shall include the rule, ordinance or law 
describing and establishing the test procedures.



Sec. 51.358  Test equipment.

    Computerized test systems are required for performing any 
measurement on subject vehicles.
    (a) Performance features of computerized test systems. The test 
equipment shall be certified by the program to meet the requirements 
contained in appendix D to this subpart, and newly acquired systems 
shall be subjected to acceptance test procedures to ensure

[[Page 801]]

compliance with program specifications.
    (1) Emission test equipment shall be capable of testing all subject 
vehicles and shall be updated from time to time to accommodate new 
technology vehicles as well as changes to the program.
    (2) At a minimum, emission test equipment:
    (i) Shall be automated to the highest degree commercially available 
to minimize the potential for intentional fraud and/or human error;
    (ii) Shall be secure from tampering and/or abuse;
    (iii) Shall be based upon written specifications; and
    (iv) Shall be capable of simultaneously sampling dual exhaust 
vehicles.
    (3) The vehicle owner or driver shall be provided with a computer-
generated record of test results, including all of the items listed in 
40 CFR part 85, subpart W as being required on the test record. The test 
report shall include:
    (i) A vehicle description, including license plate number, vehicle 
identification number, and odometer reading;
    (ii) The date and time of test;
    (iii) The name or identification number of the individual(s) 
performing the tests and the location of the test station and lane;
    (iv) The type of tests performed, including emission tests, visual 
checks for the presence of emission control components, and functional, 
evaporative system checks;
    (v) The applicable test standards;
    (vi) The test results, including exhaust concentrations and pass/
fail results for each mode measured, pass/fail results for evaporative 
system checks, and which emission control devices inspected were passed, 
failed, or not applicable;
    (vii) A statement indicating the availability of warranty coverage 
as required in section 207 of the Clean Air Act;
    (viii) Certification that tests were performed in accordance with 
the regulations and, in the case of decentralized programs, the 
signature of the individual who performed the test; and
    (ix) For vehicles that fail the tailpipe emission test, information 
on the possible causes of the specific pattern of high emission levels 
found during the test.
    (b) Functional characteristics of computerized test systems. The 
test system is composed of emission measurement devices and other motor 
vehicle test equipment controlled by a computer.
    (1) The test system shall automatically:
    (i) Make a pass/fail decision for all measurements;
    (ii) Record test data to an electronic medium;
    (iii) Conduct regular self-testing of recording accuracy;
    (iv) Perform electrical calibration and system integrity checks 
before each test, as applicable; and
    (v) Initiate system lockouts for:
    (A) Tampering with security aspects of the test system;
    (B) Failing to conduct or pass periodic calibration or leak checks;
    (C) Failing to conduct or pass the constant volume sampler flow rate 
check (if applicable);
    (D) Failing to conduct or pass any of the dynamometer checks, 
including coast-down, roll speed and roll distance, power absorption 
capability, and inertia weight selection checks (if applicable);
    (E) Failing to conduct or pass the pressure monitoring device check 
(if applicable);
    (F) Failing to conduct or pass the purge flow metering system check 
(if applicable); and
    (G) A full data recording medium or one that does not pass a 
cyclical redundancy check.
    (2) Test systems in enhanced I/M programs shall include a real-time 
data link to a host computer that prevents unauthorized multiple initial 
tests on the same vehicle in a test cycle and to insure test record 
accuracy.
    (3) The test system shall insure accurate data collection by 
limiting, cross-checking, and/or confirming manual data entry.
    (4) On-board diagnostic test equipment requirements. [Reserved]
    (c) SIP requirements. The SIP shall include written technical 
specifications for all test equipment used in the program and shall 
address each of the above requirements. The specifications shall 
describe the emission analysis

[[Page 802]]

process, the necessary test equipment, the required features, and 
written acceptance testing criteria and procedures.



Sec. 51.359  Quality control.

    Quality control measures shall insure that emission measurement 
equipment is calibrated and maintained properly, and that inspection, 
calibration records, and control charts are accurately created, recorded 
and maintained.
    (a) General requirements. (1) The practices described in this 
section and in Appendix A to this subpart shall be followed, at a 
minimum. Alternatives or exceptions to these procedures or frequencies 
may be approved by the Administrator based on a demonstration, including 
control chart analysis, of equivalent performance.
    (2) Preventive maintenance on all inspection equipment necessary to 
insure accurate and repeatable operation shall be performed on a 
periodic basis.
    (3) Computerized analyzers shall automatically record quality 
control check information, lockouts, attempted tampering, and any other 
recordable circumstances which should be monitored to insure quality 
control (e.g., service calls).
    (b) Requirements for steady-state emissions testing equipment. (1) 
Equipment shall be maintained according to demonstrated good engineering 
practices to assure test accuracy. The calibration and adjustment 
requirements in Appendix A to this subpart shall apply to all steady-
state test equipment. States may adjust calibration schedules and other 
quality control frequencies by using statistical process control to 
monitor equipment performance on an ongoing basis.
    (2) For analyzers that use ambient air as zero air, provision shall 
be made to draw the air from outside the inspection bay or lane in which 
the analyzer is situated.
    (3) The analyzer housing shall be constructed to protect the 
analyzer bench and electrical components from ambient temperature and 
humidity fluctuations that exceed the range of the analyzer's design 
specifications.
    (4) Analyzers shall automatically purge the analytical system after 
each test.
    (c) Requirements for transient exhaust emission test equipment. 
Equipment shall be maintained according to demonstrated good engineering 
practices to assure test accuracy. Computer control of quality assurance 
checks and quality control charts shall be used whenever possible. 
Exceptions to the procedures and the frequency of the checks described 
in Appendix A of this subpart may be approved by the Administrator based 
on a demonstration of equivalent performance.
    (d) Requirements for evaporative system functional test equipment. 
Equipment shall be maintained according to demonstrated good engineering 
practices to assure test accuracy. Computer control of quality assurance 
checks and quality control charts shall be used whenever possible. 
Exceptions to the procedures and the frequency of the checks described 
in appendix A of this subpart may be approved by the Administrator based 
on a demonstration of equivalent performance.
    (e) Document security. Measures shall be taken to maintain the 
security of all documents by which compliance with the inspection 
requirement is established including, but not limited to inspection 
certificates, waiver certificates, license plates, license tabs, and 
stickers. This section shall in no way require the use of paper 
documents but shall apply if they are used by the program for these 
purposes.
    (1) Compliance documents shall be counterfeit resistant. Such 
measures as the use of special fonts, water marks, ultra-violet inks, 
encoded magnetic strips, unique bar-coded identifiers, and difficult to 
acquire materials may be used to accomplish this requirement.
    (2) All inspection certificates, waiver certificates, and stickers 
shall be printed with a unique serial number and an official program 
seal.
    (3) Measures shall be taken to ensure that compliance documents 
cannot be stolen or removed without being damaged.
    (f) SIP requirements. The SIP shall include a description of quality 
control and record keeping procedures. The

[[Page 803]]

SIP shall include the procedure manual, rule, ordinance or law 
describing and establishing the quality control procedures and 
requirements.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993]



Sec. 51.360  Waivers and compliance via diagnostic inspection.

    The program may allow the issuance of a waiver, which is a form of 
compliance with the program requirements that allows a motorist to 
comply without meeting the applicable test standards, as long as the 
prescribed criteria described below are met.
    (a) Waiver issuance criteria. The waiver criteria shall include the 
following at a minimum.
    (1) Waivers shall be issued only after a vehicle has failed a retest 
performed after all qualifying repairs have been completed. Qualifying 
repairs include repairs of the emission control components, listed in 
paragraph (a)(5) of this section, performed within 60 days of the test 
date.
    (2) Any available warranty coverage shall be used to obtain needed 
repairs before expenditures can be counted towards the cost limits in 
paragraphs (a)(5) and (a)(6) of this section. The operator of a vehicle 
within the statutory age and mileage coverage under section 207(b) of 
the Clean Air Act shall present a written denial of warranty coverage 
from the manufacturer or authorized dealer for this provision to be 
waived for approved tests applicable to the vehicle.
    (3) Waivers shall not be issued to vehicles for tampering-related 
repairs. The cost of tampering-related repairs shall not be applicable 
to the minimum expenditure in paragraphs (a)(5) and (a)(6) of this 
section. States may issue exemptions for tampering-related repairs if it 
can be verified that the part in question or one similar to it is no 
longer available for sale.
    (4) Repairs shall be appropriate to the cause of the test failure, 
and a visual check shall be made to determine if repairs were actually 
made if, given the nature of the repair, it can be visually confirmed. 
Receipts shall be submitted for review to further verify that qualifying 
repairs were performed.
    (5) General repairs shall be performed by a recognized repair 
technician (i.e., one professionally engaged in vehicle repair, employed 
by a going concern whose purpose is vehicle repair, or possessing 
nationally recognized certification for emission-related diagnosis and 
repair) in order to qualify for a waiver. I/M programs may allow the 
cost of parts (not labor) utilized by non-technicians (e.g., owners) to 
apply toward the waiver limit. The waiver would apply to the cost of 
parts for the repair or replacement of the following list of emission 
control components: oxygen sensor, catalytic converter, thermal reactor, 
EGR valve, fuel filler cap, evaporative canister, PCV valve, air pump, 
distributor, ignition wires, coil, and spark plugs. The cost of any 
hoses, gaskets, belts, clamps, brackets or other accessories directly 
associated with these components may also be applied to the waiver 
limit.
    (6) In basic programs, a minimum of $75 for pre-81 vehicles and $200 
for 1981 and newer vehicles shall be spent in order to qualify for a 
waiver. These model year cutoffs and the associated dollar limits shall 
be in full effect no later than January 1, 1998. Prior to January 1, 
1998, states may adopt any minimum expenditure commensurate with the 
waiver rate committed to for the purposes of modeling compliance with 
the basic I/M performance standard.
    (7) Beginning on January 1, 1998, enhanced I/M programs shall 
require the motorist to make an expenditure of at least $450 in repairs 
to qualify for a waiver. The I/M program shall provide that the $450 
minimum expenditure shall be adjusted in January of each year by the 
percentage, if any, by which the Consumer Price Index for the preceding 
calendar year differs from the Consumer Price Index of 1989. Prior to 
January 1, 1998, states may adopt any minimum expenditure commensurate 
with the waiver rate committed to for the purposes of modeling 
compliance with the relevant enhanced I/M performance standard.
    (i) The Consumer Price Index for any calendar year is the average of 
the Consumer Price Index for all-urban consumers published by the 
Department of Labor, as of the close of the 12-

[[Page 804]]

month period ending on August 31 of each calendar year. A copy of the 
current Consumer Price Index may be obtained from the Emission Planning 
and Strategies Division, U.S. Environmental Protection Agency, 2565 
Plymouth Road, Ann Arbor, Michigan 48105.
    (ii) The revision of the Consumer Price Index which is most 
consistent with the Consumer Price Index for calendar year 1989 shall be 
used.
    (8) States may establish lower minimum expenditures if a program is 
established to scrap vehicles that do not meet standards after the lower 
expe nditure is made.
    (9) A time extension, not to exceed the period of the inspection 
frequency, may be granted to obtain needed repairs on a vehicle in the 
case of economic hardship when waiver requirements have not been met. 
After having received a time extension, a vehicle must fully pass the 
applicable test standards before becoming eligible for another time 
extension. The extension for a vehicle shall be tracked and reported by 
the program.
    (b) Compliance via diagnostic inspection. Vehicles subject to a 
transient IM240 emission test at the cutpoints established in 
Sec. Sec. 51.351 (f)(7) and (g)(7) of this subpart may be issued a 
certificate of compliance without meeting the prescribed emission 
cutpoints, if, after failing a retest on emissions, a complete, 
documented physical and functional diagnosis and inspection performed by 
the I/M agency or a contractor to the I/M agency show that no additional 
emission-related repairs are needed. Any such exemption policy and 
procedures shall be subject to approval by the Administrator.
    (c) Quality control of waiver issuance. (1) Enhanced programs shall 
control waiver issuance and processing by establishing a system of 
agency-issued waivers. The state may delegate this authority to a single 
contractor but inspectors in stations and lanes shall not issue waivers. 
Basic programs may permit inspector-issued waivers as long as quality 
assurance efforts include a comprehensive review of waiver issuance.
    (2) The program shall include methods of informing vehicle owners or 
lessors of potential warranty coverage, and ways to obtain warranty 
repairs.
    (3) The program shall insure that repair receipts are authentic and 
cannot be revised or reused.
    (4) The program shall insure that waivers are only valid for one 
test cycle.
    (5) The program shall track, manage, and account for time extensions 
or exemptions so that owners or lessors cannot receive or retain a 
waiver improperly.
    (d) SIP requirements. (1) The SIP shall include a maximum waiver 
rate expressed as a percentage of initially failed vehicles. This waiver 
rate shall be used for estimating emission reduction benefits in the 
modeling analysis.
    (2) The state shall take corrective action if the waiver rate 
exceeds that committed to in the SIP or revise the SIP and the emission 
reductions claimed.
    (3) The SIP shall describe the waiver criteria and procedures, 
including cost limits, quality assurance methods and measures, and 
administration.
    (4) The SIP shall include the necessary legal authority, ordinance, 
or rules to issue waivers, set and adjust cost limits as required in 
paragraph (a)(5) of this section, and carry out any other functions 
necessary to administer the waiver system, including enforcement of the 
waiver provisions.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993; 60 
FR 48036, Sept. 18, 1995]



Sec. 51.361  Motorist compliance enforcement.

    Compliance shall be ensured through the denial of motor vehicle 
registration in enhanced I/M programs unless an exception for use of an 
existing alternative is approved. An enhanced I/M area may use an 
existing alternative if it demonstrates that the alternative has been 
more effective than registration denial. An enforcement mechanism may be 
considered an ``existing alternative'' only in areas that had approved 
I/M programs with that mechanism in the State Implementation Plan prior 
to passage of the 1990 Amendments to the Act. A basic I/M area may

[[Page 805]]

use an alternative enforcement mechanism if it demonstrates that the 
alternative will be as effective as registration denial. Two other types 
of enforcement programs may qualify for enhanced I/M programs if 
demonstrated to have been more effective than enforcement of the 
registration requirement in the past: Sticker-based enforcement programs 
and computer-matching programs. For newly implementing enhanced areas, 
including newly subject areas in a state with an I/M program in another 
part of the state, there is no provision for enforcement alternatives in 
the Act.
    (a) Registration denial. Registration denial enforcement is defined 
as rejecting an application for initial registration or reregistration 
of a used vehicle (i.e., a vehicle being registered after the initial 
retail sale and associated registration) unless the vehicle has complied 
with the I/M requirement prior to granting the application. Pursuant to 
section 207(g)(3) of the Act, nothing in this subpart shall be construed 
to require that new vehicles shall receive emission testing prior to 
initial retail sale. In designing its enforcement program, the state 
shall:
    (1) Provide an external, readily visible means of determining 
vehicle compliance with the registration requirement to facilitate 
enforcement of the program;
    (2) Adopt a schedule of testing (either annual or biennial) that 
clearly determines when a vehicle shall comply prior to registration;
    (3) Design a testing certification mechanism (either paper-based or 
electronic) that shall be used for registration purposes and clearly 
indicates whether the certification is valid for purposes of 
registration, including:
    (i) Expiration date of the certificate;
    (ii) Unambiguous vehicle identification information; and
    (iii) Whether the vehicle passed or received a waiver;
    (4) Routinely issue citations to motorists with expired or missing 
license plates, with either no registration or an expired registration, 
and with no license plate decals or expired decals, and provide for 
enforcement officials other than police to issue citations (e.g., 
parking meter attendants) to parked vehicles in noncompliance;
    (5) Structure the penalty system to deter non-compliance with the 
registration requirement through the use of mandatory minimum fines 
(meaning civil, monetary penalties, in this subpart) constituting a 
meaningful deterrent and through a requirement that compliance be 
demonstrated before a case can be closed;
    (6) Ensure that evidence of testing is available and checked for 
validity at the time of a new registration of a used vehicle or 
registration renewal;
    (7) Prevent owners or lessors from avoiding testing through 
manipulation of the title or registration system; title transfers may 
re-start the clock on the inspection cycle only if proof of current 
compliance is required at title transfer;
    (8) Prevent the fraudulent initial classification or 
reclassification of a vehicle from subject to non-subject or exempt by 
requiring proof of address changes prior to registration record 
modification, and documentation from the testing program (or delegate) 
certifying based on a physical inspection that the vehicle is exempt;
    (9) Limit and track the use of time extensions of the registration 
requirement to prevent repeated extensions;
    (10) Provide for meaningful penalties for cases of registration 
fraud;
    (11) Limit and track exemptions to prevent abuse of the exemption 
policy for vehicles claimed to be out-of-state; and
    (12) Encourage enforcement of vehicle registration transfer 
requirements when vehicle owners move into the I/M area by coordinating 
with local and state enforcement agencies and structuring other 
activities (e.g., drivers license issuance) to effect registration 
transfers.
    (b) Alternative enforcement mechanisms--(1) General requirements. 
The program shall demonstrate that a non-registration-based enforcement 
program is currently more effective than registration-denial enforcement 
in enhanced I/M programs or, prospectively, as effective as registration 
denial in basic programs. The following general requirements shall 
apply:

[[Page 806]]

    (i) For enhanced I/M programs, the area in question shall have had 
an approved SIP with an operating I/M program using the alternative 
mechanism prior to enactment of the Clean Air Act Amendments of 1990. 
While modifications to improve compliance may be made to the program 
that was in effect at the time of enactment, the expected change in 
effectiveness cannot be considered in determining acceptability;
    (ii) The state shall assess the alternative program's effectiveness, 
as well as the current effectiveness of the registration system, 
including the following:
    (A) Determine the number and percentage of vehicles subject to the 
I/M program that were in compliance with the program over the course of 
at least one test cycle; and
    (B) Determine the number and fraction of the same group of vehicles 
as in paragraph (b)(1)(ii)(A) of this section that were in compliance 
with the registration requirement over the same period. Late 
registration shall not be considered non-compliance for the purposes of 
this determination. The precise definition of late registration versus a 
non-complying vehicle shall be explained and justified in the SIP;
    (iii) An alternative mechanism shall be considered more effective if 
the fraction of vehicles complying with the existing program, as 
determined according to the requirements of this section, is greater 
than the fraction of vehicles complying with the registration 
requirement. An alternative mechanism is as effective if the fraction 
complying with the program is at least equal to the fraction complying 
with the registration requirement.
    (2) Sticker-based enforcement. In addition to the general 
requirements, a sticker-based enforcement program shall demonstrate that 
the enforcement mechanism will swiftly and effectively prevent operation 
of subject vehicles that fail to comply. Such demonstration shall 
include the following:
    (i) An assessment of the current extent of the following forms of 
non-compliance and demonstration that mechanisms exist to keep such non-
compliance within acceptable limits:
    (A) Use of stolen, counterfeit, or fraudulently obtained stickers;
    (B) In states with safety inspections, the use of ``Safety 
Inspection Only'' stickers on vehicles that should be subject to the I/M 
requirement as well; and
    (C) Operation of vehicles with expired stickers, including a 
stratification of non-compliance by length of noncompliance and model 
year.
    (ii) The program as currently implemented or as proposed to be 
improved shall also:
    (A) Require an easily observed external identifier such as the 
county name on the license plate, an obviously unique license plate tab, 
or other means that shows whether or not a vehicle is subject to the I/M 
requirement;
    (B) Require an easily observed external identifier, such as a 
windshield sticker or license plate tab that shows whether a subject 
vehicle is in compliance with the inspection requirement;
    (C) Impose monetary fines at least as great as the estimated cost of 
compliance with I/M requirements (e.g., test fee plus minimum waiver 
expenditure) for the absence of such identifiers;
    (D) Require that such identifiers be of a quality that makes them 
difficult to counterfeit, difficult to remove without destroying once 
installed, and durable enough to last until the next inspection without 
fading, peeling, or other deterioration;
    (E) Perform surveys in a variety of locations and at different times 
for the presence of the required identifiers such that at least 10% of 
the vehicles or 10,000 vehicles (whichever is less) in the subject 
vehicle population are sampled each year;
    (F) Track missing identifiers for all inspections performed at each 
station, with stations being held accountable for all such identifiers 
they are issued; and
    (G) Assess and collect significant fines for each identifier that is 
unaccounted for by a station.
    (3) Computer matching. In addition to the general requirements, 
computer-matching programs shall demonstrate that the enforcement 
mechanism will swiftly and effectively prevent operation of subject 
vehicles that fail to comply. Such demonstration shall:

[[Page 807]]

    (i) Require an expeditious system that results in at least 90% of 
the subject vehicles in compliance within 4 months of the compliance 
deadline;
    (ii) Require that subject vehicles be given compliance deadlines 
based on the regularly scheduled test date, not the date of previous 
compliance;
    (iii) Require that motorists pay monetary fines at least as great as 
the estimated cost of compliance with I/M requirements (e.g., test fee 
plus minimum waiver expenditure) for the continued operation of a 
noncomplying vehicle beyond 4 months of the deadline;
    (iv) Require that continued non-compliance will eventually result in 
preventing operation of the non-complying vehicle (no later than the 
date of the next test cycle) through, at a minimum, suspension of 
vehicle registration and subsequent denial of reregistration;
    (v) Demonstrate that the computer system currently in use is 
adequate to store and manipulate the I/M vehicle database, generate 
computerized notices, and provide regular backup to said system while 
maintaining auxiliary storage devices to insure ongoing operation of the 
system and prevent data losses;
    (vi) Track each vehicle through the steps taken to ensure 
compliance, including:
    (A) The compliance deadline;
    (B) The date of initial notification;
    (C) The dates warning letters are sent to non-complying vehicle 
owners;
    (D) The dates notices of violation or other penalty notices are 
sent; and
    (E) The dates and outcomes of other steps in the process, including 
the final compliance date;
    (vii) Compile and report monthly summaries including statistics on 
the percentage of vehicles at each stage in the enforcement process; and
    (viii) Track the number and percentage of vehicles initially 
identified as requiring testing but which are never tested as a result 
of being junked, sold to a motorist in a non-I/M program area, or for 
some other reason.
    (c) SIP requirements. (1) The SIP shall provide information 
concerning the enforcement process, including:
    (i) A description of the existing compliance mechanism if it is to 
be used in the future and the demonstration that it is as effective or 
more effective than registration-denial enforcement;
    (ii) An identification of the agencies responsible for performing 
each of the applicable activities in this section;
    (iii) A description of and accounting for all classes of exempt 
vehicles; and
    (iv) A description of the plan for testing fleet vehicles, rental 
car fleets, leased vehicles, and any other subject vehicles, e.g., those 
operated in (but not necessarily registered in) the program area.
    (2) The SIP shall include a determination of the current compliance 
rate based on a study of the system that includes an estimate of 
compliance losses due to loopholes, counterfeiting, and unregistered 
vehicles. Estimates of the effect of closing such loopholes and 
otherwise improving the enforcement mechanism shall be supported with 
detailed analyses.
    (3) The SIP shall include the legal authority to implement and 
enforce the program.
    (4) The SIP shall include a commitment to an enforcement level to be 
used for modeling purposes and to be maintained, at a minimum, in 
practice.



Sec. 51.362  Motorist compliance enforcement program oversight.

    The enforcement program shall be audited regularly and shall follow 
effective program management practices, including adjustments to improve 
operation when necessary.
    (a) Quality assurance and quality control. A quality assurance 
program shall be implemented to insure effective overall performance of 
the enforcement system. Quality control procedures are required to 
instruct individuals in the enforcement process regarding how to 
properly conduct their activities. At a minimum, the quality control and 
quality assurance program shall include:
    (1) Verification of exempt vehicle status by inspecting and 
confirming such vehicles by the program or its delegate;
    (2) Facilitation of accurate critical test data and vehicle 
identifier collection through the use of automatic data

[[Page 808]]

capture systems such as bar-code scanners or optical character readers, 
or through redundant data entry;
    (3) Maintenance of an audit trail to allow for the assessment of 
enforcement effectiveness;
    (4) Establishment of written procedures for personnel directly 
engaged in I/M enforcement activities;
    (5) Establishment of written procedures for personnel engaged in I/M 
document handling and processing, such as registration clerks or 
personnel involved in sticker dispensing and waiver processing, as well 
as written procedures for the auditing of their performance;
    (6) Follow-up validity checks on out-of-area or exemption-triggering 
registration changes;
    (7) Analysis of registration-change applications to target potential 
violators;
    (8) A determination of enforcement program effectiveness through 
periodic audits of test records and program compliance documentation;
    (9) Enforcement procedures for disciplining, retraining, or removing 
enforcement personnel who deviate from established requirements, or in 
the case of non-government entities that process registrations, for 
defranchising, revoking or otherwise discontinuing the activity of the 
entity issuing registrations; and
    (10) The prevention of fraudulent procurement or use of inspection 
documents by controlling and tracking document distribution and 
handling, and making stations financially liable for missing or 
unaccounted for documents by assessing monetary fines reflecting the 
``street value'' of these documents (i.e., the test fee plus the minimum 
waiver expenditure).
    (b) Information management. In establishing an information base to 
be used in characterizing, evaluating, and enforcing the program, the 
state shall:
    (1) Determine the subject vehicle population;
    (2) Permit EPA audits of the enforcement process;
    (3) Assure the accuracy of registration and other program document 
files;
    (4) Maintain and ensure the accuracy of the testing database through 
periodic internal and/or third-party review; through automated or 
redundant data entry; and, through automated analysis for valid alpha-
numeric sequences of the vehicle identification number (VIN), 
certificate number, or license plate number;
    (5) Compare the testing database to the registration database to 
determine program effectiveness, establish compliance rates, and to 
trigger potential enforcement action against non-complying motorists; 
and
    (6) Sample the fleet as a determination of compliance through 
parking lot surveys, road-side pull-overs, or other in-use vehicle 
measurements.
    (c) SIP requirements. The SIP shall include a description of 
enforcement program oversight and information management activities.



Sec. 51.363  Quality assurance.

    An ongoing quality assurance program shall be implemented to 
discover, correct and prevent fraud, waste, and abuse and to determine 
whether procedures are being followed, are adequate, whether equipment 
is measuring accurately, and whether other problems might exist which 
would impede program performance. The quality assurance and quality 
control procedures shall be periodically evaluated to assess their 
effectiveness and relevance in achieving program goals.
    (a) Performance audits. Performance audits shall be conducted on a 
regular basis to determine whether inspectors are correctly performing 
all tests and other required functions. Performance audits shall be of 
two types: overt and covert, and shall include:
    (1) Performance audits based upon written procedures and results 
shall be reported using either electronic or written forms to be 
retained in the inspector and station history files, with sufficient 
detail to support either an administrative or civil hearing;
    (2) Performance audits in addition to regularly programmed audits 
for stations employing inspectors suspected of violating regulations as 
a result of audits, data analysis, or consumer complaints;
    (3) Overt performance audits shall be performed at least twice per 
year for each lane or test bay and shall include:

[[Page 809]]

    (i) A check for the observance of appropriate document security;
    (ii) A check to see that required record keeping practices are being 
followed;
    (iii) A check for licenses or certificates and other required 
display information; and
    (iv) Observation and written evaluation of each inspector's ability 
to properly perform an inspection;
    (4) Covert performance audits shall include:
    (i) Remote visual observation of inspector performance, which may 
include the use of aids such as binoculars or video cameras, at least 
once per year per inspector in high-volume stations (i.e., those 
performing more than 4000 tests per year);
    (ii) Site visits at least once per year per number of inspectors 
using covert vehicles set to fail (this requirement sets a minimum level 
of activity, not a requirement that each inspector be involved in a 
covert audit);
    (iii) For stations that conduct both testing and repairs, at least 
one covert vehicle visit per station per year including the purchase of 
repairs and subsequent retesting if the vehicle is initially failed for 
tailpipe emissions (this activity may be accomplished in conjunction 
with paragraph (a)(4)(ii) of this section but must involve each station 
at least once per year);
    (iv) Documentation of the audit, including vehicle condition and 
preparation, sufficient for building a legal case and establishing a 
performance record;
    (v) Covert vehicles covering the range of vehicle technology groups 
(e.g., carbureted and fuel-injected vehicles) included in the program, 
including a full range of introduced malfunctions covering the emission 
test, the evaporative system tests, and emission control component 
checks (as applicable);
    (vi) Sufficient numbers of covert vehicles and auditors to allow for 
frequent rotation of both to prevent detection by station personnel; and
    (vii) Access to on-line inspection databases by state personnel to 
permit the creation and maintenance of covert vehicle records.
    (b) Record audits. Station and inspector records shall be reviewed 
or screened at least monthly to assess station performance and identify 
problems that may indicate potential fraud or incompetence. Such review 
shall include:
    (1) Software-based, computerized analysis to identify statistical 
inconsistencies, unusual patterns, and other discrepancies;
    (2) Visits to inspection stations to review records not already 
covered in the electronic analysis (if any); and
    (3) Comprehensive accounting for all official forms that can be used 
to demonstrate compliance with the program.
    (c) Equipment audits. During overt site visits, auditors shall 
conduct quality control evaluations of the required test equipment, 
including (where applicable):
    (1) A gas audit using gases of known concentrations at least as 
accurate as those required for regular equipment quality control and 
comparing these concentrations to actual readings;
    (2) A check for tampering, worn instrumentation, blocked filters, 
and other conditions that would impede accurate sampling;
    (3) A check for critical flow in critical flow CVS units;
    (4) A check of the Constant Volume Sampler flow calibration;
    (5) A check for the optimization of the Flame Ionization Detection 
fuel-air ratio using methane;
    (6) A leak check;
    (7) A check to determine that station gas bottles used for 
calibration purposes are properly labelled and within the relevant 
tolerances;
    (8) Functional dynamometer checks addressing coast-down, roll speed 
and roll distance, inertia weight selection, and power absorption;
    (9) A check of the system's ability to accurately detect background 
pollutant concentrations;
    (10) A check of the pressure monitoring devices used to perform the 
evaporative canister pressure test; and
    (11) A check of the purge flow metering system.
    (d) Auditor training and proficiency. (1) Auditors shall be formally 
trained and knowledgeable in:
    (i) The use of analyzers;
    (ii) Program rules and regulations;

[[Page 810]]

    (iii) The basics of air pollution control;
    (iv) Basic principles of motor vehicle engine repair, related to 
emission performance;
    (v) Emission control systems;
    (vi) Evidence gathering;
    (vii) State administrative procedures laws;
    (viii) Quality assurance practices; and
    (ix) Covert audit procedures.
    (2) Auditors shall themselves be audited at least once annually.
    (3) The training and knowledge requirements in paragraph (d)(1) of 
this section may be waived for temporary auditors engaged solely for the 
purpose of conducting covert vehicle runs.
    (e) SIP requirements. The SIP shall include a description of the 
quality assurance program, and written procedures manuals covering both 
overt and covert performance audits, record audits, and equipment 
audits. This requirement does not include materials or discussion of 
details of enforcement strategies that would ultimately hamper the 
enforcement process.



Sec. 51.364  Enforcement against contractors, stations and inspectors.

    Enforcement against licensed stations or contractors, and inspectors 
shall include swift, sure, effective, and consistent penalties for 
violation of program requirements.
    (a) Imposition of penalties. A penalty schedule shall be developed 
that establishes minimum penalties for violations of program rules and 
procedures.
    (1) The schedule shall categorize and list violations and the 
minimum penalties to be imposed for first, second, and subsequent 
violations and for multiple violation of different requirements. In the 
case of contracted systems, the state may use compensation retainage in 
lieu of penalties.
    (2) Substantial penalties or retainage shall be imposed on the first 
offense for violations that directly affect emission reduction benefits. 
At a minimum, in test-and-repair programs inspector and station license 
suspension shall be imposed for at least 6 months whenever a vehicle is 
intentionally improperly passed for any required portion of the test. In 
test-only programs, inspectors shall be removed from inspector duty for 
at least 6 months (or a retainage penalty equivalent to the inspector's 
salary for that period shall be imposed).
    (3) All findings of serious violations of rules or procedural 
requirements shall result in mandatory fines or retainage. In the case 
of gross neglect, a first offense shall result in a fine or retainage of 
no less than $100 or 5 times the inspection fee, whichever is greater, 
for the contractor or the licensed station, and the inspector if 
involved.
    (4) Any finding of inspector incompetence shall result in mandatory 
training before inspection privileges are restored.
    (5) License or certificate suspension or revocation shall mean the 
individual is barred from direct or indirect involvement in any 
inspection operation during the term of the suspension or revocation.
    (b) Legal authority. (1) The quality assurance officer shall have 
the authority to temporarily suspend station and inspector licenses or 
certificates (after approval of a superior) immediately upon finding a 
violation or equipment failure that directly affects emission reduction 
benefits, pending a hearing when requested. In the case of immediate 
suspension, a hearing shall be held within fourteen calendar days of a 
written request by the station licensee or the inspector. Failure to 
hold a hearing within 14 days when requested shall cause the suspension 
to lapse. In the event that a state's constitution precludes such a 
temporary license suspension, the enforcement system shall be designed 
with adequate resources and mechanisms to hold a hearing to suspend or 
revoke the station or inspector license within three station business 
days of the finding.
    (2) The oversight agency shall have the authority to impose 
penalties against the licensed station or contractor, as well as the 
inspector, even if the licensee or contractor had no direct knowledge of 
the violation but was found to be careless in oversight of inspectors or 
has a history of violations. Contractors and licensees shall be held 
fully responsible for inspector performance in the course of duty.

[[Page 811]]

    (c) Recordkeeping. The oversight agency shall maintain records of 
all warnings, civil fines, suspensions, revocations, and violations and 
shall compile statistics on violations and penalties on an annual basis.
    (d) SIP requirements. (1) The SIP shall include the penalty schedule 
and the legal authority for establishing and imposing penalties, civil 
fines, license suspension, and revocations.
    (2) In the case of state constitutional impediments to immediate 
suspension authority, the state Attorney General shall furnish an 
official opinion for the SIP explaining the constitutional impediment as 
well as relevant case law.
    (3) The SIP shall describe the administrative and judicial 
procedures and responsibilities relevant to the enforcement process, 
including which agencies, courts, and jurisdictions are involved; who 
will prosecute and adjudicate cases; and other aspects of the 
enforcement of the program requirements, the resources to be allocated 
to this function, and the source of those funds. In states without 
immediate suspension authority, the SIP shall demonstrate that 
sufficient resources, personnel, and systems are in place to meet the 
three day case management requirement for violations that directly 
affect emission reductions.



Sec. 51.365  Data collection.

    Accurate data collection is essential to the management, evaluation, 
and enforcement of an I/M program. The program shall gather test data on 
individual vehicles, as well as quality control data on test equipment.
    (a) Test data. The goal of gathering test data is to unambiguously 
link specific test results to a specific vehicle, I/M program 
registrant, test site, and inspector, and to determine whether or not 
the correct testing parameters were observed for the specific vehicle in 
question. In turn, these data can be used to distinguish complying and 
noncomplying vehicles as a result of analyzing the data collected and 
comparing it to the registration database, to screen inspection stations 
and inspectors for investigation as to possible irregularities, and to 
help establish the overall effectiveness of the program. At a minimum, 
the program shall collect the following with respect to each test 
conducted:
    (1) Test record number;
    (2) Inspection station and inspector numbers;
    (3) Test system number;
    (4) Date of the test;
    (5) Emission test start time and the time final emission scores are 
determined;
    (6) Vehicle Identification Number;
    (7) License plate number;
    (8) Test certificate number;
    (9) Gross Vehicle Weight Rating (GVWR);
    (10) Vehicle model year, make, and type;
    (11) Number of cylinders or engine displacement;
    (12) Transmission type;
    (13) Odometer reading;
    (14) Category of test performed (i.e., initial test, first retest, 
or subsequent retest);
    (15) Fuel type of the vehicle (i.e., gas, diesel, or other fuel);
    (16) Type of vehicle preconditioning performed (if any);
    (17) Emission test sequence(s) used;
    (18) Hydrocarbon emission scores and standards for each applicable 
test mode;
    (19) Carbon monoxide emission scores and standards for each 
applicable test mode;
    (20) Carbon dioxide emission scores (CO+CO2) and standards for 
each applicable test mode;
    (21) Nitrogen oxides emission scores and standards for each 
applicable test mode;
    (22) Results (Pass/Fail/Not Applicable) of the applicable visual 
inspections for the catalytic converter, air system, gas cap, 
evaporative system, positive crankcase ventilation (PCV) valve, fuel 
inlet restrictor, and any other visual inspection for which emission 
reduction credit is claimed;
    (23) Results of the evaporative system pressure test expressed as a 
pass or fail; and
    (24) Results of the evaporative system purge test expressed as a 
pass or fail along with the total purge flow in liters achieved during 
the test.
    (b) Quality control data. At a minimum, the program shall gather and 
report the results of the quality control

[[Page 812]]

checks required under Sec. 51.359 of this subpart, identifying each 
check by station number, system number, date, and start time. The data 
report shall also contain the concentration values of the calibration 
gases used to perform the gas characterization portion of the quality 
control checks.



Sec. 51.366  Data analysis and reporting.

    Data analysis and reporting are required to allow for monitoring and 
evaluation of the program by program management and EPA, and shall 
provide information regarding the types of program activities performed 
and their final outcomes, including summary statistics and effectiveness 
evaluations of the enforcement mechanism, the quality assurance system, 
the quality control program, and the testing element. Initial submission 
of the following annual reports shall commence within 18 months of 
initial implementation of the program as required by Sec. 51.373 of this 
subpart. The biennial report shall commence within 30 months of initial 
implementation of the program as required by Sec. 51.373 of this 
subpart.
    (a) Test data report. The program shall submit to EPA by July of 
each year a report providing basic statistics on the testing program for 
January through December of the previous year, including:
    (1) The number of vehicles tested by model year and vehicle type;
    (2) By model year and vehicle type, the number and percentage of 
vehicles:
    (i) Failing the emissions test initially;
    (ii) Failing each emission control component check initially;
    (iii) Failing the evaporative system functional and integrity checks 
initially;
    (iv) Failing the first retest for tailpipe emissions;
    (v) Passing the first retest for tailpipe emissions;
    (vi) Initially failed vehicles passing the second or subsequent 
retest for tailpipe emissions;
    (vii) Initially failed vehicles passing each emission control 
component check on the first or subsequent retest by component;
    (viii) Initially failed vehicles passing the evaporative system 
functional and integrity checks on the first or subsequent retest by 
component;
    (ix) Initially failed vehicles receiving a waiver; and
    (x) Vehicles with no known final outcome (regardless of reason);
    (3) The initial test volume by model year and test station;
    (4) The initial test failure rate by model year and test station; 
and
    (5) The average increase or decrease in tailpipe emission levels for 
HC, CO, and NOx (if applicable) after repairs by model year and 
vehicle type for vehicles receiving a mass emissions test.
    (b) Quality assurance report. The program shall submit to EPA by 
July of each year a report providing basic statistics on the quality 
assurance program for January through December of the previous year, 
including:
    (1) The number of inspection stations and lanes:
    (i) Operating throughout the year; and
    (ii) Operating for only part of the year;
    (2) The number of inspection stations and lanes operating throughout 
the year:
    (i) Receiving overt performance audits in the year;
    (ii) Not receiving overt performance audits in the year;
    (iii) Receiving covert performance audits in the year;
    (iv) Not receiving covert performance audits in the year; and
    (v) That have been shut down as a result of overt performance 
audits;
    (3) The number of covert audits:
    (i) Conducted with the vehicle set to fail the emission test;
    (ii) Conducted with the vehicle set to fail the component check;
    (iii) Conducted with the vehicle set to fail the evaporative system 
checks;
    (iv) Conducted with the vehicle set to fail any combination of two 
or more of the above checks;
    (v) Resulting in a false pass for emissions;
    (vi) Resulting in a false pass for component checks;
    (vii) Resulting in a false pass for the evaporative system check; 
and

[[Page 813]]

    (viii) Resulting in a false pass for any combination of two or more 
of the above checks;
    (4) The number of inspectors and stations:
    (i) That were suspended, fired, or otherwise prohibited from testing 
as a result of covert audits;
    (ii) That were suspended, fired, or otherwise prohibited from 
testing for other causes; and
    (iii) That received fines;
    (5) The number of inspectors licensed or certified to conduct 
testing;
    (6) The number of hearings:
    (i) Held to consider adverse actions against inspectors and 
stations; and
    (ii) Resulting in adverse actions against inspectors and stations;
    (7) The total amount collected in fines from inspectors and stations 
by type of violation;
    (8) The total number of covert vehicles available for undercover 
audits over the year; and
    (9) The number of covert auditors available for undercover audits.
    (c) Quality control report. The program shall submit to EPA by July 
of each year a report providing basic statistics on the quality control 
program for January through December of the previous year, including:
    (1) The number of emission testing sites and lanes in use in the 
program;
    (2) The number of equipment audits by station and lane;
    (3) The number and percentage of stations that have failed equipment 
audits; and
    (4) Number and percentage of stations and lanes shut down as a 
result of equipment audits.
    (d) Enforcement report. (1) All varieties of enforcement programs 
shall, at a minimum, submit to EPA by July of each year a report 
providing basic statistics on the enforcement program for January 
through December of the previous year, including:
    (i) An estimate of the number of vehicles subject to the inspection 
program, including the results of an analysis of the registration data 
base;
    (ii) The percentage of motorist compliance based upon a comparison 
of the number of valid final tests with the number of subject vehicles;
    (iii) The total number of compliance documents issued to inspection 
stations;
    (iv) The number of missing compliance documents;
    (v) The number of time extensions and other exemptions granted to 
motorists; and
    (vi) The number of compliance surveys conducted, number of vehicles 
surveyed in each, and the compliance rates found.
    (2) Registration denial based enforcement programs shall provide the 
following additional information:
    (i) A report of the program's efforts and actions to prevent 
motorists from falsely registering vehicles out of the program area or 
falsely changing fuel type or weight class on the vehicle registration, 
and the results of special studies to investigate the frequency of such 
activity; and
    (ii) The number of registration file audits, number of registrations 
reviewed, and compliance rates found in such audits.
    (3) Computer-matching based enforcement programs shall provide the 
following additional information:
    (i) The number and percentage of subject vehicles that were tested 
by the initial deadline, and by other milestones in the cycle;
    (ii) A report on the program's efforts to detect and enforce against 
motorists falsely changing vehicle classifications to circumvent program 
requirements, and the frequency of this type of activity; and
    (iii) The number of enforcement system audits, and the error rate 
found during those audits.
    (4) Sticker-based enforcement systems shall provide the following 
additional information:
    (i) A report on the program's efforts to prevent, detect, and 
enforce against sticker theft and counterfeiting, and the frequency of 
this type of activity;
    (ii) A report on the program's efforts to detect and enforce against 
motorists falsely changing vehicle classifications to circumvent program 
requirements, and the frequency of this type of activity; and

[[Page 814]]

    (iii) The number of parking lot sticker audits conducted, the number 
of vehicles surveyed in each, and the noncompliance rate found during 
those audits.
    (e) Additional reporting requirements. In addition to the annual 
reports in paragraphs (a) through (d) of this section, programs shall 
submit to EPA by July of every other year, biennial reports addressing:
    (1) Any changes made in program design, funding, personnel levels, 
procedures, regulations, and legal authority, with detailed discussion 
and evaluation of the impact on the program of all such changes; and
    (2) Any weaknesses or problems identified in the program within the 
two-year reporting period, what steps have already been taken to correct 
those problems, the results of those steps, and any future efforts 
planned.
    (f) SIP requirements. The SIP shall describe the types of data to be 
collected.



Sec. 51.367  Inspector training and licensing or certification.

    All inspectors shall receive formal training and be licensed or 
certified to perform inspections.
    (a) Training. (1) Inspector training shall impart knowledge of the 
following:
    (i) The air pollution problem, its causes and effects;
    (ii) The purpose, function, and goal of the inspection program;
    (iii) Inspection regulations and procedures;
    (iv) Technical details of the test procedures and the rationale for 
their design;
    (v) Emission control device function, configuration, and inspection;
    (vi) Test equipment operation, calibration, and maintenance;
    (vii) Quality control procedures and their purpose;
    (viii) Public relations; and
    (ix) Safety and health issues related to the inspection process.
    (2) If inspector training is not administered by the program, the 
responsible state agency shall monitor and evaluate the training program 
delivery.
    (3) In order to complete the training requirement, a trainee shall 
pass (i.e., a minimum of 80% of correct responses or lower if an 
occupational analysis justifies it) a written test covering all aspects 
of the training. In addition, a hands-on test shall be administered in 
which the trainee demonstrates without assistance the ability to conduct 
a proper inspection, to properly utilize equipment and to follow other 
procedures. Inability to properly conduct all test procedures shall 
constitute failure of the test. The program shall take appropriate steps 
to insure the security and integrity of the testing process.
    (b) Licensing and certification. (1) All inspectors shall be either 
licensed by the program (in the case of test-and-repair systems that do 
not use contracts with stations) or certified by an organization other 
than the employer (in test-only programs and test-and-repair programs 
that require station owners to enter into contracts with the state) in 
order to perform official inspections.
    (2) Completion of inspector training and passing required tests 
shall be a condition of licensing or certification.
    (3) Inspector licenses and certificates shall be valid for no more 
than 2 years, at which point refresher training and testing shall be 
required prior to renewal. Alternative approaches based on more 
comprehensive skill examination and determination of inspector 
competency may be used.
    (4) Licenses or certificates shall not be considered a legal right 
but rather a privilege bestowed by the program conditional upon 
adherence to program requirements.
    (c) SIP requirements. The SIP shall include a description of the 
training program, the written and hands-on tests, and the licensing or 
certification process.



Sec. 51.368  Public information and consumer protection.

    (a) Public awareness. The SIP shall include a plan for informing the 
public on an ongoing basis throughout the life of the I/M program of the 
air quality problem, the requirements of federal and state law, the role 
of motor vehicles in the air quality problem, the need for and benefits 
of an inspection program, how to maintain a vehicle in a low-emission 
condition, how to find a

[[Page 815]]

qualified repair technician, and the requirements of the I/M program. 
Motorists that fail the I/M test in enhanced I/M areas shall be offered 
a list of repair facilities in the area and information on the results 
of repairs performed by repair facilities in the area, as described in 
Sec. 51.369(b)(1) of this subpart. Motorists that fail the I/M test 
shall also be provided with software-generated, interpretive diagnostic 
information based on the particular portions of the test that were 
failed.
    (b) Consumer protection. The oversight agency shall institute 
procedures and mechanisms to protect the public from fraud and abuse by 
inspectors, mechanics, and others involved in the I/M program. This 
shall include a challenge mechanism by which a vehicle owner can contest 
the results of an inspection. It shall include mechanisms for protecting 
whistle blowers and following up on complaints by the public or others 
involved in the process. It shall include a program to assist owners in 
obtaining warranty covered repairs for eligible vehicles that fail a 
test. The SIP shall include a detailed consumer protection plan.



Sec. 51.369  Improving repair effectiveness.

    Effective repairs are the key to achieving program goals and the 
state shall take steps to ensure the capability exists in the repair 
industry to repair vehicles that fail I/M tests.
    (a) Technical assistance. The oversight agency shall provide the 
repair industry with information and assistance related to vehicle 
inspection diagnosis and repair.
    (1) The agency shall regularly inform repair facilities of changes 
in the inspection program, training course schedules, common problems 
being found with particular engine families, diagnostic tips and the 
like.
    (2) The agency shall provide a hot line service to assist repair 
technicians with specific repair problems, answer technical questions 
that arise in the repair process, and answer questions related to the 
legal requirements of state and federal law with regard to emission 
control device tampering, engine switching, or similar issues.
    (b) Performance monitoring. (1) In enhanced I/M program areas, the 
oversight agency shall monitor the performance of individual motor 
vehicle repair facilities, and provide to the public at the time of 
initial failure, a summary of the performance of local repair facilities 
that have repaired vehicles for retest. Performance monitoring shall 
include statistics on the number of vehicles submitted for a retest 
after repair by the repair facility, the percentage passing on first 
retest, the percentage requiring more than one repair/retest trip before 
passing, and the percentage receiving a waiver. Programs may provide 
motorists with alternative statistics that convey similar information on 
the relative ability of repair facilities in providing effective and 
convenient repair, in light of the age and other characteristics of 
vehicles presented for repair at each facility.
    (2) Programs shall provide feedback, including statistical and 
qualitative information to individual repair facilities on a regular 
basis (at least annually) regarding their success in repairing failed 
vehicles.
    (3) A prerequisite for a retest shall be a completed repair form 
that indicates which repairs were performed, as well as any technician 
recommended repairs that were not performed, and identification of the 
facility that performed the repairs.
    (c) Repair technician training. The state shall assess the 
availability of adequate repair technician training in the I/M area and, 
if the types of training described in paragraphs (c)(1) through (4) of 
this section are not currently available, shall insure that training is 
made available to all interested individuals in the community either 
through private or public facilities. This may involve working with 
local community colleges or vocational schools to add curricula to 
existing programs or start new programs or it might involve attracting 
private training providers to offer classes in the area. The training 
available shall include:
    (1) Diagnosis and repair of malfunctions in computer controlled, 
close-loop vehicles;

[[Page 816]]

    (2) The application of emission control theory and diagnostic data 
to the diagnosis and repair of failures on the transient emission test 
and the evaporative system functional checks;
    (3) Utilization of diagnostic information on systematic or repeated 
failures observed in the transient emission test and the evaporative 
system functional checks; and
    (4) General training on the various subsystems related to engine 
emission control.
    (d) SIP requirements. The SIP shall include a description of the 
technical assistance program to be implemented, a description of the 
procedures and criteria to be used in meeting the performance monitoring 
requirements of this section, and a description of the repair technician 
training resources available in the community.



Sec. 51.370  Compliance with recall notices.

    States shall establish methods to ensure that vehicles subject to 
enhanced I/M and that are included in either a ``Voluntary Emissions 
Recall'' as defined at 40 CFR 85.1902(d), or in a remedial plan 
determination made pursuant to section 207(c) of the Act, receive the 
required repairs. States shall require that owners of recalled vehicles 
have the necessary recall repairs completed, either in order to complete 
an annual or biennial inspection process or to obtain vehicle 
registration renewal. All recalls for which owner notification occurs 
after January 1, 1995 shall be included in the enhanced I/M recall 
requirement.
    (a) General requirements. (1) The state shall have an electronic 
means to identify recalled vehicles based on lists of VINs with 
unresolved recalls made available by EPA, the vehicle manufacturers, or 
a third party supplier approved by the Administrator. The state shall 
update its list of unresolved recalls on a quarterly basis at a minimum.
    (2) The state shall require owners or lessees of vehicles with 
unresolved recalls to show proof of compliance with recall notices in 
order to complete either the inspection or registration cycle.
    (3) Compliance shall be required on the next registration or 
inspection date, allowing a reasonable period to comply, after 
notification of recall was received by the state.
    (b) Enforcement. (1) A vehicle shall either fail inspection or be 
denied vehicle registration if the required recall repairs have not been 
completed.
    (2) In the case of vehicles obtaining recall repairs but remaining 
on the updated list provided in paragraph (a)(1) of this section, the 
state shall have a means of verifying completion of the required 
repairs; electronic records or paper receipts provided by the authorized 
repair facility shall be required. The vehicle inspection or 
registration record shall be modified to include (or be supplemented 
with other VIN-linked records which include) the recall campaign 
number(s) and the date(s) repairs were performed. Documentation 
verifying required repairs shall include the following:
    (i) The VIN, make, and model year of the vehicle; and
    (ii) The recall campaign number and the date repairs were completed.
    (c) Reporting requirements. The state shall submit to EPA, by July 
of each year for the previous calendar year, an annual report providing 
the following information:
    (1) The number of vehicles in the I/M area initially listed as 
having unresolved recalls, segregated by recall campaign number;
    (2) The number of recalled vehicles brought into compliance by 
owners;
    (3) The number of listed vehicles with unresolved recalls that, as 
of the end of the calendar year, were not yet due for inspection or 
registration;
    (4) The number of recalled vehicles still in non-compliance that 
have either failed inspection or been denied registration on the basis 
of non-compliance with recall; and
    (5) The number of recalled vehicles that are otherwise not in 
compliance.
    (d) SIP submittals. The SIP shall describe the procedures used to 
incorporate the vehicle lists provided in paragraph (a)(1) of this 
section into the inspection or registration database, the quality 
control methods used to insure that recall repairs are properly 
documented and tracked, and the method

[[Page 817]]

(inspection failure or registration denial) used to enforce the recall 
requirements.



Sec. 51.371  On-road testing.

    On-road testing is defined as the measurement of HC, CO, NOx, 
and/or CO2 emissions on any road or roadside in the nonattainment 
area or the I/M program area. On-road testing is required in enhanced I/
M areas and is an option for basic I/M areas.
    (a) General requirements. (1) On-road testing is to be part of the 
emission testing system, but is to be a complement to testing otherwise 
required.
    (2) On-road testing is not required in every season or on every 
vehicle but shall evaluate the emission performance of 0.5% of the 
subject fleet statewide or 20,000 vehicles, whichever is less, including 
any vehicles that may be subject to the follow-up inspection provisions 
of paragraph (a)(4) of this section, each inspection cycle.
    (3) The on-road testing program shall provide information about the 
emission performance of in-use vehicles, by measuring on-road emissions 
through the use of remote sensing devices or roadside pullovers 
including tailpipe emission testing. The program shall collect, analyze 
and report on-road testing data.
    (4) Owners of vehicles that have previously been through the normal 
periodic inspection and passed the final retest and found to be high 
emitters shall be notified that the vehicles are required to pass an 
out-of-cycle follow-up inspection; notification may be by mailing in the 
case of remote sensing on-road testing or through immediate notification 
if roadside pullovers are used.
    (b) SIP requirements. (1) The SIP shall include a detailed 
description of the on-road testing program, including the types of 
testing, test limits and criteria, the number of vehicles (the 
percentage of the fleet) to be tested, the number of employees to be 
dedicated to the on-road testing effort, the methods for collecting, 
analyzing, utilizing, and reporting the results of on-road testing and, 
the portion of the program budget to be dedicated to on-road testing.
    (2) The SIP shall include the legal authority necessary to implement 
the on-road testing program, including the authority to enforce off-
cycle inspection and repair requirements.
    (3) Emission reduction credit for on-road testing programs shall be 
granted for a program designed to obtain significant emission reductions 
over and above those already predicted to be achieved by other aspects 
of the I/M program. The SIP shall include technical support for the 
claimed additional emission reductions.



Sec. 51.372  State implementation plan submissions.

    (a) SIP submittals. The SIP shall address each of the elements 
covered in this subpart, including, but not limited to:
    (1) A schedule of implementation of the program including interim 
milestones leading to mandatory testing. The milestones shall include, 
at a minimum:
    (i) Passage of enabling statutory or other legal authority;
    (ii) Proposal of draft regulations and promulgation of final 
regulations;
    (iii) Issuance of final specifications and procedures;
    (iv) Issuance of final Request for Proposals (if applicable);
    (v) Licensing or certifications of stations and inspectors;
    (vi) The date mandatory testing will begin for each model year to be 
covered by the program;
    (vii) The date full-stringency cutpoints will take effect;
    (viii) All other relevant dates;
    (2) An analysis of emission level targets for the program using the 
most current EPA mobile source emission model or an alternative approved 
by the Administrator showing that the program meets the performance 
standard described in Sec. 51.351 or Sec. 51.352 of this subpart, as 
applicable;
    (3) A description of the geographic coverage of the program, 
including ZIP codes if the program is not county-wide;
    (4) A detailed discussion of each of the required design elements, 
including provisions for federal facility compliance;

[[Page 818]]

    (5) Legal authority requiring or allowing implementation of the I/M 
program and providing either broad or specific authority to perform all 
required elements of the program;
    (6) Legal authority for I/M program operation until such time as it 
is no longer necessary (i.e., until a Section 175 maintenance plan 
without an I/M program is approved by EPA);
    (7) Implementing regulations, interagency agreements, and memoranda 
of understanding; and
    (8) Evidence of adequate funding and resources to implement all 
aspects of the program.
    (b) Submittal schedule. The SIP shall be submitted to EPA according 
to the following schedule--
    (1) States shall submit a SIP revision by November 15, 1992 which 
includes the schedule required in paragraph (a)(1) of this section and a 
formal commitment from the Governor to the adoption and implementation 
of an I/M program meeting all requirements of this subpart.
    (2) A SIP revision, including all necessary legal authority and the 
items specified in (a)(1) through (a)(8) of this section, shall be 
submitted no later than November 15, 1993.
    (3) States will be required to revise SIPs as EPA develops further 
regulations. Revisions to incorporate onboard diagnostic checks in the 
I/M program shall be submitted within 2 years after promulgation of OBD 
regulations under section 202(m)(3) of the Clean Air Act, as amended.
    (c) Redesignation requests. Any nonattainment area that EPA 
determines would otherwise qualify for redesignation from nonattainment 
to attainment shall receive full approval of a State Implementation Plan 
(SIP) submittal under Sections 182(a)(2)(B) or 182(b)(4) if the 
submittal contains the following elements:

    (1) Legal authority to implement a basic I/M program (or enhanced if 
the state chooses to opt up) as required by this subpart. The 
legislative authority for an I/M program shall allow the adoption of 
implementing regulations without requiring further legislation.
    (2) A request to place the I/M plan (if no I/M program is currently 
in place or if an I/M program has been terminated,) or the I/M upgrade 
(if the existing I/M program is to continue without being upgraded) into 
the contingency measures portion of the maintenance plan upon 
redesignation.
    (3) A contingency measure consisting of a commitment by the Governor 
or the Governor's designee to adopt or consider adopting regulations to 
implement an I/M program to correct a violation of the ozone or CO 
standard or other air quality problem, in accordance with the provisions 
of the maintenance plan.
    (4) A contingency commitment that includes an enforceable schedule 
for adoption and implementation of the I/M program, and appropriate 
milestones. The schedule shall include the date for submission of a SIP 
meeting all of the requirements of this subpart. Schedule milestones 
shall be listed in months from the date EPA notifies the state that it 
is in violation of the ozone or CO standard or any earlier date 
specified in the state plan. Unless the state, in accordance with the 
provisions of the maintenance plan, chooses not to implement I/M, it 
must submit a SIP revision containing an I/M program no more than 18 
months after notification by EPA.
    (d) Basic areas continuing operation of I/M programs as part of 
their maintenance plan without implemented upgrades shall be assumed to 
be 80% as effective as an implemented, upgraded version of the same I/M 
program design, unless a state can demonstrate using operating 
information that the I/M program is more effective than the 80% level.
    (e) SIP submittals to correct violations. SIP submissions required 
pursuant to a violation of the ambient ozone or CO standard (as 
discussed in paragraph (c) of this section) shall address all of the 
requirements of this subpart. The SIP shall demonstrate that performance 
standards in either Sec. 51.351 or Sec. 51.352 shall be met using an 
evaluation date (rounded to the nearest January for carbon monoxide and 
July for hydrocarbons) seven years after the date EPA notifies the state 
that it is in violation of the ozone or CO standard or any earlier date 
specified in the state plan. Emission standards for vehicles subject to 
an IM240 test may be phased

[[Page 819]]

in during the program but full standards must be in effect for at least 
one complete test cycle before the end of the 5-year period. All other 
requirements shall take effect within 24 months of the date EPA notifies 
the state that it is in violation of the ozone or CO standard or any 
earlier date specified in the state plan. The phase-in allowances of 
Sec. 51.373(c) of this subpart shall not apply.

[57 FR 52987, Nov. 5, 1992, as amended at 60 FR 1738, Jan. 5, 1995; 60 
FR 48036, Sept. 18, 1995]



Sec. 51.373  Implementation deadlines.

    I/M programs shall be implemented as expeditiously as practicable.
    (a) Decentralized basic programs shall be fully implemented by 
January 1, 1994, and centralized basic programs shall be fully 
implemented by July 1, 1994. More implementation time may be approved by 
the Administrator if an enhanced I/M program is implemented.
    (b) For areas newly required to implement basic I/M after 
promulgation of this subpart (as a result of failure to attain, 
reclassification, or redesignation) decentralized programs shall be 
fully implemented within one year of obtaining legal authority. 
Centralized programs shall be fully implemented within two years of 
obtaining legal authority. More implementation time may be approved by 
the Administrator if an enhanced I/M program is implemented.
    (c) All requirements related to enhanced I/M programs shall be 
implemented by January 1, 1995, with the following exceptions.
    (1) Areas switching from an existing test-and-repair network to a 
test-only network may phase in the change between January of 1995 and 
January of 1996. Starting in January of 1995 at least 30% of the subject 
vehicles shall participate in the test-only system (in states with 
multiple I/M areas, implementation is not required in every area by 
January 1995 as long as statewide, 30% of the subject vehicles are 
involved in testing) and shall be subject to the new test procedures 
(including the evaporative system checks, visual inspections, and 
tailpipe emission tests). By January 1, 1996, all applicable vehicle 
model years and types shall be included in the test-only system. During 
the phase-in period, all requirements of this subpart shall be applied 
to the test-only portion of the program; existing requirements may 
continue to apply for the test-and-repair portion of the program until 
it is phased out by January 1, 1996.
    (2) Areas starting new test-only programs and those with existing 
test-only programs may also phase in the new test procedures between 
January 1, 1995 and January 1, 1996. Other program requirements shall be 
fully implemented by January 1, 1995.
    (d) In the case of areas newly required to implement enhanced I/M 
after promulgation of this subpart (as a result of failure to attain, 
reclassification, or nonattainment designation) enhanced I/M shall be 
implemented within 24 months of obtaining legal authority.
    (e) Legal authority for the implementing agency or agencies to 
implement and enforce an I/M program consistent with this subpart shall 
be obtained from the state legislature or local governing body in the 
first legislative session after November 5, 1992, or after being newly 
required to implement or upgrade an I/M program as in paragraph (b) or 
(c) of this section, including sessions already in progress if at least 
21 days remain before the final bill submittal deadline.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993]

                   Appendices to Subpart S of Part 51

 Appendix A to Subpart S--Calibrations, Adjustments and Quality Control

    (I) Steady-State Test Equipment
    States may opt to use transient emission test equipment for steady-
state tests and follow the quality control requirements in paragraph 
(II) of this appendix instead of the following requirements.
    (a) Equipment shall be calibrated in accordance with the 
manufacturers' instructions.
    (b) Prior to each test. (1) Hydrocarbon hang-up check. Immediately 
prior to each test the analyzer shall automatically perform a 
hydrocarbon hang-up check. If the HC reading, when the probe is sampling 
ambient air, exceeds 20 ppm, the system shall be purged with clean air 
or zero gas. The analyzer shall

[[Page 820]]

be inhibited from continuing the test until HC levels drop below 20 ppm.
    (2) Automatic zero and span. The analyzer shall conduct an automatic 
zero and span check prior to each test. The span check shall include the 
HC, CO, and CO2 channels, and the NO and O2 channels, if present. 
If zero and/or span drift cause the signal levels to move beyond the 
adjustment range of the analyzer, it shall lock out from testing.
    (3) Low flow. The system shall lock out from testing if sample flow 
is below the acceptable level as defined in paragraph (I)(b)(6) of 
appendix D to this subpart.
    (c) Leak check. A system leak check shall be performed within 
twenty-four hours before the test in low volume stations (those 
performing less than the 4,000 inspections per year) and within four 
hours in high-volume stations (4,000 or more inspections per year) and 
may be performed in conjunction with the gas calibration described in 
paragraph (I)(d)(1) of this appendix. If a leak check is not performed 
within the preceding twenty-four hours in low volume stations and within 
four hours in high-volume stations or if the analyzer fails the leak 
check, the analyzer shall lock out from testing. The leak check shall be 
a procedure demonstrated to effectively check the sample hose and probe 
for leaks and shall be performed in accordance with good engineering 
practices. An error of more than 2% of the reading using low 
range span gas shall cause the analyzer to lock out from testing and 
shall require repair of leaks.
    (d) Gas calibration. (1) On each operating day in high-volume 
stations, analyzers shall automatically require and successfully pass a 
two-point gas calibration for HC, CO, and CO2 and shall continually 
compensate for changes in barometric pressure. Calibration shall be 
checked within four hours before the test and the analyzer adjusted if 
the reading is more than 2% different from the span gas value. In low-
volume stations, analyzers shall undergo a two-point calibration within 
seventy-two hours before each test, unless changes in barometric 
pressure are compensated for automatically and statistical process 
control demonstrates equal or better quality control using different 
frequencies. Gas calibration shall be accomplished by introducing span 
gas that meets the requirements of paragraph (I)(d)(3) of this appendix 
into the analyzer through the calibration port. If the analyzer reads 
the span gas within the allowable tolerance range (i.e., the square root 
of sum of the squares of the span gas tolerance described in paragraph 
(I)(d)(3) of this appendix and the calibration tolerance, which shall be 
equal to 2%), no adjustment of the analyzer is necessary. The gas 
calibration procedure shall correct readings that exceed the allowable 
tolerance range to the center of the allowable tolerance range. The 
pressure in the sample cell shall be the same with the calibration gas 
flowing during calibration as with the sample gas flowing during 
sampling. If the system is not calibrated, or the system fails the 
calibration check, the analyzer shall lock out from testing.
    (2) Span points. A two point gas calibration procedure shall be 
followed. The span shall be accomplished at one of the following pairs 
of span points:

(A)  300--ppm propane (HC)
    1.0--% carbon monoxide (CO)
    6.0--% carbon dioxide (CO2)
    1000--ppm nitric oxide (if equipped with NO)
    1200--ppm propane (HC)
    4.0--% carbon monoxide (CO)
    12.0--% carbon dioxide (CO2)
    3000--ppm nitric oxide (if equipped with NO)
(B)  0--ppm propane
    0.0--% carbon monoxide
    0.0--% carbon dioxide
    0--ppm nitric oxide (if equipped with NO)
    600--ppm propane (HC)
    1.6--% carbon monoxide (CO)
    11.0--% carbon dioxide (CO2)
    1200--ppm nitric oxide (if equipped with NO)

    (3) Span gases. The span gases used for the gas calibration shall be 
traceable to National Institute of Standards and Technology (NIST) 
standards 2%, and shall be within two percent of the span 
points specified in paragraph (d)(2) of this appendix. Zero gases shall 
conform to the specifications given in Sec. 86.114-79(a)(5) of this 
chapter.
    (e) Dynamometer checks--(1) Monthly check. Within one month 
preceding each loaded test, the accuracy of the roll speed indicator 
shall be verified and the dynamometer shall be checked for proper power 
absorber settings.
    (2) Semi-annual check. Within six months preceding each loaded test, 
the road-load response of the variable-curve dynamometer or the 
frictional power absorption of the dynamometer shall be checked by a 
coast down procedure similar to that described in Sec. 86.118-78 of this 
chapter. The check shall be done at 30 mph, and a power absorption load 
setting to generate a total horsepower (hp) of 4.1 hp. The actual coast 
down time from 45 mph to 15 mph shall be within 1 second of 
the time calculated by the following equation:


                                                                        
                                                     0.0508  x  W       
             Coast Down Time               = ---------------------------
                                                          HP            
                                                                        


[[Page 821]]

where W is the total inertia weight as represented by the weight of the 
rollers (excluding free rollers), and any inertia flywheels used, 
measured in pounds. If the coast down time is not within the specified 
tolerance the dynamometer shall be taken out of service and corrective 
action shall be taken.
    (f) Other checks. In addition to the above periodic checks, these 
shall also be used to verify system performance under the following 
special circumstances.
    (1) Gas Calibration. (A) Each time the analyzer electronic or 
optical systems are repaired or replaced, a gas calibration shall be 
performed prior to returning the unit to service.
    (B) In high-volume stations, monthly multi-point calibrations shall 
be performed. Low-volume stations shall perform multi-point calibrations 
every six months. The calibration curve shall be checked at 20%, 40%, 
60%, and 80% of full scale and adjusted or repaired if the 
specifications in appendix D(I)(b)(1) to this subpart are not met.
    (2) Leak checks. Each time the sample line integrity is broken, a 
leak check shall be performed prior to testing.

                      (II) Transient Test Equipment

    (a) Dynamometer. Once per week, the calibration of each dynamometer 
and each fly wheel shall be checked by a dynamometer coast-down 
procedure comparable to that in Sec. 86.118-78 of this chapter between 
the speeds of 55 to 45 mph, and between 30 to 20 mph. All rotating 
dynamometer components shall be included in the coast-down check for the 
inertia weight selected. For dynamometers with uncoupled rolls, the 
uncoupled rollers may undergo a separate coast-down check. If a vehicle 
is used to motor the dynamometer to the beginning coast-down speed, the 
vehicle shall be lifted off the dynamometer rolls before the coast-down 
test begins. If the difference between the measured coast-down time and 
the theoretical coast-down time is greater than +1 second, the system 
shall lock out, until corrective action brings the dynamometer into 
calibration.
    (b) Constant volume sampler. (1) The constant volume sampler (CVS) 
flow calibration shall be checked daily by a procedure that identifies 
deviations in flow from the true value. Deviations greater than 
4% shall be corrected.
    (2) The sample probe shall be cleaned and checked at least once per 
month. The main CVS venturi shall be cleaned and checked at least once 
per year.
    (3) Verification that flow through the sample probe is adequate for 
the design shall be done daily. Deviations greater than the design 
tolerances shall be corrected.
    (c) Analyzer system --(1) Calibration checks. (A) Upon initial 
operation, calibration curves shall be generated for each analyzer. The 
calibration curve shall consider the entire range of the analyzer as one 
curve. At least 6 calibration points plus zero shall be used in the 
lower portion of the range corresponding to an average concentration of 
approximately 2 gpm for HC, 30 gpm for CO, 3 gpm for NOx, and 400 
gpm for CO2. For the case where a low and a high range analyzer is 
used, the high range analyzer shall use at least 6 calibration points 
plus zero in the lower portion of the high range scale corresponding to 
approximately 100% of the full-scale value of the low range analyzer. 
For all analyzers, at least 6 calibration points shall also be used to 
define the calibration curve in the region above the 6 lower calibration 
points. Gas dividers may be used to obtain the intermediate points for 
the general range classifications specified. The calibration curves 
generated shall be a polynomial of no greater order than 4th order, and 
shall fit the date within 0.5% at each calibration point.
    (B) For all calibration curves, curve checks, span adjustments, and 
span checks, the zero gas shall be considered a down-scale reference 
gas, and the analyzer zero shall be set at the trace concentration value 
of the specific zero gas used.
    (2) The basic curve shall be checked monthly by the same procedure 
used to generate the curve, and to the same tolerances.
    (3) On a daily basis prior to vehicle testing--
    (A) The curve for each analyzer shall be checked by adjusting the 
analyzer to correctly read a zero gas and an up-scale span gas, and then 
by correctly reading a mid-scale span gas within 2% of point. If the 
analyzer does not read the mid-scale span point within 2% of point, the 
system shall lock out. The up-scale span gas concentration for each 
analyzer shall correspond to approximately 80 percent of full scale, and 
the mid-point concentration shall correspond to approximately 15 percent 
of full scale; and
    (B) After the up-scale span check, each analyzer in a given facility 
shall analyze a sample of a random concentration corresponding to 
approximately 0.5 to 3 times the cut point (in gpm) for the constituent. 
The value of the random sample may be determined by a gas blender. The 
deviation in analysis from the sample concentration for each analyzer 
shall be recorded and compared to the historical mean and standard 
deviation for the analyzers at the facility and at all facilities. Any 
reading exceeding 3 sigma shall cause the analyzer to lock out.
    (4) Flame ionization detector check. Upon initial operation, and 
after maintenance to the detector, each Flame Ionization Detector (FID) 
shall be checked, and adjusted if necessary, for proper peaking and 
characterization. Procedures described in SAE Paper No. 770141 are 
recommended for this purpose. A copy of this paper may be obtained from 
the Society of Automotive Engineers, Inc.

[[Page 822]]

(SAE), 400 Commonwealth Drive, Warrendale, Pennsylvania, 15096-0001. 
Additionally, every month the response of each FID to a methane 
concentration of approximately 50 ppm CH4 shall be checked. If the 
response is outside of the range of 1.10 to 1.20, corrective action 
shall be taken to bring the FID response within this range. The response 
shall be computed by the following formula:

                                                                        
                                                 FID response in ppmC   
        Ratio of Methane Response         = ----------------------------
                                               ppm methane in cylinder  
                                                                        

    (5) Spanning frequency. The zero and up-scale span point shall be 
checked, and adjusted if necessary, at 2 hour intervals following the 
daily mid-scale curve check. If the zero or the up-scale span point 
drifts by more than 2% for the previous check (except for the first 
check of the day), the system shall lock out, and corrective action 
shall be taken to bring the system into compliance.
    (6) Spanning limit checks. The tolerance on the adjustment of the 
up-scale span point is 0.4% of point. A software algorithm to perform 
the span adjustment and subsequent calibration curve adjustment shall be 
used. However, software up-scale span adjustments greater than 
10% shall cause the system to lock out, requiring system 
maintenance.
    (7) Integrator checks. Upon initial operation, and every three 
months thereafter, emissions from a randomly selected vehicle with 
official test value greater than 60% of the standard (determined 
retrospectively) shall be simultaneously sampled by the normal 
integration method and by the bag method in each lane. The data from 
each method shall be put into a historical data base for determining 
normal and deviant performance for each test lane, facility, and all 
facilities combined. Specific deviations exceeding 5% shall 
require corrective action.
    (8) Interference. CO and CO2 analyzers shall be checked prior 
to initial service, and on a yearly basis thereafter, for water 
interference. The specifications and procedures used shall generally 
comply with either Sec. 86.122-78 or Sec. 86.321-79 of this chapter.
    (9) NOx converter check. The converter efficiency of the 
NO2 to NO converter shall be checked on a weekly basis. The check 
shall generally conform to Sec. 86.123-78 of this chapter, or EPA MVEL 
Form 305-01. Equivalent methods may be approved by the Administrator.
    (10) NO/NOx flow balance. The flow balance between the NO and 
NOx test modes shall be checked weekly. The check may be combined 
with the NOx convertor check as illustrated in EPA MVEL Form 305-
01.
    (11) Additional checks. Additional checks shall be performed on the 
HC, CO, CO2, and NOx analyzers according to best engineering 
practices for the measurement technology used to ensure that 
measurements meet specified accuracy requirements.
    (12) System artifacts (hang-up). Prior to each test a comparison 
shall be made between the background HC reading, the HC reading measured 
through the sample probe (if different), and the zero gas. Deviations 
from the zero gas greater than 10 parts per million carbon (ppmC) shall 
cause the analyzer to lock out.
    (13) Ambient background. The average of the pre-test and post-test 
ambient background levels shall be compared to the permissible levels of 
10 ppmC HC, 20 ppm CO, and 1 ppm NOx. If the permissible levels are 
exceeded, the test shall be voided and corrective action taken to lower 
the ambient background concentrations.
    (14) Analytical gases. Zero gases shall meet the requirements of 
Sec. 86.114-79(a)(5) of this chapter. NOx calibration gas shall be 
a single blend using nitrogen as the diluent. Calibration gas for the 
flame ionization detector shall be a single blend of propane with a 
diluent of air. Calibration gases for CO and CO2 shall be single 
blends using nitrogen or air as a diluent. Multiple blends of HC, CO, 
and CO2 in air may be used if shown to be stable and accurate.

                       (III) Purge Analysis System

    On a daily basis each purge flow meter shall be checked with a 
simulated purge flow against a reference flow measuring device with 
performance specifications equal to or better than those specified for 
the purge meter. The check shall include a mid-scale rate check, and a 
total flow check between 10 and 20 liters. Deviations greater than 
5% shall be corrected. On a monthly basis, the calibration 
of purge meters shall be checked for proper rate and total flow with 
three equally spaced points across the flow rate and the totalized flow 
range. Deviations exceeding the specified accuracy shall be corrected. 
The dynamometer quality assurance checks required under paragraph (II) 
of this appendix shall also apply to the dynamometer used for purge 
tests.

            (IV) Evaporative System Integrity Test Equipment

    (a) On a weekly basis pressure measurement devices shall be checked 
against a reference device with performance specifications equal to or 
better than those specified for the measurement device. Deviations 
exceeding the performance specifications shall be corrected. Flow 
measurement devices, if any, shall be checked according to paragraph III 
of this appendix.

[[Page 823]]

    (b) Systems that monitor evaporative system leaks shall be checked 
for integrity on a daily basis by sealing and pressurizing.

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993]

                Appendix B to Subpart S--Test Procedures

                              (I) Idle test

    (a) General requirements--(1) Exhaust gas sampling algorithm. The 
analysis of exhaust gas concentrations shall begin 10 seconds after the 
applicable test mode begins. Exhaust gas concentrations shall be 
analyzed at a minimum rate of two times per second. The measured value 
for pass/fail determinations shall be a simple running average of the 
measurements taken over five seconds.
    (2) Pass/fail determination. A pass or fail determination shall be 
made for each applicable test mode based on a comparison of the short 
test standards contained in appendix C to this subpart, and the measured 
value for HC and CO as described in paragraph (I)(a)(1) of this 
appendix. A vehicle shall pass the test mode if any pair of simultaneous 
measured values for HC and CO are below or equal to the applicable short 
test standards. A vehicle shall fail the test mode if the values for 
either HC or CO, or both, in all simultaneous pairs of values are above 
the applicable standards.
    (3) Void test conditions. The test shall immediately end and any 
exhaust gas measurements shall be voided if the measured concentration 
of CO plus CO2 falls below six percent or the vehicle's engine 
stalls at any time during the test sequence.
    (4) Multiple exhaust pipes. Exhaust gas concentrations from vehicle 
engines equipped with multiple exhaust pipes shall be sampled 
simultaneously.
    (5) This test shall be immediately terminated upon reaching the 
overall maximum test time.
    (b) Test sequence. (1) The test sequence shall consist of a first-
chance test and a second-chance test as follows:
    (i) The first-chance test, as described under paragraph (c) of this 
section, shall consist of an idle mode.
    (ii) The second-chance test as described under paragraph (I)(d) of 
this appendix shall be performed only if the vehicle fails the first-
chance test.
    (2) The test sequence shall begin only after the following 
requirements are met:
    (i) The vehicle shall be tested in as-received condition with the 
transmission in neutral or park and all accessories turned off. The 
engine shall be at normal operating temperature (as indicated by a 
temperature gauge, temperature lamp, touch test on the radiator hose, or 
other visual observation for overheating).
    (ii) The tachometer shall be attached to the vehicle in accordance 
with the analyzer manufacturer's instructions.
    (iii) The sample probe shall be inserted into the vehicle's tailpipe 
to a minimum depth of 10 inches. If the vehicle's exhaust system 
prevents insertion to this depth, a tailpipe extension shall be used.
    (iv) The measured concentration of CO plus CO2 shall be greater 
than or equal to six percent.
    (c) First-chance test. The test timer shall start (tt=0) when the 
conditions specified in paragraph (I)(b)(2) of this appendix are met. 
The first-chance test shall have an overall maximum test time of 145 
seconds (tt=145). The first-chance test shall consist of an idle mode 
only.
    (1) The mode timer shall start (mt=0) when the vehicle engine speed 
is between 350 and 1100 rpm. If engine speed exceeds 1100 rpm or falls 
below 350 rpm, the mode timer shall reset zero and resume timing. The 
minimum mode length shall be determined as described under paragraph 
(I)(c)(2) of this appendix. The maximum mode length shall be 90 seconds 
elapsed time (mt=90).
    (2) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (i) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.
    (ii) The vehicle shall pass the idle mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30), if prior 
to that time the criteria of paragraph (I)(c)(2)(i) of this appendix are 
not satisfied and the measured values are less than or equal to the 
applicable short test standards as described in paragraph (I)(a)(2) of 
this appendix.
    (iii) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), the measured values are less 
than or equal to the applicable short test standards as described in 
paragraph (I)(a)(2) of this appendix.
    (iv) The vehicle shall fail the idle mode and the test shall be 
terminated if none of the provisions of paragraphs (I)(c)(2)(i), (ii) 
and (iii) of this appendix is satisfied by an elapsed time of 90 seconds 
(mt=90). Alternatively, the vehicle may be failed if the provisions of 
paragraphs (I)(c)(2)(i) and (ii) of this appendix are not met within an 
elapsed time of 30 seconds.
    (v) Optional. The vehicle may fail the first-chance test and the 
second-chance test shall be omitted if no exhaust gas concentration

[[Page 824]]

lower than 1800 ppm HC is found by an elapsed time of 30 seconds 
(mt=30).
    (d) Second-chance test. If the vehicle fails the first-chance test, 
the test timer shall reset to zero (tt=0) and a second-chance test shall 
be performed. The second-chance test shall have an overall maximum test 
time of 425 seconds (tt=425). The test shall consist of a 
preconditioning mode followed immediately by an idle mode.
    (1) Preconditioning mode. The mode timer shall start (mt=0) when the 
engine speed is between 2200 and 2800 rpm. The mode shall continue for 
an elapsed time of 180 seconds (mt=180). If engine speed falls below 
2200 rpm or exceeds 2800 rmp for more than five seconds in any one 
excursion, or 15 seconds over all excursions, the mode timer shall reset 
to zero and resume timing.
    (2) Idle mode--(i) Ford Motor Company and Honda vehicles. The 
engines of 1981-1987 Ford Motor Company vehicles and 1984-1985 Honda 
Preludes shall be shut off for not more than 10 seconds and restarted. 
This procedure may also be used for 1988-1989 Ford Motor Company 
vehicles but should not be used for other vehicles. The probe may be 
removed from the tailpipe or the sample pump turned off if necessary to 
reduce analyzer fouling during the restart procedure.
    (ii) The mode timer shall start (mt=0) when the vehicle engine speed 
is between 350 and 1100 rpm. If engine speed exceeds 1100 rpm or falls 
below 350 rpm, the mode timer shall reset to zero and resume timing. The 
minimum idle mode length shall be determined as described in paragraph 
(I)(d)(2)(iii) of this appendix. The maximum idle mode length shall be 
90 seconds elapsed time (mt=90).
    (iii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the idle mode shall be terminated as follows:
    (A) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.
    (B) The vehicle shall pass the idle mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30), if prior 
to that time the criteria of paragraph (I)(d)(2)(iii)(A) of this 
appendix are not satisfied and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(I)(a)(2) of this appendix.
    (C) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), measured values are less than or 
equal to the applicable short test standards described in paragraph 
(I)(a)(2) of this appendix.
    (D) The vehicle shall fail the idle mode and the test shall be 
terminated if none of the provisions of paragraphs (I)(d)(2)(iii)(A), 
(d)(2)(iii)(B), and (d)(2)(iii)(C) of this appendix are satisfied by an 
elapsed time of 90 seconds (mt=90).

                        (II) Two Speed Idle Test

    (a) General requirements--(1) Exhaust gas sampling algorithm. The 
analysis of exhaust gas concentrations shall begin 10 seconds after the 
applicable test mode begins. Exhaust gas concentrations shall be 
analyzed at a rate of two times per second. The measured value for pass/
fail determinations shall be a simple running average of the 
measurements taken over five seconds.
    (2) Pass/fail determination. A pass or fail determination shall be 
made for each applicable test mode based on a comparison of the short 
test standards contained in Appendix C to this subpart, and the measured 
value for HC and CO as described in paragraph (II)(a)(1) of this 
appendix. A vehicle shall pass the test mode if any pair of simultaneous 
values for HC and CO are below or equal to the applicable short test 
standards. A vehicle shall fail the test mode if the values for either 
HC or CO, or both, in all simultaneous pairs of values are above the 
applicable standards.
    (3) Void test conditions. The test shall immediately end and any 
exhaust gas measurements shall be voided if the measured concentration 
of CO plus CO2 falls below six percent or the vehicle's engine 
stalls at any time during the test sequence.
    (4) Multiple exhaust pipes. Exhaust gas concentrations from vehicle 
engines equipped with multiple exhaust pipes shall be sampled 
simultaneously.
    (5) The test shall be immediately terminated upon reaching the 
overall maximum test time.
    (b) Test sequence. (1) The test sequence shall consist of a first-
chance test and a second-chance test as follows:
    (i) The first-chance test, as described under paragraph (II)(c) of 
this appendix, shall consist of an idle mode followed by a high-speed 
mode.
    (ii) The second-chance high-speed mode, as described under paragraph 
(II)(c) of this appendix, shall immediately follow the first-chance 
high-speed mode. It shall be performed only if the vehicle fails the 
first-chance test. The second-chance idle mode, as described under 
paragraph (II)(d) of this appendix, shall follow the second-chance high-
speed mode and be performed only if the vehicle fails the idle mode of 
the first-chance test.
    (2) The test sequence shall begin only after the following 
requirements are met:
    (i) The vehicle shall be tested in as-received condition with the 
transmission in neutral or park and all accessories turned

[[Page 825]]

off. The engine shall be at normal operating temperature (as indicated 
by a temperature gauge, temperature lamp, touch test on the radiator 
hose, or other visual observation for overheating).
    (ii) The tachometer shall be attached to the vehicle in accordance 
with the analyzer manufacturer's instructions.
    (iii) The sample probe shall be inserted into the vehicle's tailpipe 
to a minimum depth of 10 inches. If the vehicle's exhaust system 
prevents insertion to this depth, a tailpipe extension shall be used.
    (iv) The measured concentration of CO plus CO2 shall be greater 
than or equal to six percent.
    (c) First-chance test and second-chance high-speed mode. The test 
timer shall start (tt=0) when the conditions specified in paragraph 
(b)(2) of this section are met. The first-chance test and second-chance 
high-speed mode shall have an overall maximum test time of 425 seconds 
(tt=425). The first-chance test shall consist of an idle mode followed 
immediately by a high-speed mode. This is followed immediately by an 
additional second-chance high-speed mode, if necessary.
    (1) First-chance idle mode. (i) The mode timer shall start (mt=0) 
when the vehicle engine speed is between 350 and 1100 rpm. If engine 
speed exceeds 1100 rpm or falls below 350 rpm, the mode timer shall 
reset to zero and resume timing. The minimum idle mode length shall be 
determined as described in paragraph (II)(c)(1)(ii) of this appendix. 
The maximum idle mode length shall be 90 seconds elapsed time (mt=90).
    (ii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode terminated as follows:
    (A) The vehicle shall pass the idle mode and the mode shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.
    (B) The vehicle shall pass the idle mode and the mode shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior 
to that time, the criteria of paragraph (II)(c)(1)(ii)(A) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(II)(a)(2) of this appendix.
    (C) The vehicle shall pass the idle mode and the mode shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), the measured values are less 
than or equal to the applicable short test standards as described in 
paragraph (II)(a)(2) of this appendix.
    (D) The vehicle shall fail the idle mode and the mode shall be 
terminated if none of the provisions of paragraphs (II)(c)(1)(ii)(A), 
(B), and (C) of this appendix is satisfied by an elapsed time of 90 
seconds (mt=90). Alternatively, the vehicle may be failed if the 
provisions of paragraphs (II)(c)(2)(i) and (ii) of this appendix are not 
met within an elapsed time of 30 seconds.
    (E) Optional. The vehicle may fail the first-chance test and the 
second-chance test shall be omitted if no exhaust gas concentration less 
than 1800 ppm HC is found by an elapsed time of 30 seconds (mt=30).
    (2) First-chance and second-chance high-speed modes. This mode 
includes both the first-chance and second-chance high-speed modes, and 
follows immediately upon termination of the first-chance idle mode.
    (i) The mode timer shall reset (mt=0) when the vehicle engine speed 
is between 2200 and 2800 rpm. If engine speed falls below 2200 rpm or 
exceeds 2800 rpm for more than two seconds in one excursion, or more 
than six seconds over all excursions within 30 seconds of the final 
measured value used in the pass/fail determination, the measured value 
shall be invalidated and the mode continued. If any excursion lasts for 
more than ten seconds, the mode timer shall reset to zero (mt=0) and 
timing resumed. The minimum high-speed mode length shall be determined 
as described under paragraphs (II)(c)(2)(ii) and (iii) of this appendix. 
The maximum high-speed mode length shall be 180 seconds elapsed time 
(mt=180).
    (ii) Ford Motor Company and Honda vehicles. For 1981-1987 model year 
Ford Motor Company vehicles and 1984-1985 model year Honda Preludes, the 
pass/fail analysis shall begin after an elapsed time of 10 seconds 
(mt=10) using the following procedure. This procedure may also be used 
for 1988-1989 Ford Motor Company vehicles but should not be used for 
other vehicles.
    (A) A pass or fail determination, as described below, shall be used, 
for vehicles that passed the idle mode, to determine whether the high-
speed test should be terminated prior to or at the end of an elapsed 
time of 180 seconds (mt=180).
    (1) The vehicle shall pass the high-speed mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), the measured values are less than or equal to 100 ppm HC and 
0.5 percent CO.
    (2) The vehicle shall pass the high-speed mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior 
to that time, the criteria of paragraph (II)(c)(2)(ii)(A)(1) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(II)(a)(2) of this appendix.
    (3) The vehicle shall pass the high-speed mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 180 seconds (mt=180), the measured values are less 
than

[[Page 826]]

or equal to the applicable short test standards as described in 
paragraph (II)(a)(2) of this appendix.
    (4) Restart. If at an elapsed time of 90 seconds (mt=90) the 
measured values are greater than the applicable short test standards as 
described in paragraph (II)(a)(2) of this appendix, the vehicle's engine 
shall be shut off for not more than 10 seconds after returning to idle 
and then shall be restarted. The probe may be removed from the tailpipe 
or the sample pump turned off if necessary to reduce analyzer fouling 
during the restart procedure. The mode timer will stop upon engine shut 
off (mt=90) and resume upon engine restart. The pass/fail determination 
shall resume as follows after 100 seconds have elapsed (mt=100).
    (i) The vehicle shall pass the high-speed mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 100 
seconds (mt=100) and 180 seconds (mt=180), the measured values are less 
than or equal to the applicable short test standards described in 
paragraph (II)(a)(2) of this appendix.
    (ii) The vehicle shall fail the high-speed mode and the test shall 
be terminated if paragraph (II)(c)(2)(ii)(A)(4)(i) of this appendix is 
not satisfied by an elapsed time of 180 seconds (mt=180).
    (B) A pass or fail determination shall be made for vehicles that 
failed the idle mode and the high-speed mode terminated at the end of an 
elapsed time of 180 seconds (mt=180) as follows:
    (1) The vehicle shall pass the high-speed mode and the mode shall be 
terminated at an elapsed time of 180 seconds (mt=180) if any measured 
values of HC and CO exhaust gas concentrations during the high-speed 
mode are less than or equal to the applicable short test standards as 
described in paragraph (II)(a)(2) of this appendix.
    (2) Restart. If at an elapsed time of 90 seconds (mt=90) the 
measured values of HC and CO exhaust gas concentrations during the high-
speed mode are greater than the applicable short test standards as 
described in paragraph (II)(a)(2) of this appendix, the vehicle's engine 
shall be shut off for not more than 10 seconds after returning to idle 
and then shall be restarted. The probe may be removed from the tailpipe 
or the sample pump turned off if necessary to reduce analyzer fouling 
during the restart procedure. The mode timer will stop upon engine shut 
off (mt=90) and resume upon engine restart. The pass/fail determination 
shall resume as follows after 100 seconds have elapsed (mt=100).
    (i) The vehicle shall pass the high-speed mode and the mode shall be 
terminated at an elapsed time of 180 seconds (mt=180) if any measured 
values of HC and CO exhaust gas concentrations during the high-speed 
mode are less than or equal to the applicable short test standards as 
described in paragraph (II)(a)(2) of this appendix.
    (ii) The vehicle shall fail the high-speed mode and the test shall 
be terminated if paragraph (II)(c)(2)(ii)(B)(2)(i) of this appendix is 
not satisfied by an elapsed time of 180 seconds (mt=180).
    (iii) All other light-duty motor vehicles. The pass/fail analysis 
for vehicles not specified in paragraph (II)(c)(2)(ii) of this appendix 
shall begin after an elapsed time of 10 seconds (mt=10) using the 
following procedure.
    (A) A pass or fail determination, as described below, shall be used 
for vehicles that passed the idle mode, to determine whether the high-
speed mode should be terminated prior to or at the end of an elapsed 
time of 180 seconds (mt=180).
    (1) The vehicle shall pass the high-speed mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), any measured values are less than or equal to 100 ppm HC and 
0.5 percent CO.
    (2) The vehicle shall pass the high-speed mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior 
to that time, the criteria of paragraph (II)(c)(2)(iii)(A)(1) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(II)(a)(2) of this appendix.
    (3) The vehicle shall pass the high-speed mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 180 seconds (mt=180), the measured values are less 
than or equal to the applicable short test standards as described in 
paragraph (II)(a)(2) of this appendix.
    (4) The vehicle shall fail the high-speed mode and the test shall be 
terminated if none of the provisions of paragraphs 
(II)(c)(2)(iii)(A)(1), (2), and (3) of this appendix is satisfied by an 
elapsed time of 180 seconds (mt=180).
    (B) A pass or fail determination shall be made for vehicles that 
failed the idle mode and the high-speed mode terminated at the end of an 
elapsed time of 180 seconds (mt=180) as follows:
    (1) The vehicle shall pass the high-speed mode and the mode shall be 
terminated at an elapsed time of 180 seconds (mt=180) if any measured 
values are less than or equal to the applicable short test standards as 
described in paragraph (II)(a)(2) of this appendix.
    (2) The vehicle shall fail the high-speed mode and the test shall be 
terminated if paragraph (II)(c)(2)(iii)(B)(1) of this appendix is not 
satisfied by an elapsed time of 180 seconds (mt=180).
    (d) Second-chance idle mode. If the vehicle fails the first-chance 
idle mode and passes the high-speed mode, the test timer shall reset to 
zero (tt=0) and a second-chance idle

[[Page 827]]

mode shall commence. The second-chance idle mode shall have an overall 
maximum test time of 145 seconds (tt=145). The test shall consist of an 
idle mode only.
    (1) The engines of 1981-1987 Ford Motor Company vehicles and 1984-
1985 Honda Preludes shall be shut off for not more than 10 seconds and 
restarted. The probe may be removed from the tailpipe or the sample pump 
turned off if necessary to reduce analyzer fouling during the restart 
procedure. This procedure may also be used for 1988-1989 Ford Motor 
Company vehicles but should not be used for other vehicles.
    (2) The mode timer shall start (mt=0) when the vehicle engine speed 
is between 350 and 1100 rpm. If the engine speed exceeds 1100 rpm or 
falls below 350 rpm the mode timer shall reset to zero and resume 
timing. The minimum second-chance idle mode length shall be determined 
as described in paragraph (II)(d)(3) of this appendix. The maximum 
second-chance idle mode length shall be 90 seconds elapsed time (mt=90).
    (3) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the second-chance idle mode shall be terminated as follows:
    (i) The vehicle shall pass the second-chance idle mode and the test 
shall be immediately terminated if, prior to an elapsed time of 30 
seconds (mt=30), any measured values are less than or equal to 100 ppm 
HC and 0.5 percent CO.
    (ii) The vehicle shall pass the second-chance idle mode and the test 
shall be terminated at the end of an elapsed time of 30 seconds (mt=30) 
if, prior to that time, the criteria of paragraph (II)(d)(3)(i) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(II)(a)(2) of this appendix.
    (iii) The vehicle shall pass the second-chance idle mode and the 
test shall be immediately terminated if, at any point between an elapsed 
time of 30 seconds (mt=30) and 90 seconds (mt=90), the measured values 
are less than or equal to the applicable short test standards as 
described in paragraph (II)(a)(2) of this appendix.
    (iv) The vehicle shall fail the second-chance idle mode and the test 
shall be terminated if none of the provisions of paragraph 
(II)(d)(3)(i), (ii), and (iii) of this appendix is satisfied by an 
elapsed time of 90 seconds (mt=90).

                            (III) Loaded Test

    (a) General requirements--(1) Exhaust gas sampling algorithm. The 
analysis of exhaust gas concentrations shall begin 10 seconds after the 
applicable test mode begins. Exhaust gas concentrations shall be 
analyzed at a minimum rate of two times per second. The measured value 
for pass/fail determinations shall be a simple running average of the 
measurements taken over five seconds.
    (2) Pass/fail determination. A pass or fail determination shall be 
made for each applicable test mode based on a comparison of the short 
test standards contained in Appendix C to this subpart and the measured 
value for HC and CO as described in paragraph (III)(a)(1) of this 
appendix. A vehicle shall pass the test mode if any pair of simultaneous 
values for HC and CO are below or equal to the applicable short test 
standards. A vehicle shall fail the test mode if the values for either 
HC or CO, or both, in all simultaneous pairs of values are above the 
applicable standards.
    (3) Void test conditions. The test shall immediately end and any 
exhaust gas measurements shall be voided if the measured concentration 
of CO plus CO2 falls below six percent or the vehicle's engine 
stalls at any time during the test sequence.
    (4) Multiple exhaust pipes. Exhaust gas concentrations from vehicle 
engines equipped with multiple exhaust pipes shall be sampled 
simultaneously.
    (5) The test shall be immediately terminated upon reaching the 
overall maximum test time.
    (b) Test sequence. (1) The test sequence shall consist of a loaded 
mode using a chassis dynamometer followed immediately by an idle mode as 
described under paragraphs (III)(c)(1) and (2) of this appendix.
    (2) The test sequence shall begin only after the following 
requirements are met:
    (i) The dynamometer shall be warmed up, in stabilized operating 
condition, adjusted, and calibrated in accordance with the procedures of 
appendix A to this subpart. Prior to each test, variable-curve 
dynamometers shall be checked for proper setting of the road-load 
indicator or road-load controller.
    (ii) The vehicle shall be tested in as-received condition with all 
accessories turned off. The engine shall be at normal operating 
temperature (as indicated by a temperature gauge, temperature lamp, 
touch test on the radiator hose, or other visual observation for 
overheating).
    (iii) The vehicle shall be operated during each mode of the test 
with the gear selector in the following position:
    (A) In drive for automatic transmissions and in second (or third if 
more appropriate) for manual transmissions for the loaded mode;
    (B) In park or neutral for the idle mode.
    (iv) The tachometer shall be attached to the vehicle in accordance 
with the analyzer manufacturer's instructions.
    (v) The sample probe shall be inserted into the vehicle's tailpipe 
to a minimum depth of 10 inches. If the vehicle's exhaust system 
prevents insertion to this depth, a tailpipe extension shall be used.

[[Page 828]]

    (vi) The measured concentration of CO plus CO2 shall be greater 
than or equal to six percent.
    (c) Overall test procedure. The test timer shall start (tt=0) when 
the conditions specified in paragraph (III)(b)(2) of this appendix are 
met and the mode timer initiates as specified in paragraph (III)(c)(1) 
of this appendix. The test sequence shall have an overall maximum test 
time of 240 seconds (tt=240). The test shall be immediately terminated 
upon reaching the overall maximum test time.
    (1) Loaded mode--(i) Ford Motor Company and Honda vehicles. 
(Optional) The engines of 1981-1987 Ford Motor Company vehicles and 
1984-1985 Honda Preludes shall be shut off for not more than 10 seconds 
and restarted. This procedure may also be used for 1988-1989 Ford Motor 
Company vehicles but should not be used for other vehicles. The probe 
may be removed from the tailpipe or the sample pump turned off if 
necessary to reduce analyzer fouling during the restart procedure.
    (ii) The mode timer shall start (mt=0) when the dynamometer speed is 
within the limits specified for the vehicle engine size according to the 
following schedule. If the dynamometer speed falls outside the limits 
for more than five seconds in one excursion, or 15 seconds over all 
excursions, the mode timer shall reset to zero and resume timing. The 
minimum mode length shall be determined as described in paragraph 
(III)(c)(1)(iii)(A) of this appendix. The maximum mode length shall be 
90 seconds elapsed time (mt=90).

                        Dynamometer Test Schedule                       
------------------------------------------------------------------------
                                                               Normal   
                                                Roll speed     loading  
       Gasoline engine size (cylinders)            (mph)       (brake   
                                                             horsepower)
------------------------------------------------------------------------
4 or less.....................................       22-25  2.8-4.1     
5-6...........................................       29-32  6.8-8.4     
7 or more.....................................       32-35  8.4-10.8    
------------------------------------------------------------------------

    (iii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (A) The vehicle shall pass the loaded mode and the mode shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), measured values are less than or 
equal to the applicable short test standards described in paragraph 
(a)(2) of this section.
    (B) The vehicle shall fail the loaded mode and the mode shall be 
terminated if paragraph (III)(c)(1)(iii)(A) of this appendix is not 
satisfied by an elapsed time of 90 seconds (mt=90).
    (C) Optional. The vehicle may fail the loaded mode and any 
subsequent idle mode shall be omitted if no exhaust gas concentration 
less than 1800 ppm HC is found by an elapsed time of 30 seconds (mt=30).
    (2) Idle mode--(i) Ford Motor Company and Honda vehicles. (Optional) 
The engines of 1981-1987 Ford Motor Company vehicles and 1984-1985 Honda 
Preludes shall be shut off for not more than 10 seconds and restarted. 
This procedure may also be used for 1988-1989 Ford Motor Company 
vehicles but should not be used for other vehicles. The probe may be 
removed from the tailpipe or the sample pump turned off if necessary to 
reduce analyzer fouling during the restart procedure.
    (ii) The mode timer shall start (mt=0) when the dynamometer speed is 
zero and the vehicle engine speed is between 350 and 1100 rpm. If engine 
speed exceeds 1100 rpm or falls below 350 rpm, the mode timer shall 
reset to zero and resume timing. The minimum idle mode length shall be 
determined as described in paragraph (II)(c)(2)(ii) of this appendix. 
The maximum idle mode length shall be 90 seconds elapsed time (mt=90).
    (iii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (A) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.
    (B) The vehicle shall pass the idle mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior 
to that time, the criteria of paragraph (III)(c)(2)(iii)(A) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(III)(a)(2) of this appendix.
    (C) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), measured values are less than or 
equal to the applicable short test standards described in paragraph 
(III)(a)(2) of this appendix.
    (D) The vehicle shall fail the idle mode and the test shall be 
terminated if none of the provisions of paragraphs (III)(c)(2)(iii)(A), 
(c)(2)(iii)(B), and (c)(2)(iii)(C) of this appendix is satisfied by an 
elapsed time of 90 seconds (mt=90).
    (IV) Preconditioned IDLE TEST
    (a) General requirements--(1) Exhaust gas sampling algorithm. The 
analysis of exhaust gas concentrations shall begin 10 seconds after the 
applicable test mode begins. Exhaust gas concentrations shall be 
analyzed at a minimum rate of two times per second. The measured value 
for pass/fail determinations shall be a simple running average of the 
measurements taken over five seconds.

[[Page 829]]

    (2) Pass/fail determination. A pass or fail determination shall be 
made for each applicable test mode based on a comparison of the short 
test standards contained in appendix C to this subpart, and the measured 
value for HC and CO as described in paragraph (IV)(a)(1) of this 
appendix. A vehicle shall pass the test mode if any pair of simultaneous 
values for HC and CO are below or equal to the applicable short test 
standards. A vehicle shall fail the test mode if the values for either 
HC or CO, or both, in all simultaneous pairs of values are above the 
applicable standards.
    (3) Void test conditions. The test shall immediately end and any 
exhaust gas measurements shall be voided if the measured concentration 
of CO plus CO2 falls below six percent or the vehicle's engine 
stalls at any time during the test sequence.
    (4) Multiple exhaust pipes. Exhaust gas concentrations from vehicle 
engines equipped with multiple exhaust pipes shall be sampled 
simultaneously.
    (5) The test shall be immediately terminated upon reaching the 
overall maximum test time.
    (b) Test sequence. (1) The test sequence shall consist of a first-
chance test and a second-chance test as follows:
    (i) The first-chance test, as described under paragraph (IV)(c) of 
this appendix, shall consist of a preconditioning mode followed by an 
idle mode.
    (ii) The second-chance test, as described under paragraph (IV)(d) of 
this appendix, shall be performed only if the vehicle fails the first-
chance test.
    (2) The test sequence shall begin only after the following 
requirements are met:
    (i) The vehicle shall be tested in as-received condition with the 
transmission in neutral or park and all accessories turned off. The 
engine shall be at normal operating temperature (as indicated by a 
temperature gauge, temperature lamp, touch test on the radiator hose, or 
other visual observation for overheating).
    (ii) The tachometer shall be attached to the vehicle in accordance 
with the analyzer manufacturer's instructions.
    (iii) The sample probe shall be inserted into the vehicle's tailpipe 
to a minimum depth of 10 inches. If the vehicle's exhaust system 
prevents insertion to this depth, a tailpipe extension shall be used.
    (iv) The measured concentration of CO plus CO2 shall be greater than 
or equal to six percent.
    (c) First-chance test. The test timer shall start (tt=0) when the 
conditions specified in paragraph (IV)(b)(2) of this appendix are met. 
The test shall have an overall maximum test time of 200 seconds 
(tt=200). The first-chance test shall consist of a preconditioning mode 
followed immediately by an idle mode.
    (1) Preconditioning mode. The mode timer shall start (mt=0) when the 
engine speed is between 2200 and 2800 rpm. The mode shall continue for 
an elapsed time of 30 seconds (mt=30). If engine speed falls below 2200 
rpm or exceeds 2800 rpm for more than five seconds in any one excursion, 
or 15 seconds over all excursions, the mode timer shall reset to zero 
and resume timing.
    (2) Idle mode. (i) The mode timer shall start (mt=0) when the 
vehicle engine speed is between 350 and 1100 rpm. If engine speed 
exceeds 1100 rpm or falls below 350 rpm, the mode timer shall reset to 
zero and resume timing. The minimum idle mode length shall be determined 
as described in paragraph (IV)(c)(2)(ii) of this appendix. The maximum 
idle mode length shall be 90 seconds elapsed time (mt=90).
    (ii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (A) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.
    (B) The vehicle shall pass the idle mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior 
to that time, the criteria of paragraph (IV)(c)(2)(ii)(A) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(IV)(a)(2) of this appendix.
    (C) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(IV)(a)(2) of this section.
    (D) The vehicle shall fail the idle mode and the test shall be 
terminated if none of the provisions of paragraphs (IV)(c)(2)(ii)(A), 
(B), and (C) of this appendix is satisfied by an elapsed time of 90 
seconds (mt=90). Alternatively, the vehicle may be failed if the 
provisions of paragraphs (IV)(c)(2) (i) and (ii) of this appendix are 
not met within an elapsed time of 30 seconds.
    (E) Optional. The vehicle may fail the first-chance test and the 
second-chance test shall be omitted if no exhaust gas concentration less 
than 1800 ppm HC is found at an elapsed time of 30 seconds (mt=30).
    (d) Second-chance test. If the vehicle fails the first-chance test, 
the test timer shall reset to zero and a second-chance test shall be 
performed. The second-chance test shall have an overall maximum test 
time of 425

[[Page 830]]

seconds. The test shall consist of a preconditioning mode followed 
immediately by an idle mode.
    (1) Preconditioning mode. The mode timer shall start (mt=0) when 
engine speed is between 2200 and 2800 rpm. The mode shall continue for 
an elapsed time of 180 seconds (mt=180). If the engine speed falls below 
2200 rpm or exceeds 2800 rpm for more than five seconds in any one 
excursion, or 15 seconds over all excursions, the mode timer shall reset 
to zero and resume timing.
    (2) Idle mode--(i) Ford Motor Company and Honda vehicles. The 
engines of 1981-1987 Ford Motor Company vehicles and 1984-1985 Honda 
Preludes shall be shut off for not more than 10 seconds and then shall 
be restarted. The probe may be removed from the tailpipe or the sample 
pump turned off if necessary to reduce analyzer fouling during the 
restart procedure. This procedure may also be used for 1988-1989 Ford 
Motor Company vehicles but should not be used for other vehicles.
    (ii) The mode timer shall start (mt=0) when the vehicle engine speed 
is between 350 and 1100 rpm. If the engine speed exceeds 1100 rpm or 
falls below 350 rpm, the mode timer shall reset to zero and resume 
timing. The minimum idle mode length shall be determined as described in 
paragraph (IV)(d)(2)(iii) of this appendix. The maximum idle mode length 
shall be 90 seconds elapsed time (mt=90).
    (iii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (A) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.
    (B) The vehicle shall pass the idle mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior 
to that time, the criteria of paragraph (IV)(d)(2)(iii)(A) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(IV)(a)(2) of this appendix.
    (C) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), measured values are less than or 
equal to the applicable short test standards described in paragraph 
(IV)(a)(2) of this appendix.
    (D) The vehicle shall fail the idle mode and the test shall be 
terminated if none of the provisions of paragraphs (IV)(d)(2)(iii) (A), 
(B), and (C) of this appendix is satisfied by an elapsed time of 90 
seconds (mt=90).
    (V) Idle Test With Loaded Preconditioning
    (a) General requirements--(1) Exhaust gas sampling algorithm. The 
analysis of exhaust gas concentrations shall begin 10 seconds after the 
applicable test mode begins. Exhaust gas concentrations shall be 
analyzed at a minimum rate of two times per second. The measured value 
for pass/fail determinations shall be a simple running average of the 
measurements taken over five seconds.
    (2) Pass/fail determination. A pass or fail determination shall be 
made for each applicable test mode based on a comparison of the short 
test standards contained in appendix C to this subpart, and the measured 
value for HC and CO as described in paragraph (V)(a)(1) of this 
appendix. A vehicle shall pass the test mode if any pair of simultaneous 
values for HC and CO are below or equal to the applicable short test 
standards. A vehicle shall fail the test mode if the values for either 
HC or CO, or both, in all simultaneous pairs of values are above the 
applicable standards.
    (3) Void test conditions. The test shall immediately end and any 
exhaust gas measurements shall be voided if the measured concentration 
of CO plus CO2 falls below six percent or the vehicle's engine 
stalls at any time during the test sequence.
    (4) Multiple exhaust pipes. Exhaust gas concentrations from vehicle 
engines equipped with multiple exhaust pipes shall be sampled 
simultaneously.
    (5) The test shall be immediately terminated upon reaching the 
overall maximum test time.
    (b) Test sequence. (1) The test sequence shall consist of a first-
chance test and a second-chance test as follows:
    (i) The first-chance test, as described under paragraph (V)(c) of 
this appendix, shall consist of an idle mode.
    (ii) The second-chance test as described under paragraph (V)(d) of 
this appendix shall be performed only if the vehicle fails the first-
chance test.
    (2) The test sequence shall begin only after the following 
requirements are met:
    (i) The dynamometer shall be warmed up, in stabilized operating 
condition, adjusted, and calibrated in accordance with the procedures of 
appendix A to this subpart. Prior to each test, variable-curve 
dynamometers shall be checked for proper setting of the road-load 
indicator or road-load controller.
    (ii) The vehicle shall be tested in as-received condition with all 
accessories turned off. The engine shall be at normal operating 
temperature (as indicated by a temperature gauge, temperature lamp, 
touch test on the radiator hose, or other visual observation for 
overheating).
    (iii) The vehicle shall be operated during each mode of the test 
with the gear selector in the following position:
    (A) In drive for automatic transmissions and in second (or third if 
more appropriate)

[[Page 831]]

for manual transmissions for the loaded preconditioning mode;
    (B) In park or neutral for the idle mode.
    (iv) The tachometer shall be attached to the vehicle in accordance 
with the analyzer manufacturer's instructions.
    (v) The sample probe shall be inserted into the vehicle's tailpipe 
to a minimum depth of 10 inches. If the vehicle's exhaust system 
prevents insertion to this depth, a tailpipe extension shall be used.
    (vi) The measured concentration of CO plus CO2 shall be greater 
than or equal to six percent.
    (c) First-chance test. The test timer shall start (tt=0) when the 
conditions specified in paragraph (V)(b)(2) of this appendix are met. 
The test shall have an overall maximum test time of 155 seconds 
(tt=155). The first-chance test shall consist of an idle mode only.
    (1) The mode timer shall start (mt=0) when the vehicle engine speed 
is between 350 and 1100 rpm. If the engine speed exceeds 1100 rpm or 
falls below 350 rpm, the mode timer shall reset to zero and resume 
timing. The minimum mode length shall be determined as described in 
paragraph (V)(c)(2) of this appendix. The maximum mode length shall be 
90 seconds elapsed time (mt=90).
    (2) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (i) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.
    (ii) The vehicle shall pass the idle mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior 
to that time, the criteria of paragraph (V)(c)(2)(i) of this appendix 
are not satisfied, and the measured values are less than or equal to the 
applicable short test standards as described in paragraph (V)(a)(2) of 
this appendix.
    (iii) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), the measured values are less 
than or equal to the applicable short test standards as described in 
paragraph (V)(a)(2) of this appendix.
    (iv) The vehicle shall fail the idle mode and the test shall be 
terminated if none of the provisions of paragraphs (V)(c)(2)(i), (ii), 
and (iii) of this appendix is satisfied by an elapsed time of 90 seconds 
(mt=90). Alternatively, the vehicle may be failed if the provisions of 
paragraphs (V)(c)(2) (i) and (ii) of this appendix are not met within an 
elapsed time of 30 seconds.
    (v) Optional. The vehicle may fail the first-chance test and the 
second-chance test shall be omitted if no exhaust gas concentration less 
than 1800 ppm HC is found at an elapsed time of 30 seconds (mt=30).
    (d) Second-chance test. If the vehicle fails the first-chance test, 
the test timer shall reset to zero (tt=0) and a second-chance test shall 
be performed. The second-chance test shall have an overall maximum test 
time of 200 seconds (tt=200). The test shall consist of a 
preconditioning mode using a chassis dynamometer, followed immediately 
by an idle mode.
    (1) Preconditioning mode. The mode timer shall start (mt=0) when the 
dynamometer speed is within the limits specified for the vehicle engine 
size in accordance with the following schedule. The mode shall continue 
for a minimum elapsed time of 30 seconds (mt=30). If the dynamometer 
speed falls outside the limits for more than five seconds in one 
excursion, or 15 seconds over all excursions, the mode timer shall reset 
to zero and resume timing.

------------------------------------------------------------------------
                                                      Dynamometer test  
                                                          schedule      
                                                   ---------------------
         Gasoline engine size (cylinders)                       Normal  
                                                      Roll     loading  
                                                     speed      (brake  
                                                     (mph)   horsepower)
------------------------------------------------------------------------
4 or less.........................................    22-25  2.8-4.1    
5-6...............................................    29-32  6.8-8.4    
7 or more.........................................    32-35  8.4-10.8   
------------------------------------------------------------------------

    (2) Idle mode. (i) Ford Motor Company and Honda vehicles. (Optional) 
The engines of 1981-1987 Ford Motor Company vehicles and 1984-1985 Honda 
Preludes shall be shut off for not more than 10 seconds and restarted. 
This procedure may also be used for 1988-1989 Ford Motor Company 
vehicles but should not be used for other vehicles. The probe may be 
removed from the tailpipe or the sample pump turned off if necessary to 
reduce analyzer fouling during the restart procedure.
    (ii) The mode timer shall start (mt=0) when the dynamometer speed is 
zero and the vehicle engine speed is between 350 and 1100 rpm. If the 
engine speed exceeds 1100 rpm or falls below 350 rpm, the mode timer 
shall reset to zero and resume timing. The minimum idle mode length 
shall be determined as described in paragraph (V)(d)(2)(ii) of this 
appendix. The maximum idle mode length shall be 90 seconds elapsed time 
(mt=90).
    (iii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (A) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.

[[Page 832]]

    (B) The vehicle shall pass the idle mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior 
to that time, the criteria of paragraph (V)(d)(2)(ii)(A) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(V)(a)(2) of this appendix.
    (C) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), the measured values are less 
than or equal to the applicable short test standards as described in 
paragraph (V)(a)(2) of this appendix.
    (D) The vehicle shall fail the idle mode and the test shall be 
terminated if none of the provisions of paragraphs (V)(d)(2)(ii)(A), 
(B), and (C) of this appendix is satisfied by an elapsed time of 90 
seconds (mt=90).

                 (VI) Preconditioned Two Speed Idle Test

    (a) General requirements--(1) Exhaust gas sampling algorithm. The 
analysis of exhaust gas concentrations shall begin 10 seconds after the 
applicable test mode begins. Exhaust gas concentrations shall be 
analyzed at a minimum rate of two times per second. The measured value 
for pass/fail determinations shall be a simple running average of the 
measurements taken over five seconds.
    (2) Pass/fail determination. A pass or fail determination shall be 
made for each applicable test mode based on a comparison of the short 
test standards contained in appendix C to this subpart, and the measured 
value for HC and CO as described in paragraph (VI)(a)(1) of this 
appendix. A vehicle shall pass the test mode if any pair of simultaneous 
values for HC and CO are below or equal to the applicable short test 
standards. A vehicle shall fail the test mode if the values for either 
HC or CO, or both, in all simultaneous pairs of values are above the 
applicable standards.
    (3) Void test conditions. The test shall immediately end and any 
exhaust gas measurements shall be voided if the measured concentration 
of CO plus CO2 falls below six percent or the vehicle's engine 
stalls at any time during the test sequence.
    (4) Multiple exhaust pipes. Exhaust gas concentrations from vehicle 
engines equipped with multiple exhaust pipes shall be sampled 
simultaneously.
    (5) The test shall be immediately terminated upon reaching the 
overall maximum test time.
    (b) Test sequence.--(1) The test sequence shall consist of a first-
chance test and a second-chance test as follows:
    (i) The first-chance test, as described under paragraph (VI)(c) of 
this appendix, shall consist of a first-chance high-speed mode followed 
immediately by a first-chance idle mode.
    (ii) The second-chance test as described under paragraph (VI)(d) of 
this appendix shall be performed only if the vehicle fails the first-
chance test.
    (2) The test sequence shall begin only after the following 
requirements are met:
    (i) The vehicle shall be tested in as-received condition with the 
transmission in neutral or park and all accessories turned off. The 
engine shall be at normal operating temperature (as indicated by a 
temperature gauge, temperature lamp, touch test on the radiator hose, or 
other visual observation for overheating).
    (ii) The tachometer shall be attached to the vehicle in accordance 
with the analyzer manufacturer's instructions.
    (iii) The sample probe shall be inserted into the vehicle's tailpipe 
to a minimum depth of 10 inches. If the vehicle's exhaust system 
prevents insertion to this depth, a tailpipe extension shall be used.
    (iv) The measured concentration of CO plus CO2 shall be greater 
than or equal to six percent.
    (c) First-chance test. The test timer shall start (tt=0) when the 
conditions specified in paragraph (VI)(b)(2) of this appendix are met. 
The test shall have an overall maximum test time of 290 seconds 
(tt=290). The first-chance test shall consist of a high-speed mode 
followed immediately by an idle mode.
    (1) First-chance high-speed mode. (i) The mode timer shall reset 
(mt=0) when the vehicle engine speed is between 2200 and 2800 rpm. If 
the engine speed falls below 2200 rpm or exceeds 2800 rpm for more than 
two seconds in one excursion, or more than six seconds over all 
excursions within 30 seconds of the final measured value used in the 
pass/fail determination, the measured value shall be invalidated and the 
mode continued. If any excursion lasts for more than ten seconds, the 
mode timer shall reset to zero (mt=0) and timing resumed. The high-speed 
mode length shall be 90 seconds elapsed time (mt=90).
    (ii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (A) The vehicle shall pass the high-speed mode and the mode shall be 
terminated at an elapsed time of 90 seconds (mt=90) if any measured 
values are less than or equal to the applicable short test standards as 
described in paragraph (VI)(a)(2) of this appendix.
    (B) The vehicle shall fail the high-speed mode and the mode shall be 
terminated if the requirements of paragraph (VI)(c)(1)(ii)(A) of this 
appendix are not satisfied by an elapsed time of 90 seconds (mt=90).
    (C) Optional. The vehicle shall fail the first-chance test and any 
subsequent test

[[Page 833]]

shall be omitted if no exhaust gas concentration lower than 1800 ppm HC 
is found at an elapsed time of 30 seconds (mt=30).
    (2) First-chance idle mode. (i) The mode timer shall start (mt=0) 
when the vehicle engine speed is between 350 and 1100 rpm. If the engine 
speed exceeds 1100 rpm or falls below 350 rpm, the mode timer shall 
reset to zero and resume timing. The minimum first-chance idle mode 
length shall be determined as described in paragraph (VI)(c)(2)(ii) of 
this appendix. The maximum first-chance idle mode length shall be 90 
seconds elapsed time (mt=90).
    (ii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (A) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.
    (B) The vehicle shall pass the idle mode and the test shall be 
terminated at the end of an elapsed time of 30 seconds (mt=30) if, prior 
to that time, the criteria of paragraph (VI)(c)(2)(ii)(A) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(VI)(a)(2) of this appendix.
    (C) The vehicle shall pass the idle mode and the test shall be 
immediately terminated if, at any point between an elapsed time of 30 
seconds (mt=30) and 90 seconds (mt=90), the measured values are less 
than or equal to the applicable short test standards as described in 
paragraph (VI)(a)(2) of this appendix.
    (D) The vehicle shall fail the idle mode and the test shall be 
terminated if none of the provisions of paragraphs (VI)(c)(2)(ii) (A), 
(B), and (C) of this appendix is satisfied by an elapsed time of 90 
seconds (mt=90). Alternatively, the vehicle may be failed if the 
provisions of paragraphs (VI)(c)(2)(i) and (ii) of this appendix are not 
met within the elapsed time of 30 seconds.
    (d) Second-chance test. (1) If the vehicle fails either mode of the 
first-chance test, the test timer shall reset to zero (tt=0) and a 
second-chance test shall commence. The second-chance test shall be 
performed based on the first-chance test failure mode or modes as 
follows:
    (A) If the vehicle failed only the first-chance high-speed mode, the 
second-chance test shall consist of a second-chance high-speed mode as 
described in paragraph (VI)(d)(2) of this appendix. The overall maximum 
test time shall be 280 seconds (tt=280).
    (B) If the vehicle failed only the first-chance idle mode, the 
second-chance test shall consist of a second-chance pre-conditioning 
mode followed immediately by a second-chance idle mode as described in 
paragraphs (VI)(d) (3) and (4) of this appendix. The overall maximum 
test time shall be 425 seconds (tt=425).
    (C) If both the first-chance high-speed mode and first-chance idle 
mode were failed, the second-chance test shall consist of the second-
chance high-speed mode followed immediately by the second-chance idle 
mode as described in paragraphs (VI)(d) (2) and (4) of this appendix. 
However, if during this second-chance procedure the vehicle fails the 
second-chance high-speed mode, then the second-chance idle mode may be 
eliminated. The overall maximum test time shall be 425 seconds (tt=425).
    (2) Second-chance high-speed mode--(i) Ford Motor Company and Honda 
vehicles. The engines of 1981-1987 Ford Motor Company vehicles and 1984-
1985 Honda Preludes shall be shut off for not more than 10 seconds and 
then shall be restarted. The probe may be removed from the tailpipe or 
the sample pump turned off if necessary to reduce analyzer fouling 
during the restart procedure. This procedure may also be used for 1988-
1989 Ford Motor Company vehicles but should not be used for other 
vehicles.
    (ii) The mode timer shall reset (mt=0) when the vehicle engine speed 
is between 2200 and 2800 rpm. If the engine speed falls below 2200 rpm 
or exceeds 2800 rpm for more than two seconds in one excursion, or more 
than six seconds over all excursions within 30 seconds of the final 
measured value used in the pass/fail determination, the measured value 
shall be invalidated and the mode continued. The minimum second-chance 
high-speed mode length shall be determined as described in paragraphs 
(VI)(d)(2) (iii) and (iv) of this appendix. If any excursion lasts for 
more than ten seconds, the mode timer shall reset to zero (mt=0) and 
timing resumed. The maximum second-chance high-speed mode length shall 
be 180 seconds elapsed time (mt=180).
    (iii) In the case where the second-chance high-speed mode is not 
followed by the second-chance idle mode, the pass/fail analysis shall 
begin after an elapsed time of 10 seconds (mt=10). A pass or fail 
determination shall be made for the vehicle and the mode shall be 
terminated as follows:
    (A) The vehicle shall pass the high-speed mode and the test shall be 
immediately terminated if, prior to an elapsed time of 30 seconds 
(mt=30), measured values are less than or equal to 100 ppm HC and 0.5 
percent CO.
    (B) The vehicle shall pass the high-speed mode and the test shall be 
terminated if at the end of an elapsed time of 30 seconds (mt=30) if, 
prior to that time, the criteria of paragraph (VI)(d)(2)(iii)(A) of this 
appendix are not satisfied, and the measured values are less than or 
equal to the applicable short test standards as described in paragraph 
(VI)(a)(2) of this appendix.

[[Page 834]]

    (C) The vehicle shall pass the high-speed mode and the test shall be 
immediately terminated if, at any point between an elapsed time for 30 
seconds (mt=30) and 180 seconds (mt=180), the measured values are less 
than or equal to the applicable short test standards as described in 
paragraph (VI)(a)(2) of this appendix.
    (D) The vehicle shall fail the high-speed mode and the test shall be 
terminated if none of the provisions of paragraphs (VI)(d)(2)(iii) (A), 
(B), and (C) of this appendix is satisfied by an elapsed time of 180 
seconds (mt=180).
    (iv) In the case where the second-chance high-speed mode is followed 
by the second-chance idle mode, the pass/fail analysis shall begin after 
an elapsed time of 10 seconds (mt=10). A pass or fail determination 
shall be made for the vehicle and the mode shall be terminated as 
follows:
    (A) The vehicle shall pass the high-speed mode and the mode shall be 
terminated at the end of an elapsed time of 180 seconds (mt=180) if any 
measured values are less than or equal to the applicable short test 
standards as described in paragraph (VI)(a)(2) of this appendix.
    (B) The vehicle shall fail the high-speed mode and the mode shall be 
terminated if paragraph (VI)(d)(2)(iv)(A) of this appendix is not 
satisfied by an elapsed time of 180 seconds (mt=180).
    (3) Second-chance preconditioning mode. The mode timer shall start 
(mt=0) when engine speed is between 2200 and 2800 rpm. The mode shall 
continue for an elapsed time of 180 seconds (mt=180). If the engine 
speed falls below 2200 rpm or exceeds 2800 rpm for more than five 
seconds in any one excursion, or 15 seconds over all excursions, the 
mode timer shall reset to zero and resume timing.
    (4) Second-chance idle mode--(i) Ford Motor Company and Honda 
vehicles. The engines of 1981-1987 Ford Motor Company vehicles and 1984-
1985 Honda Preludes shall be shut off for not more than 10 seconds and 
then shall be restarted. The probe may be removed from the tailpipe or 
the sample pump turned off if necessary to reduce analyzer fouling 
during the restart procedure. This procedure may also be used for 1988-
1989 Ford Motor Company vehicles but should not be used for other 
vehicles.
    (ii) The mode timer shall start (mt=0) when the vehicle engine speed 
is between 350 and 1100 rpm. If the engine exceeds 1100 rpm or falls 
below 350 rpm the mode timer shall reset to zero and resume timing. The 
minimum second-chance idle mode length shall be determined as described 
in paragraph (VI)(d)(4)(iii) of this appendix. The maximum second-chance 
idle mode length shall be 90 seconds elapsed time (mt=90).
    (iii) The pass/fail analysis shall begin after an elapsed time of 10 
seconds (mt=10). A pass or fail determination shall be made for the 
vehicle and the mode shall be terminated as follows:
    (A) The vehicle shall pass the second-chance idle mode and the test 
shall be immediately terminated if, prior to an elapsed time of 30 
seconds (mt=30), measured values are less than or equal to 100 ppm HC 
and 0.5 percent CO.
    (B) The vehicle shall pass the second-chance idle mode and the test 
shall be terminated at the end of an elapsed time of 30 seconds (mt=30) 
if, prior to that time, the criteria of paragraph (VI)(d)(4)(iii)(A) of 
this appendix are not satisfied, and the measured values are less than 
or equal to the applicable short test standards as described in 
paragraph (VI)(a)(2) of this appendix.
    (C) The vehicle shall pass the second-chance idle mode and the test 
shall be immediately terminated if, at any point between an elapsed time 
of 30 seconds (mt=30) and 90 seconds (mt=90), measured values are less 
than or equal to the applicable short test standards described in 
paragraph (VI)(a)(2) of this appendix.
    (D) The vehicle shall fail the second-chance idle mode and the test 
shall be terminated if none of the provisions of paragraphs 
(VI)(d)(4)(iii) (A), (B), and (C) of this appendix is satisfied by an 
elapsed time of 90 seconds (mt=90).

       Appendix C to Subpart S--Steady-State Short Test Standards

   (I) Short Test Standards for 1981 and Later Model Year Light-Duty 
                                Vehicles

    For 1981 and later model year light-duty vehicles for which any of 
the test procedures described in appendix B to this subpart are utilized 
to establish Emissions Performance Warranty eligibility (i.e., 1981 and 
later model year light-duty vehicles at low altitude and 1982 and later 
model year vehicles at high altitude to which high altitude 
certification standards of 1.5 gpm HC and 15 gpm CO or less apply), 
short test emissions for all tests and test modes shall not exceed:
    (a) Hydrocarbons: 220 ppm as hexane.
    (b) Carbon monoxide: 1.2%.

   (II) Short Test Standards for 1981 and Later Model Year Light-Duty 
                                 Trucks

    For 1981 and later model year light-duty trucks for which any of the 
test procedures described in appendix B to this subpart are utilized to 
establish Emissions Performance Warranty eligibility (i.e., 1981 and 
later model year light-duty trucks at low altitude and 1982 and later 
model year trucks at high altitude to which high altitude certification 
standards of 2.0 gpm HC and 26 gpm CO or less apply), short test 
emissions for all tests and test modes shall not exceed:
    (a) Hydrocarbons: 220 ppm as hexane.
    (b) Carbon monoxide: 1.2%.

[[Page 835]]

       Appendix D to Subpart S--Steady-State Short Test Equipment

              (I) Steady-State Test Exhaust Analysis System

    (a) Sampling system--(1) General requirements. The sampling system 
for steady-state short tests shall, at a minimum, consist of a tailpipe 
probe, a flexible sample line, a water removal system, particulate trap, 
sample pump, flow control components, tachometer or dynamometer, 
analyzers for HC, CO, and CO2, and digital displays for exhaust 
concentrations of HC, CO, and CO2, and engine rpm. Materials that 
are in contact with the gases sampled shall not contaminate or change 
the character of the gases to be analyzed, including gases from alcohol 
fueled vehicles. The probe shall be capable of being inserted to a depth 
of at least ten inches into the tailpipe of the vehicle being tested, or 
into an extension boot if one is used. A digital display for dynamometer 
speed and load shall be included if the test procedures described in 
appendix B to this subpart, paragraphs (III) and (V), are conducted. 
Minimum specifications for optional NO analyzers are also described in 
this appendix. The analyzer system shall be able to test, as specified 
in at least one section in appendix B to this subpart, all model 
vehicles in service at the time of sale of the analyzer.
    (2) Temperature operating range. The sampling system and all 
associated hardware shall be of a design certified to operate within the 
performance specifications described in paragraph (I)(b) of this 
appendix in ambient air temperatures ranging from 41 to 110 degrees 
Fahrenheit. The analyzer system shall, where necessary, include features 
to keep the sampling system within the specified range.
    (3) Humidity operating range. The sampling system and all associated 
hardware shall be of a design certified to operate within the 
performance specifications described in paragraph (I)(b) of this 
appendix at a minimum of 80 percent relative humidity throughout the 
required temperature range.
    (4) Barometric pressure compensation. Barometric pressure 
compensation shall be provided. Compensation shall be made for 
elevations up to 6,000 feet (above mean sea level). At any given 
altitude and ambient conditions specified in paragraph (I)(b) of this 
appendix, errors due to barometric pressure changes of 2 
inches of mercury shall not exceed the accuracy limits specified in 
paragraph (I)(b) of this appendix.
    (5) Dual sample probe requirements. When testing a vehicle with dual 
exhaust pipes, a dual sample probe of a design certified by the analyzer 
manufacturer to provide equal flow in each leg shall be used. The equal 
flow requirement is considered to be met if the flow rate in each leg of 
the probe has been measured under two sample pump flow rates (the normal 
rate and a rate equal to the onset of low flow), and if the flow rates 
in each of the legs are found to be equal to each other (within 15% of 
the flow rate in the leg having lower flow).
    (6) System lockout during warm-up. Functional operation of the gas 
sampling unit shall remain disabled through a system lockout until the 
instrument meets stability and warm-up requirements. The instrument 
shall be considered ``warmed up'' when the zero and span readings for 
HC, CO, and CO2 have stabilized, within 3% of the full 
range of low scale, for five minutes without adjustment.
    (7) Electromagnetic isolation and interference. Electromagnetic 
signals found in an automotive service environment shall not cause 
malfunctions or changes in the accuracy in the electronics of the 
analyzer system. The instrument design shall ensure that readings do not 
vary as a result of electromagnetic radiation and induction devices 
normally found in the automotive service environment, including high 
energy vehicle ignition systems, radio frequency transmission radiation 
sources, and building electrical systems.
    (8) Vibration and shock protection. System operation shall be 
unaffected by the vibration and shock encountered under the normal 
operating conditions encountered in an automotive service environment.
    (9) Propane equivalency factor. The propane equivalency factor shall 
be displayed in a manner that enables it to be viewed conveniently, 
while permitting it to be altered only by personnel specifically 
authorized to do so.
    (b) Analyzers--(1) Accuracy. The analyzers shall be of a design 
certified to meet the following accuracy requirements when calibrated to 
the span points specified in appendix A to this subpart:
      

----------------------------------------------------------------------------------------------------------------
                              Channel                                  Range     Accuracy   Noise  Repeatability
----------------------------------------------------------------------------------------------------------------
HC, ppm...........................................................  0-400       2, %............................................................  0-4.0       2.................................  0.1% CO2.                         
NO..................................  1ppm NO.                          
RPM.................................  1rpm.                             
                                                                        

    (3) Response time. The response time from the probe to the display 
for HC, CO, and CO2 analyzers shall not exceed eight seconds to 90% 
of a step change in input. For NO analyzers, the response time shall not 
exceed twelve seconds to 90% of a step change in input.
    (4) Display refresh rate. Dynamic information being displayed shall 
be refreshed at a minimum rate of twice per second.
    (5) Interference effects. The interference effects for non-interest 
gases shall not exceed 10 ppm for hydrocarbons, 
0.05 percent for carbon monoxide, 0.20 percent 
for carbon dioxide, and 20 ppm for oxides of nitrogen.
    (6) Low flow indication. The analyzer shall provide an indication 
when the sample flow is below the acceptable level. The sampling system 
shall be equipped with a flow meter (or equivalent) that shall indicate 
sample flow degradation when meter error exceeds three percent of full 
scale, or causes system response time to exceed 13 seconds to 90 percent 
of a step change in input, whichever is less.
    (7) Engine speed detection. The analyzer shall utilize a tachometer 
capable of detecting engine speed in revolutions per minute (rpm) with a 
0.5 second response time and an accuracy of 3% of the true 
rpm.
    (8) Test and mode timers. The analyzer shall be capable of 
simultaneously determining the amount of time elapsed in a test, and in 
a mode within that test.
    (9) Sample rate. The analyzer shall be capable of measuring exhaust 
concentrations of gases specified in this section at a minimum rate of 
twice per second.
    (c) Demonstration of conformity. The analyzer shall be demonstrated 
to the satisfaction of the inspection program manager, through 
acceptance testing procedures, to meet the requirements of this section 
and that it is capable of being maintained as required in appendix A to 
this subpart.

                   (II) Steady-State Test Dynamometer

    (a) The chassis dynamometer for steady-state short tests shall 
provide the following capabilities:
    (1) Power absorption. The dynamometer shall be capable of applying a 
load to the vehicle's driving tire surfaces at the horsepower and speed 
levels specified in paragraph (II)(b) of this appendix.
    (2) Short-term stability. Power absorption at constant speed shall 
not drift more than 0.5 horsepower (hp) during any single 
test mode.
    (3) Roll weight capacity. The dynamometer shall be capable of 
supporting a driving axle weight up to four thousand (4,000) pounds or 
greater.
    (4) Between roll wheel lifts. These shall be controllable and 
capable of lifting a minimum of four thousand (4,000) pounds.
    (5) Roll brakes. Both rolls shall be locked when the wheel lift is 
up.
    (6) Speed indications. The dynamometer speed display shall have a 
range of 0-60 mph, and a resolution and accuracy of at least 1 mph.
    (7) Safety interlock. A roll speed sensor and safety interlock 
circuit shall be provided which prevents the application of the roll 
brakes and upward lift movement at any roll speed above 0.5 mph.
    (b) The dynamometer shall produce the load speed relationships 
specified in paragraphs (III) and (V) of appendix B to this subpart.

           (III) Transient Emission Test Equipment [Reserved]

         (IV) Evaporative System Purge Test Equipment [Reserved]

       (V) Evaporative System Integrity Test Equipment [Reserved]

[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993]

          Appendix E to Subpart S--Transient Test Driving Cycle

    (I) Driver's trace. All excursions in the transient driving cycle 
shall be evaluated by the procedures defined in Sec. 86.115-78(b)(1) and 
Sec. 86.115(c) of this chapter. Excursions exceeding these limits shall 
cause a test to be void. In addition, provisions shall be available to 
utilize cycle validation criteria, as described in Sec. 86.1341-90 of 
this chapter, for trace speed versus actual speed as a means to 
determine a valid test.
    (II) Driving cycle. The following table shows the time speed 
relationship for the transient IM240 test procedure.

------------------------------------------------------------------------
                             Second                                MPH  
------------------------------------------------------------------------
0..............................................................     0   

[[Page 837]]

                                                                        
1..............................................................     0   
2..............................................................     0   
3..............................................................     0   
4..............................................................     0   
5..............................................................     3   
6..............................................................     5.9 
7..............................................................     8.6 
8..............................................................    11.5 
9..............................................................    14.3 
10.............................................................    16.9 
11.............................................................    17.3 
12.............................................................    18.1 
13.............................................................    20.7 
14.............................................................    21.7 
15.............................................................    22.4 
16.............................................................    22.5 
17.............................................................    22.1 
18.............................................................    21.5 
19.............................................................    20.9 
20.............................................................    20.4 
21.............................................................    19.8 
22.............................................................    17   
23.............................................................    14.9 
24.............................................................    14.9 
25.............................................................    15.2 
26.............................................................    15.5 
27.............................................................    16   
28.............................................................    17.1 
29.............................................................    19.1 
30.............................................................    21.1 
31.............................................................    22.7 
32.............................................................    22.9 
33.............................................................    22.7 
34.............................................................    22.6 
35.............................................................    21.3 
36.............................................................    19   
37.............................................................    17.1 
38.............................................................    15.8 
39.............................................................    15.8 
40.............................................................    17.7 
41.............................................................    19.8 
42.............................................................    21.6 
43.............................................................    23.2 
44.............................................................    24.2 
45.............................................................    24.6 
46.............................................................    24.9 
47.............................................................    25   
48.............................................................    25.7 
49.............................................................    26.1 
50.............................................................    26.7 
51.............................................................    27.5 
52.............................................................    28.6 
53.............................................................    29.3 
54.............................................................    29.8 
55.............................................................    30.1 
56.............................................................    30.4 
57.............................................................    30.7 
58.............................................................    30.7 
59.............................................................    30.5 
60.............................................................    30.4 
61.............................................................    30.3 
62.............................................................    30.4 
63.............................................................    30.8 
64.............................................................    30.4 
65.............................................................    29.9 
66.............................................................    29.5 
67.............................................................    29.8 
68.............................................................    30.3 
69.............................................................    30.7 
70.............................................................    30.9 
71.............................................................    31   
72.............................................................    30.9 
73.............................................................    30.4 
74.............................................................    29.8 
75.............................................................    29.9 
76.............................................................    30.2 
77.............................................................    30.7 
78.............................................................    31.2 
79.............................................................    31.8 
80.............................................................    32.2 
81.............................................................    32.4 
82.............................................................    32.2 
83.............................................................    31.7 
84.............................................................    28.6 
85.............................................................    25.1 
86.............................................................    21.6 
87.............................................................    18.1 
88.............................................................    14.6 
89.............................................................    11.1 
90.............................................................     7.6 
91.............................................................     4.1 
92.............................................................     0.6 
93.............................................................     0   
94.............................................................     0   
95.............................................................     0   
96.............................................................     0   
97.............................................................     0   
98.............................................................     3.3 
99.............................................................     6.6 
100............................................................     9.9 
101............................................................    13.2 
102............................................................    16.5 
103............................................................    19.8 
104............................................................    22.2 
105............................................................    24.3 
106............................................................    25.8 
107............................................................    26.4 
108............................................................    25.7 
109............................................................    25.1 
110............................................................    24.7 
111............................................................    25.2 
112............................................................    25.4 
113............................................................    27.2 
114............................................................    26.5 
115............................................................    24   
116............................................................    22.7 
117............................................................    19.4 
118............................................................    17.7 
119............................................................    17.2 
120............................................................    18.1 
121............................................................    18.6 
122............................................................    20   
123............................................................    20.7 
124............................................................    21.7 
125............................................................    22.4 
126............................................................    22.5 
127............................................................    22.1 
128............................................................    21.5 
129............................................................    20.9 
130............................................................    20.4 
131............................................................    19.8 
132............................................................    17   
133............................................................    17.1 
134............................................................    15.8 
135............................................................    15.8 
136............................................................    17.7 
137............................................................    19.8 
138............................................................    21.6 
139............................................................    22.2 
140............................................................    24.5 
141............................................................    24.7 
142............................................................    24.8 
143............................................................    24.7 
144............................................................    24.6 
145............................................................    24.6 
146............................................................    25.1 
147............................................................    25.6 
148............................................................    25.7 

[[Page 838]]

                                                                        
149............................................................    25.4 
150............................................................    24.9 
151............................................................    25   
152............................................................    25.4 
153............................................................    26   
154............................................................    26   
155............................................................    25.7 
156............................................................    26.1 
157............................................................    26.7 
158............................................................    27.3 
159............................................................    30.5 
160............................................................    33.5 
161............................................................    36.2 
162............................................................    37.3 
163............................................................    39.3 
164............................................................    40.5 
165............................................................    42.1 
166............................................................    43.5 
167............................................................    45.1 
168............................................................    46   
169............................................................    46.8 
170............................................................    47.5 
171............................................................    47.5 
172............................................................    47.3 
173............................................................    47.2 
174............................................................    47.2 
175............................................................    47.4 
176............................................................    47.9 
177............................................................    48.5 
178............................................................    49.1 
179............................................................    49.5 
180............................................................    50   
181............................................................    50.6 
182............................................................    51   
183............................................................    51.5 
184............................................................    52.2 
185............................................................    53.2 
186............................................................    54.1 
187............................................................    54.6 
188............................................................    54.9 
189............................................................    55   
190............................................................    54.9 
191............................................................    54.6 
192............................................................    54.6 
193............................................................    54.8 
194............................................................    55.1 
195............................................................    55.5 
196............................................................    55.7 
197............................................................    56.1 
198............................................................    56.3 
199............................................................    56.6 
200............................................................    56.7 
201............................................................    56.7 
202............................................................    56.3 
203............................................................    56   
204............................................................    55   
205............................................................    53.4 
206............................................................    51.6 
207............................................................    51.8 
208............................................................    52.1 
209............................................................    52.5 
210............................................................    53   
211............................................................    53.5 
212............................................................    54   
213............................................................    54.9 
214............................................................    55.4 
215............................................................    55.6 
216............................................................    56   
217............................................................    56   
218............................................................    55.8 
219............................................................    55.2 
220............................................................    54.5 
221............................................................    53.6 
222............................................................    52.5 
223............................................................    51.5 
224............................................................    50.5 
225............................................................    48   
226............................................................    44.5 
227............................................................    41   
228............................................................    37.5 
229............................................................    34   
230............................................................    30.5 
231............................................................    27   
232............................................................    23.5 
233............................................................    20   
234............................................................    16.5 
235............................................................    13   
236............................................................     9.5 
237............................................................     6   
238............................................................     2.5 
239............................................................     0   
------------------------------------------------------------------------


[57 FR 52987, Nov. 5, 1992, as amended at 58 FR 59367, Nov. 9, 1993]



   Subpart T--Conformity to State or Federal Implementation Plans of 
   Transportation Plans, Programs, and Projects Developed, Funded or 
        Approved Under Title 23 U.S.C. or the Federal Transit Act

    Source: 58 FR 62216, Nov. 24, 1993, unless otherwise noted.



Sec. 51.390  Purpose.

    The purpose of this subpart is to implement section 176(c) of the 
Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and the 
related requirements of 23 U.S.C. 109(j), with respect to the conformity 
of transportation plans, programs, and projects which are developed, 
funded, or approved by the United States Department of Transportation 
(DOT), and by metropolitan planning organizations (MPOs) or other 
recipients of funds under title 23 U.S.C. or the Federal Transit Act (49 
U.S.C. 1601 et seq.). This subpart sets forth policy, criteria, and 
procedures for demonstrating and assuring conformity of such activities 
to an applicable implementation plan developed pursuant to section 110 
and Part D of the CAA.



Sec. 51.392  Definitions.

    Terms used but not defined in this subpart shall have the meaning 
given them by the CAA, titles 23 and 49 U.S.C., other Environmental 
Protection Agency (EPA) regulations, or

[[Page 839]]

other DOT regulations, in that order of priority.
    Applicable implementation plan is defined in section 302(q) of the 
CAA and means the portion (or portions) of the implementation plan, or 
most recent revision thereof, which has been approved under section 110, 
or promulgated under section 110(c), or promulgated or approved pursuant 
to regulations promulgated under section 301(d) and which implements the 
relevant requirements of the CAA.
    CAA means the Clean Air Act, as amended.
    Cause or contribute to a new violation for a project means:
    (1) To cause or contribute to a new violation of a standard in the 
area substantially affected by the project or over a region which would 
otherwise not be in violation of the standard during the future period 
in question, if the project were not implemented; or
    (2) To contribute to a new violation in a manner that would increase 
the frequency or severity of a new violation of a standard in such area.
    Control strategy implementation plan revision is the applicable 
implementation plan which contains specific strategies for controlling 
the emissions of and reducing ambient levels of pollutants in order to 
satisfy CAA requirements for demonstrations of reasonable further 
progress and attainment (CAA sections 182(b)(1), 182(c)(2)(A), 
182(c)(2)(B), 187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 
192(a) and 192(b), for nitrogen dioxide).
    Control strategy period with respect to particulate matter less than 
10 microns in diameter (PM10), carbon monoxide (CO), nitrogen 
dioxide (NO2), and/or ozone precursors (volatile organic compounds 
and oxides of nitrogen), means that period of time after EPA approves 
control strategy implementation plan revisions containing strategies for 
controlling PM10, NO2, CO, and/or ozone, as appropriate. This 
period ends when a State submits and EPA approves a request under 
section 107(d) of the CAA for redesignation to an attainment area.
    Design concept means the type of facility identified by the project, 
e.g., freeway, expressway, arterial highway, grade-separated highway, 
reserved right-of-way rail transit, mixed-traffic rail transit, 
exclusive busway, etc.
    Design scope means the design aspects which will affect the proposed 
facility's impact on regional emissions, usually as they relate to 
vehicle or person carrying capacity and control, e.g., number of lanes 
or tracks to be constructed or added, length of project, signalization, 
access control including approximate number and location of 
interchanges, preferential treatment for high-occupancy vehicles, etc.
    DOT means the United States Department of Transportation.
    EPA means the Environmental Protection Agency.
    FHWA means the Federal Highway Administration of DOT.
    FHWA/FTA project, for the purpose of this subpart, is any highway or 
transit project which is proposed to receive funding assistance and 
approval through the Federal-Aid Highway program or the Federal mass 
transit program, or requires Federal Highway Administration (FHWA) or 
Federal Transit Administration (FTA) approval for some aspect of the 
project, such as connection to an interstate highway or deviation from 
applicable design standards on the interstate system.
    FTA means the Federal Transit Administration of DOT.
    Forecast period with respect to a transportation plan is the period 
covered by the transportation plan pursuant to 23 CFR part 450.
    Highway project is an undertaking to implement or modify a highway 
facility or highway-related program. Such an undertaking consists of all 
required phases necessary for implementation. For analytical purposes, 
it must be defined sufficiently to:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;
    (2) Have independent utility or significance, i.e., be usable and be 
a reasonable expenditure even if no additional transportation 
improvements in the area are made; and
    (3) Not restrict consideration of alternatives for other reasonably 
foreseeable transportation improvements.

[[Page 840]]

    Horizon year is a year for which the transportation plan describes 
the envisioned transportation system according to Sec. 51.404.
    Hot-spot analysis is an estimation of likely future localized CO and 
PM10 pollutant concentrations and a comparison of those 
concentrations to the national ambient air quality standards. Pollutant 
concentrations to be estimated should be based on the total emissions 
burden which may result from the implementation of a single, specific 
project, summed together with future background concentrations (which 
can be estimated using the ratio of future to current traffic multiplied 
by the ratio of future to current emission factors) expected in the 
area. The total concentration must be estimated and analyzed at 
appropriate receptor locations in the area substantially affected by the 
project. Hot-spot analysis assesses impacts on a scale smaller than the 
entire nonattainment or maintenance area, including, for example, 
congested roadway intersections and highways or transit terminals, and 
uses an air quality dispersion model to determine the effects of 
emissions on air quality.
    Incomplete data area means any ozone nonattainment area which EPA 
has classified, in 40 CFR part 81, as an incomplete data area.
    Increase the frequency or severity means to cause a location or 
region to exceed a standard more often or to cause a violation at a 
greater concentration than previously existed and/or would otherwise 
exist during the future period in question, if the project were not 
implemented.
    ISTEA means the Intermodal Surface Transportation Efficiency Act of 
1991.
    Maintenance area means any geographic region of the United States 
previously designated nonattainment pursuant to the CAA Amendments of 
1990 and subsequently redesignated to attainment subject to the 
requirement to develop a maintenance plan under section 175A of the CAA, 
as amended.
    Maintenance period with respect to a pollutant or pollutant 
precursor means that period of time beginning when a State submits and 
EPA approves a request under section 107(d) of the CAA for redesignation 
to an attainment area, and lasting for 20 years, unless the applicable 
implementation plan specifies that the maintenance period shall last for 
more than 20 years.
    Metropolitan planning organization (MPO) is that organization 
designated as being responsible, together with the State, for conducting 
the continuing, cooperative, and comprehensive planning process under 23 
U.S.C. 134 and 49 U.S.C. 1607. It is the forum for cooperative 
transportation decision-making.
    Milestone has the meaning given in section 182(g)(1) and section 
189(c) of the CAA. A milestone consists of an emissions level and the 
date on which it is required to be achieved.
    Motor vehicle emissions budget is that portion of the total 
allowable emissions defined in a revision to the applicable 
implementation plan (or in an implementation plan revision which was 
endorsed by the Governor or his or her designee, subject to a public 
hearing, and submitted to EPA, but not yet approved by EPA) for a 
certain date for the purpose of meeting reasonable further progress 
milestones or attainment or maintenance demonstrations, for any criteria 
pollutant or its precursors, allocated by the applicable implementation 
plan to highway and transit vehicles. The applicable implementation plan 
for an ozone nonattainment area may also designate a motor vehicle 
emissions budget for oxides of nitrogen (NOx) for a reasonable 
further progress milestone year if the applicable implementation plan 
demonstrates that this NOx budget will be achieved with measures in 
the implementation plan (as an implementation plan must do for VOC 
milestone requirements). The applicable implementation plan for an ozone 
nonattainment area includes a NOx budget if NOx reductions are being 
substituted for reductions in volatile organic compounds in milestone 
years required for reasonable further progress.
    National ambient air quality standards (NAAQS) are those standards 
established pursuant to section 109 of the CAA.
    NEPA means the National Environmental Policy Act of 1969, as amended 
(42 U.S.C. 4321 et seq). I11NEPA process completion, for the purposes of 
this subpart, with respect to FHWA or FTA, means the point at which 
there is a

[[Page 841]]

specific action to make a determination that a project is categorically 
excluded, to make a Finding of No Significant Impact, or to issue a 
record of decision on a Final Environmental Impact Statement under NEPA.
    Nonattainment area means any geographic region of the United States 
which has been designated as nonattainment under Sec. 107 of the CAA for 
any pollutant for which a national ambient air quality standard exists.
    Not classified area means any carbon monoxide nonattainment area 
which EPA has not classified as either moderate or serious.
    Phase II of the interim period with respect to a pollutant or 
pollutant precursor means that period of time after the effective date 
of this rule, lasting until the earlier of the following:
    (1) Submission to EPA of the relevant control strategy 
implementation plan revisions which have been endorsed by the Governor 
(or his or her designee) and have been subject to a public hearing, or
    (2) The date that the Clean Air Act requires relevant control 
strategy +-o be submitted to EPA, provided EPA has notified the State, 
MPO, and DOT of the State's failure to submit any such plans. The 
precise end of Phase II of the interim period is defined in Sec. 51.448.
    Project means a highway project or transit project.
    Protective finding means a determination by EPA that the control 
strategy contained in a submitted control strategy implementation plan 
revision would have been considered approvable with respect to 
requirements for emissions reductions if all committed measures had been 
submitted in enforceable form as required by Clean Air Act section 
110(a)(2)(A).
    Recipient of funds designated under title 23 U.S.C. or the Federal 
Transit Act means any agency at any level of State, county, city, or 
regional government that routinely receives title 23 U.S.C. or Federal 
Transit Act funds to construct FHWA/FTA projects, operate FHWA/FTA 
projects or equipment, purchase equipment, or undertake other services 
or operations via contracts or agreements. This definition does not 
include private landowners or developers, or contractors or entities 
that are only paid for services or products created by their own 
employees.
    Regionally significant project means a transportation project (other 
than an exempt project) that is on a facility which serves regional 
transportation needs (such as access to and from the area outside of the 
region, major activity centers in the region, major planned developments 
such as new retail malls, sports complexes, etc., or transportation 
terminals as well as most terminals themselves) and would normally be 
included in the modeling of a metropolitan area's transportation 
network, including at a minimum all principal arterial highways and all 
fixed guideway transit facilities that offer an alternative to regional 
highway travel.
    Rural transport ozone nonattainment area means an ozone 
nonattainment area that does not include, and is not adjacent to, any 
part of a Metropolitan Statistical Area or, where one exists, a 
Consolidated Metropolitan Statistical Area (as defined by the United 
States Bureau of the Census) and is classified under Clean Air Act 
section 182(h) as a rural transport area.
    Standard means a national ambient air quality standard.
    Submarginal area means any ozone nonattainment area which EPA has 
classified as submarginal in 40 CFR part 81.
    Transit is mass transportation by bus, rail, or other conveyance 
which provides general or special service to the public on a regular and 
continuing basis. It does not include school buses or charter or 
sightseeing services.
    Transit project is an undertaking to implement or modify a transit 
facility or transit-related program; purchase transit vehicles or 
equipment; or provide financial assistance for transit operations. It 
does not include actions that are solely within the jurisdiction of 
local transit agencies, such as changes in routes, schedules, or fares. 
It may consist of several phases. For analytical purposes, it must be 
defined inclusively enough to:
    (1) Connect logical termini and be of sufficient length to address 
environmental matters on a broad scope;

[[Page 842]]

    (2) Have independent utility or independent significance, i.e., be a 
reasonable expenditure even if no additional transportation improvements 
in the area are made; and I11(3) Not restrict consideration of 
alternatives for other reasonably foreseeable transportation 
improvements.
    Transitional area means any ozone nonattainment area which EPA has 
classified as transitional in 40 CFR part 81.
    Transitional period with respect to a pollutant or pollutant 
precursor means that period of time which begins after submission to EPA 
of the relevant control strategy implementation plan which has been 
endorsed by the Governor (or his or her designee) and has been subject 
to a public hearing. The transitional period lasts until EPA takes final 
approval or disapproval action on the control strategy implementation 
plan submission or finds it to be incomplete. The precise beginning and 
end of the transitional period is defined in Sec. 51.448.
    Transportation control measure (TCM) is any measure that is 
specifically identified and committed to in the applicable 
implementation plan that is either one of the types listed in Sec. 108 
of the CAA, or any other measure for the purpose of reducing emissions 
or concentrations of air pollutants from transportation sources by 
reducing vehicle use or changing traffic flow or congestion conditions. 
Notwithstanding the above, vehicle technology-based, fuel-based, and 
maintenance-based measures which control the emissions from vehicles 
under fixed traffic conditions are not TCMs for the purposes of this 
subpart.
    Transportation improvement program (TIP) means a staged, multiyear, 
intermodal program of transportation projects covering a metropolitan 
planning area which is consistent with the metropolitan transportation 
plan, and developed pursuant to 23 CFR part 450. I11Transportation plan 
means the official intermodal metropolitan transportation plan that is 
developed through the metropolitan planning process for the metropolitan 
planning area, developed pursuant to 23 CFR part 450.
    Transportation project is a highway project or a transit project.

[58 FR 62216, Nov. 24, 1993, as amended at 60 FR 57184, Nov. 14, 1995]



Sec. 51.394  Applicability.

    (a) Action applicability. (1) Except as provided for in paragraph 
(c) of this section or Sec. 51.460, conformity determinations are 
required for:
    (i) The adoption, acceptance, approval or support of transportation 
plans developed pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO 
or DOT;
    (ii) The adoption, acceptance, approval or support of TIPs developed 
pursuant to 23 CFR part 450 or 49 CFR part 613 by an MPO or DOT; and
    (iii) The approval, funding, or implementation of FHWA/FTA projects.
    (2) Conformity determinations are not required under this rule for 
individual projects which are not FHWA/FTA projects. However, 
Sec. 51.450 applies to such projects if they are regionally significant.
    (b) Geographic applicability. (1) The provisions of this subpart 
shall apply in all nonattainment and maintenance areas for 
transportation-related criteria pollutants for which the area is 
designated nonattainment or has a maintenance plan.
    (2) The provisions of this subpart apply with respect to emissions 
of the following criteria pollutants: ozone, carbon monoxide, nitrogen 
dioxide, and particles with an aerodynamic diameter less than or equal 
to a nominal 10 micrometers (PM10).
    (3) The provisions of this subpart apply with respect to emissions 
of the following precursor pollutants:
    (i) Volatile organic compounds and nitrogen oxides in ozone areas;
    (ii) Nitrogen oxides in nitrogen dioxide areas; and
    (iii) Volatile organic compounds, nitrogen oxides, and PM10 in 
PM10 areas if:
    (A) During the interim period, the EPA Regional Administrator or the 
director of the State air agency has made a finding that transportation-
related precursor emissions within the nonattainment area are a 
significant contributor to the PM10 nonattainment

[[Page 843]]

problem and has so notified the MPO and DOT; or
    (B) During the transitional, control strategy, and maintenance 
periods, the applicable implementation plan (or implementation plan 
submission) establishes a budget for such emissions as part of the 
reasonable further progress, attainment or maintenance strategy.
    (c) Limitations. (1) Projects subject to this regulation for which 
the NEPA process and a conformity determination have been completed by 
FHWA or FTA may proceed toward implementation without further conformity 
determinations if one of the following major steps has occurred within 
the past three years: NEPA process completion; start of final design; 
acquisition of a significant portion of the right-of-way; or approval of 
the plans, specifications and estimates. All phases of such projects 
which were considered in the conformity determination are also included, 
if those phases were for the purpose of funding, final design, right-of-
way acquisition, construction, or any combination of these phases.
    (2) A new conformity determination for the project will be required 
if there is a significant change in project design concept and scope, if 
a supplemental environmental document for air quality purposes is 
initiated, or if no major steps to advance the project have occurred 
within the past three years.
    (d) Grace period for new nonattainment areas. For areas or portions 
of areas which have been in attainment for either ozone, CO, PM-10, or 
NO2 since 1990 and are subsequently redesignated to nonattainment 
for any of these pollutants, the provisions of this subpart shall not 
apply for such pollutant for 12 months following the date of final 
designation to nonattainment.

[58 FR 62216, Nov. 24, 1993, as amended at 60 FR 57184, Nov. 14, 1995]



Sec. 51.396  Implementation plan revision.

    (a) States with areas subject to this rule must submit to the EPA 
and DOT a revision to their implementation plan which contains criteria 
and procedures for DOT, MPOs and other State or local agencies to assess 
the conformity of transportation plans, programs, and projects, 
consistent with these regulations. This revision is to be submitted by 
November 25, 1994 (or within 12 months of an area's redesignation from 
attainment to nonattainment, if the State has not previously submitted 
such a revision). Further revisions to the implementation plan required 
by amendments to this subpart must be submitted within 12 months of the 
date of publication of such final amendments to this subpart. EPA will 
provide DOT with a 30-day comment period before taking action to approve 
or disapprove the submission. A State's conformity provisions may 
contain criteria and procedures more stringent than the requirements 
described in these regulations only if the State's conformity provisions 
apply equally to non-federal as well as Federal entities.
    (b) The Federal conformity rules under this subpart and 40 CFR part 
93, in addition to any existing applicable State requirements, establish 
the conformity criteria and procedures necessary to meet the 
requirements of Clean Air Act section 176(c) until such time as the 
required conformity implementation plan revision is approved by EPA. 
Following EPA approval of the State conformity provisions (or a portion 
thereof) in a revision to the applicable implementation plan, the 
approved (or approved portion of the) State criteria and procedures 
would govern conformity determinations and the Federal conformity 
regulations contained in 40 CFR part 93 would apply only for the 
portion, if any, of the State's conformity provisions that is not 
approved by EPA. In addition, any previously applicable implementation 
plan requirements relating to conformity remain enforceable until the 
State revises its applicable implementation plan to specifically remove 
them and that revision is approved by EPA.
    (c) To be approvable by EPA, the implementation plan revision 
submitted to EPA and DOT under this section shall address all 
requirements of this subpart in a manner which gives them full legal 
effect. In particular, the revision shall incorporate the provisions of 
the following sections of this subpart in verbatim form, except insofar 
as needed to give effect to a stated intent in the revision to establish 
criteria and

[[Page 844]]

procedures more stringent than the requirements stated in these 
sections: Sec. Sec. 51.392, 51.394, 51.398, 51.400, 51.404, 51.410, 
51.412, 51.414, 51.416, 51.418, 51.420, 51.422, 51.424, 51.426, 51.428, 
51.430, 51.432, 51.434, 51.436, 51.438, 51.440, 51.442, 51.444, 51.446, 
51.448, 51.450, 51.460, and 51.462.

[58 FR 62216, Nov. 24, 1993, as amended at 60 FR 57185, Nov. 14, 1995]



Sec. 51.398  Priority.

    When assisting or approving any action with air quality-related 
consequences, FHWA and FTA shall give priority to the implementation of 
those transportation portions of an applicable implementation plan 
prepared to attain and maintain the NAAQS. This priority shall be 
consistent with statutory requirements for allocation of funds among 
States or other jurisdictions.



Sec. 51.400  Frequency of conformity determinations.

    (a) Conformity determinations and conformity redeterminations for 
transportation plans, TIPs, and FHWA/FTA projects must be made according 
to the requirements of this section and the applicable implementation 
plan.
    (b) Transportation plans. (1) Each new transportation plan must be 
found to conform before the transportation plan is approved by the MPO 
or accepted by DOT.
    (2) All transportation plan revisions must be found to conform 
before the transportation plan revisions are approved by MPO or accepted 
by DOT, unless the revision merely adds or deletes exempt projects 
listed in Sec. 51.460. The conformity determination must be based on the 
transportation plan and the revision taken as a whole.
    (3) Conformity of existing transportation plans must be redetermined 
within 18 months of the following, or the existing conformity 
determination will lapse:
    (i) November 24, 1993;
    (ii) EPA approval of an implementation plan revision which:
    (A) Establishes or revises a transportation-related emissions budget 
(as required by CAA sections 175A(a), 182(b)(1), 182(c)(2)(A), 
182(c)(2)(B), 187(a)(7), 189(a)(1)(B), and 189(b)(1)(A); and sections 
192(a) and 192(b), for nitrogen dioxide); or
    (B) Adds, deletes, or changes TCMs; and
    (iii) EPA promulgation of an implementation plan which establishes 
or revises a transportation-related emissions budget or adds, deletes, 
or changes TCMs.
    (4) In any case, conformity determinations must be made no less 
frequently than every three years, or the existing conformity 
determination will lapse.
    (c) Transportation improvement programs. (1) A new TIP must be found 
to conform before the TIP is approved by the MPO or accepted by DOT.
    (2) A TIP amendment requires a new conformity determination for the 
entire TIP before the amendment is approved by the MPO or accepted by 
DOT, unless the amendment merely adds or deletes exempt projects listed 
in Sec. 51.460.
    (3) After an MPO adopts a new or revised transportation plan, 
conformity must be redetermined by the MPO and DOT within six months 
from the date of adoption of the plan, unless the new or revised plan 
merely adds or deletes exempt projects listed in Sec. 51.460. Otherwise, 
the existing conformity determination for the TIP will lapse.
    (4) In any case, conformity determinations must be made no less 
frequently than every three years or the existing conformity 
determination will lapse.
    (d) Projects. FHWA/FTA projects must be found to conform before they 
are adopted, accepted, approved, or funded. Conformity must be 
redetermined for any FHWA/FTA project if none of the following major 
steps has occurred within the past three years: NEPA process completion; 
start of final design; acquisition of a significant portion of the 
right-of-way; or approval of the plans, specifications and estimates.



Sec. 51.402  Consultation.

    (a) General. The implementation plan revision required under 
Sec. 51.396 shall include procedures for interagency consultation 
(Federal, State, and local) and resolution of conflicts.

[[Page 845]]

    (1) The implementation plan revision shall include procedures to be 
undertaken by MPOs, State departments of transportation, and DOT with 
State and local air quality agencies and EPA before making conformity 
determinations, and by State and local air agencies and EPA with MPOs, 
State departments of transportation, and DOT in developing applicable 
implementation plans.
    (2) Before the implementation plan revision is approved by EPA, MPOs 
and State departments of transportation before making conformity 
determinations must provide reasonable opportunity for consultation with 
State air agencies, local air quality and transportation agencies, DOT, 
and EPA, including consultation on the issues described in paragraph 
(c)(1) of this section.
    (b) Interagency consultation procedures: General factors. (1) States 
shall provide in the implementation plan well-defined consultation 
procedures whereby representatives of the MPOs, State and local air 
quality planning agencies, State and local transportation agencies, and 
other organizations with responsibilities for developing, submitting, or 
implementing provisions of an implementation plan required by the CAA 
must consult with each other and with local or regional offices of EPA, 
FHWA, and FTA on the development of the implementation plan, the 
transportation plan, the TIP, and associated conformity determinations.
    (2) Interagency consultation procedures shall include at a minimum 
the general factors listed below and the specific processes in paragraph 
(c) of this section:
    (i) The roles and responsibilities assigned to each agency at each 
stage in the implementation plan development process and the 
transportation planning process, including technical meetings;
    (ii) The organizational level of regular consultation;
    (iii) A process for circulating (or providing ready access to) draft 
documents and supporting materials for comment before formal adoption or 
publication;
    (iv) The frequency of, or process for convening, consultation 
meetings and responsibilities for establishing meeting agendas;
    (v) A process for responding to the significant comments of involved 
agencies; and
    (vi) A process for the development of a list of the TCMs which are 
in the applicable implementation plan.
    (c) Interagency consultation procedures: Specific processes. 
Interagency consultation procedures shall also include the following 
specific processes:
    (1) A process involving the MPO, State and local air quality 
planning agencies, State and local transportation agencies, EPA, and DOT 
for the following:
    (i) Evaluating and choosing a model (or models) and associated 
methods and assumptions to be used in hot-spot analyses and regional 
emissions analyses;
    (ii) Determining which minor arterials and other transportation 
projects should be considered ``regionally significant'' for the 
purposes of regional emissions analysis (in addition to those 
functionally classified as principal arterial or higher or fixed 
guideway systems or extensions that offer an alternative to regional 
highway travel), and which projects should be considered to have a 
significant change in design concept and scope from the transportation 
plan or TIP;
    (iii) Evaluating whether projects otherwise exempted from meeting 
the requirements of this subpart (see Sec. Sec. 51.460 and 51.462) 
should be treated as non-exempt in cases where potential adverse 
emissions impacts may exist for any reason;
    (iv) Making a determination, as required by Sec. 51.418(c)(1), 
whether past obstacles to implementation of TCMs which are behind the 
schedule established in the applicable implementation plan have been 
identified and are being overcome, and whether State and local agencies 
with influence over approvals or funding for TCMs are giving maximum 
priority to approval or funding for TCMs. This process shall also 
consider whether delays in TCM implementation necessitate revisions to 
the

[[Page 846]]

applicable implementation plan to remove TCMs or substitute TCMs or 
other emission reduction measures;
    (v) Identifying, as required by Sec. 51.454(d), projects located at 
sites in PM10 nonattainment areas which have vehicle and roadway 
emission and dispersion characteristics which are essentially identical 
to those at sites which have violations verified by monitoring, and 
therefore require quantitative PM10 hot-spot analysis; and
    (vi) Notification of transportation plan or TIP revisions or 
amendments which merely add or delete exempt projects listed in 
Sec. 51.460.
    (2) A process involving the MPO and State and local air quality 
planning agencies and transportation agencies for the following:
    (i) Evaluating events which will trigger new conformity 
determinations in addition to those triggering events established in 
Sec. 51.400; and
    (ii) Consulting on emissions analysis for transportation activities 
which cross the borders of MPOs or nonattainment areas or air basins.
    (3) Where the metropolitan planning area does not include the entire 
nonattainment or maintenance area, a process involving the MPO and the 
State department of transportation for cooperative planning and analysis 
for purposes of determining conformity of all projects outside the 
metropolitan area and within the nonattainment or maintenance area.
    (4) A process to ensure that plans for construction of regionally 
significant projects which are not FHWA/FTA projects (including projects 
for which alternative locations, design concept and scope, or the no-
build option are still being considered), including those by recipients 
of funds designated under title 23 U.S.C. or the Federal Transit Act, 
are disclosed to the MPO on a regular basis, and to ensure that any 
changes to those plans are immediately disclosed;
    (5) A process involving the MPO and other recipients of funds 
designated under title 23 U.S.C. or the Federal Transit Act for assuming 
the location and design concept and scope of projects which are 
disclosed to the MPO as required by paragraph (c)(4) of this section but 
whose sponsors have not yet decided these features, in sufficient detail 
to perform the regional emissions analysis according to the requirements 
of Sec. 51.452.
    (6) A process for consulting on the design, schedule, and funding of 
research and data collection efforts and regional transportation model 
development by the MPO (e.g., household/travel transportation surveys).
    (7) A process (including Federal agencies) for providing final 
documents (including applicable implementation plans and implementation 
plan revisions) and supporting information to each agency after approval 
or adoption.
    (d) Resolving conflicts. Conflicts among State agencies or between 
State agencies and an MPO shall be escalated to the Governor if they 
cannot be resolved by the heads of the involved agencies. The State air 
agency has 14 calendar days to appeal to the Governor after the State 
DOT or MPO has notified the State air agency head of the resolution of 
his or her comments. The implementation plan revision required by 
Sec. 51.396 shall define the procedures for starting of the 14-day 
clock. If the State air agency appeals to the Governor, the final 
conformity determination must have the concurrence of the Governor. If 
the State air agency does not appeal to the Governor within 14 days, the 
MPO or State department of transportation may proceed with the final 
conformity determination. The Governor may delegate his or her role in 
this process, but not to the head or staff of the State or local air 
agency, State department of transportation, State transportation 
commission or board, or an MPO.
    (e) Public consultation procedures. Affected agencies making 
conformity determinations on transportation plans, programs, and 
projects shall establish a proactive public involvement process which 
provides opportunity for public review and comment prior to taking 
formal action on a conformity determination for all transportation plans 
and TIPs, consistent with the requirements of 23 CFR part 450. In 
addition, these agencies must specifically address in writing all public 
comments that known plans for a regionally significant project which is 
not receiving FHWA or FTA funding or approval

[[Page 847]]

have not been properly reflected in the emissions analysis supporting a 
proposed conformity finding for a transportation plan or TIP. These 
agencies shall also provide opportunity for public involvement in 
conformity determinations for projects where otherwise required by law.



Sec. 51.404  Content of transportation plans.

    (a) Transportation plans adopted after January 1, 1995 in serious, 
severe, or extreme ozone nonattainment areas and in serious carbon 
monoxide nonattainment areas. The transportation plan must specifically 
describe the transportation system envisioned for certain future years 
which shall be called horizon years.
    (1) The agency or organization developing the transportation plan 
may choose any years to be horizon years, subject to the following 
restrictions:
    (i) Horizon years may be no more than 10 years apart.
    (ii) The first horizon year may be no more than 10 years from the 
base year used to validate the transportation demand planning model.
    (iii) If the attainment year is in the time span of the 
transportation plan, the attainment year must be a horizon year.
    (iv) The last horizon year must be the last year of the 
transportation plan's forecast period.
    (2) For these horizon years:
    (i) The transportation plan shall quantify and document the 
demographic and employment factors influencing expected transportation 
demand, including land use forecasts, in accordance with implementation 
plan provisions and Sec. 51.402;
    (ii) The highway and transit system shall be described in terms of 
the regionally significant additions or modifications to the existing 
transportation network which the transportation plan envisions to be 
operational in the horizon years. Additions and modifications to the 
highway network shall be sufficiently identified to indicate 
intersections with existing regionally significant facilities, and to 
determine their effect on route options between transportation analysis 
zones. Each added or modified highway segment shall also be sufficiently 
identified in terms of its design concept and design scope to allow 
modeling of travel times under various traffic volumes, consistent with 
the modeling methods for area-wide transportation analysis in use by the 
MPO. Transit facilities, equipment, and services envisioned for the 
future shall be identified in terms of design concept, design scope, and 
operating policies sufficiently to allow modeling of their transit 
ridership. The description of additions and modifications to the 
transportation network shall also be sufficiently specific to show that 
there is a reasonable relationship between expected land use and the 
envisioned transportation system; and
    (iii) Other future transportation policies, requirements, services, 
and activities, including intermodal activities, shall be described.
    (b) Moderate areas reclassified to serious. Ozone or CO 
nonattainment areas which are reclassified from moderate to serious must 
meet the requirements of paragraph (a) of this section within two years 
from the date of reclassification.
    (c) Transportation plans for other areas. Transportation plans for 
other areas must meet the requirements of paragraph (a) of this section 
at least to the extent it has been the previous practice of the MPO to 
prepare plans which meet those requirements. Otherwise, transportation 
plans must describe the transportation system envisioned for the future 
specifically enough to allow determination of conformity according to 
the criteria and procedures of Sec. Sec. 51.410 through 51.446.
    (d) Savings. The requirements of this section supplement other 
requirements of applicable law or regulation governing the format or 
content of transportation plans.



Sec. 51.406  Relationship of transportation plan and TIP conformity with the NEPA process.

    The degree of specificity required in the transportation plan and 
the specific travel network assumed for air quality modeling do not 
preclude the consideration of alternatives in the NEPA process or other 
project development studies. Should the NEPA process result in a project 
with design concept

[[Page 848]]

and scope significantly different from that in the transportation plan 
or TIP, the project must meet the criteria in Sec. Sec. 51.410 through 
51.446 for projects not from a TIP before NEPA process completion.



Sec. 51.408  Fiscal constraints for transportation plans and TIPs.

    Transportation plans and TIPs must be fiscally constrained 
consistent with DOT's metropolitan planning regulations at 23 CFR part 
450 in order to be found in conformity.



Sec. 51.410  Criteria and procedures for determining conformity of transportation plans, programs, and projects: General.

    (a) In order to be found to conform, each transportation plan, 
program, and FHWA/FTA project must satisfy the applicable criteria and 
procedures in Sec. Sec. 51.412 through 51.446 as listed in Table 1 in 
paragraph (b) of this section, and must comply with all applicable 
conformity requirements of implementation plans and of court orders for 
the area which pertain specifically to conformity determination 
requirements. The criteria for making conformity determinations differ 
based on the action under review (transportation plans, TIPs, and FHWA/
FTA projects), the time period in which the conformity determination is 
made, and the relevant pollutant.
    (b) The following table indicates the criteria and procedures in 
Sec. Sec. 51.412 through 51.446 which apply for each action in each time 
period.

                      Table 1.--Conformity Criteria                     
------------------------------------------------------------------------
                  Action                              Criteria          
------------------------------------------------------------------------
                               All Periods                              
------------------------------------------------------------------------
                                                                        
Transportation Plan.......................  Sec. Sec.  51.412, 51.414,  
                                             51.416, 51.418(b).         
TIP.......................................  Sec. Sec.  51.412, 51.414,  
                                             51.416, 51.418(c).         
Project (From a conforming plan and TIP)..  Sec. Sec.  51.412, 51.414,  
                                             51.416, 51.420, 51.422,    
                                             51.424, 51.426.            
Project (Not from a conforming plan and     Sec. Sec.  51.412, 51.414,  
 TIP).                                       51.416, 51.418(d), 51.420, 
                                             51.424, 51.426.            
------------------------------------------------------------------------
                                                                        
                     Phase II of the Interim Period                     
------------------------------------------------------------------------
                                                                        
Transportation Plan.......................  Sec. Sec.  51.436, 51.442.  
TIP.......................................  Sec. Sec.  51.438, 51.444.  
Project (From a conforming plan and TIP)..  Sec.  51.434.               
Project (Not from a conforming plan and     Sec.  51.434, 51.440,       
 TIP).                                       51.446.                    
------------------------------------------------------------------------
                                                                        
                           Transitional Period                          
------------------------------------------------------------------------
                                                                        
Transportation Plan.......................  Sec. Sec.  51.428, 51.436,  
                                             51.442.                    
TIP.......................................  Sec.  51.430, 51.438,       
                                             51.444.                    
Project (From a conforming plan and TIP)..  Sec.  51.434.               
Project (Not from a conforming plan and     Sec. Sec.  51.432, 51.434,  
 TIP).                                       51.440, 51.446.            
------------------------------------------------------------------------
                Control Strategy and Maintenance Periods                
------------------------------------------------------------------------
                                                                        
Transportation Plan.......................  Sec.  51.428.               
TIP.......................................  Sec.  51.430.               
Project (From a conforming plan and TIP)..  No additional criteria.     
Project (Not from a conforming plan and     Sec.  51.432.               
 TIP).                                                                  
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51.412  The conformity determination must be based on the latest 
          planning assumptions.
51.414  The conformity determination must be based on the latest 
          emission estimation model available.
51.416  The MPO must make the conformity determination according to the 
          consultation procedures of this rule and the implementation 
          plan revision required by Sec. 51.396.
51.418  The transportation plan, TIP, or FHWA/FTA project which is not 
          from a conforming plan and TIP must provide for the timely 
          implementation of TCMs from the applicable implementation 
          plan.
51.420  There must be a currently conforming transportation plan and 
          currently conforming TIP at the time of project approval.
51.422  The project must come from a conforming transportation plan and 
          program.
51.424  The FHWA/FTA project must not cause or contribute to any new 
          localized CO or PM10 violations or increase the frequency 
          or severity of any existing CO or PM10 violations in CO 
          and PM10 nonattainment and maintenance areas.
51.426  The FHWA/FTA project must comply with PM10 control measures 
          in the applicable implementation plan.
51.428  The transportation plan must be consistent with the motor 
          vehicle emissions budget(s) in the applicable implementation 
          plan or implementation plan submission.

[[Page 849]]

51.430  The TIP must be consistent with the motor vehicle emissions 
          budget(s) in the applicable implementation plan or 
          implementation plan submission.
51.432  The project which is not from a conforming transportation plan 
          and conforming TIP must be consistent with the motor vehicle 
          emissions budget(s) in the applicable implementation plan or 
          implementation plan submission.
51.434  The FHWA/FTA project must eliminate or reduce the severity and 
          number of localized CO violations in the area substantially 
          affected by the project (in CO nonattainment areas).
51.436  The transportation plan must contribute to emissions reductions 
          in ozone and CO nonattainment areas.
51.438  The TIP must contribute to emissions reductions in ozone and CO 
          nonattainment areas.
51.440  The project which is not from a conforming transportation plan 
          and TIP must contribute to emissions reductions in ozone and 
          CO nonattainment areas.
51.442  The transportation plan must contribute to emission reductions 
          or must not increase emissions in PM10 and NO2 
          nonattainment areas.
51.444  The TIP must contribute to emission reductions or must not 
          increase emissions in PM10 and NO2 nonattainment 
          areas.
51.446  The project which is not from a conforming transportation plan 
          and TIP must contribute to emission reductions or must not 
          increase emissions in PM10 and NO2 nonattainment 
          areas.



Sec. 51.412  Criteria and procedures: Latest planning assumptions.

    (a) The conformity determination, with respect to all other 
applicable criteria in Sec. Sec. 51.414 through 51.446, must be based 
upon the most recent planning assumptions in force at the time of the 
conformity determination. This criterion applies during all periods. The 
conformity determination must satisfy the requirements of paragraphs (b) 
through (f) of this section.
    (b) Assumptions must be derived from the estimates of current and 
future population, employment, travel, and congestion most recently 
developed by the MPO or other agency authorized to make such estimates 
and approved by the MPO. The conformity determination must also be based 
on the latest assumptions about current and future background 
concentrations.
    (c) The conformity determination for each transportation plan and 
TIP must discuss how transit operating policies (including fares and 
service levels) and assumed transit ridership have changed since the 
previous conformity determination.
    (d) The conformity determination must include reasonable assumptions 
about transit service and increases in transit fares and road and bridge 
tolls over time.
    (e) The conformity determination must use the latest existing 
information regarding the effectiveness of the TCMs which have already 
been implemented.
    (f) Key assumptions shall be specified and included in the draft 
documents and supporting materials used for the interagency and public 
consultation required by Sec. 51.402.



Sec. 51.414  Criteria and procedures: Latest emissions model.

    (a) The conformity determination must be based on the latest 
emission estimation model available. This criterion applies during all 
periods. It is satisfied if the most current version of the motor 
vehicle emissions model specified by EPA for use in the preparation or 
revision of implementation plans in that State or area is used for the 
conformity analysis. Where EMFAC is the motor vehicle emissions model 
used in preparing or revising the applicable implementation plan, new 
versions must be approved by EPA before they are used in the conformity 
analysis.
    (b) EPA will consult with DOT to establish a grace period following 
the specification of any new model.
    (1) The grace period will be no less than three months and no more 
than 24 months after notice of availability is published in the Federal 
Register.
    (2) The length of the grace period will depend on the degree of 
change in the model and the scope of re-planning likely to be necessary 
by MPOs in order to assure conformity. If the grace period will be 
longer than three months, EPA will announce the appropriate grace period 
in the Federal Register.
    (c) Conformity analyses for which the emissions analysis was begun 
during the grace period or before the Federal Register notice of 
availability of the

[[Page 850]]

latest emission model may continue to use the previous version of the 
model for transportation plans and TIPs. The previous model may also be 
used for projects if the analysis was begun during the grace period or 
before the Federal Register notice of availability, provided no more 
than three years have passed since the draft environmental document was 
issued.



Sec. 51.416  Criteria and procedures: Consultation.

    The MPO must make the conformity determination according to the 
consultation procedures in this rule and in the implementation plan 
revision required by Sec. 51.396, and according to the public 
involvement procedures established by the MPO in compliance with 23 CFR 
part 450. This criterion applies during all periods. Until the 
implementation plan revision required by Sec. 51.396 is approved by EPA, 
the conformity determination must be made according to the procedures in 
Sec. Sec. 51.402(a)(2) and 51.402(e). Once the implementation plan 
revision has been approved by EPA, this criterion is satisfied if the 
conformity determination is made consistent with the implementation 
plan's consultation requirements.



Sec. 51.418  Criteria and procedures: Timely implementation of TCMs.

    (a) The transportation plan, TIP, or FHWA/FTA project which is not 
from a conforming plan and TIP must provide for the timely 
implementation of TCMs from the applicable implementation plan. This 
criterion applies during all periods.
    (b) For transportation plans, this criterion is satisfied if the 
following two conditions are met:
    (1) The transportation plan, in describing the envisioned future 
transportation system, provides for the timely completion or 
implementation of all TCMs in the applicable implementation plan which 
are eligible for funding under title 23 U.S.C. or the Federal Transit 
Act, consistent with schedules included in the applicable implementation 
plan.
    (2) Nothing in the transportation plan interferes with the 
implementation of any TCM in the applicable implementation plan.
    (c) For TIPs, this criterion is satisfied if the following 
conditions are met:
    (1) An examination of the specific steps and funding source(s) 
needed to fully implement each TCM indicates that TCMs which are 
eligible for funding under title 23 U.S.C. or the Federal Transit Act 
are on or ahead of the schedule established in the applicable 
implementation plan, or, if such TCMs are behind the schedule 
established in the applicable implementation plan, the MPO and DOT have 
determined that past obstacles to implementation of the TCMs have been 
identified and have been or are being overcome, and that all State and 
local agencies with influence over approvals or funding for TCMs are 
giving maximum priority to approval or funding of TCMs over other 
projects within their control, including projects in locations outside 
the nonattainment or maintenance area.
    (2) If TCMs in the applicable implementation plan have previously 
been programmed for Federal funding but the funds have not been 
obligated and the TCMs are behind the schedule in the implementation 
plan, then the TIP cannot be found to conform if the funds intended for 
those TCMs are reallocated to projects in the TIP other than TCMs, or if 
there are no other TCMs in the TIP, if the funds are reallocated to 
projects in the TIP other than projects which are eligible for Federal 
funding under ISTEA's Congestion Mitigation and Air Quality Improvement 
Program.
    (3) Nothing in the TIP may interfere with the implementation of any 
TCM in the applicable implementation plan.
    (d) For FHWA/FTA projects which are not from a conforming 
transportation plan and TIP, this criterion is satisfied if the project 
does not interfere with the implementation of any TCM in the applicable 
implementation plan.



Sec. 51.420  Criteria and procedures: Currently conforming transportation plan and TIP.

    There must be a currently conforming transportation plan and 
currently conforming TIP at the time of project approval. This criterion 
applies during all periods. It is satisfied if the current

[[Page 851]]

transportation plan and TIP have been found to conform to the applicable 
implementation plan by the MPO and DOT according to the procedures of 
this subpart.
    (a) Only one conforming transportation plan or TIP may exist in an 
area at any time; conformity determinations of a previous transportation 
plan or TIP expire once the current plan or TIP is found to conform by 
DOT. The conformity determination on a transportation plan or TIP will 
also lapse if conformity is not determined according to the frequency 
requirements of Sec. 51.400.
    (b) This criterion is not required to be satisfied at the time of 
project approval for a TCM specifically included in the applicable 
implementation plan, provided that all other relevant criteria of this 
subpart are satisfied.

[60 FR 57185, Nov. 14, 1995]



Sec. 51.422  Criteria and procedures: Projects from a plan and TIP.

    (a) The project must come from a conforming plan and program. This 
criterion applies during all periods. If this criterion is not 
satisfied, the project must satisfy all criteria in Table 1 for a 
project not from a conforming transportation plan and TIP. A project is 
considered to be from a conforming transportation plan if it meets the 
requirements of paragraph (b) of this section and from a conforming 
program if it meets the requirements of paragraph (c) of this section. 
Special provisions for TCMs in an applicable implementation plan are 
provided in paragraph (d) of this section.
    (b) A project is considered to be from a conforming transportation 
plan if one of the following conditions applies:
    (1) For projects which are required to be identified in the 
transportation plan in order to satisfy Sec. 51.404, the project is 
specifically included in the conforming transportation plan and the 
project's design concept and scope have not changed significantly from 
those which were described in the transportation plan, or in a manner 
which would significantly impact use of the facility; or
    (2) For projects which are not required to be specifically 
identified in the transportation plan, the project is identified in the 
conforming transportation plan, or is consistent with the policies and 
purpose of the transportation plan and will not interfere with other 
projects specifically included in the transportation plan.
    (c) A project is considered to be from a conforming program if the 
following conditions are met:
    (1) The project is included in the conforming TIP and the design 
concept and scope of the project were adequate at the time of the TIP 
conformity determination to determine its contribution to the TIP's 
regional emissions and have not changed significantly from those which 
were described in the TIP, or in a manner which would significantly 
impact use of the facility; and
    (2) If the TIP describes a project design concept and scope which 
includes project-level emissions mitigation or control measures, written 
commitments to implement such measures must be obtained from the project 
sponsor and/or operator as required by Sec. 51.458(a) in order for the 
project to be considered from a conforming program. Any change in these 
mitigation or control measures that would significantly reduce their 
effectiveness constitutes a change in the design concept and scope of 
the project.
    (d) TCMs. This criterion is not required to be satisfied for TCMs 
specifically included in an applicable implementation plan.

[58 FR 62216, Nov. 24, 1993, as amended at 60 FR 57185, Nov. 14, 1995]



Sec. 51.424  Criteria and procedures: Localized CO and PM10 violations (hot spots).

    (a) The FHWA/FTA project must not cause or contribute to any new 
localized CO or PM10 violations or increase the frequency or 
severity of any existing CO or PM10 violations in CO and PM10 
nonattainment and maintenance areas. This criterion applies during all 
periods. This criterion is satisfied if it is demonstrated that no new 
local violations will be created and the severity or number of existing 
violations will not be increased as a result of the project.

[[Page 852]]

    (b) The demonstration must be performed according to the 
requirements of Sec. Sec. 51.402(c)(1)(i) and 51.454.
    (c) For projects which are not of the type identified by 
Sec. 51.454(a) or Sec. 51.454(d), this criterion may be satisfied if 
consideration of local factors clearly demonstrates that no local 
violations presently exist and no new local violations will be created 
as a result of the project. Otherwise, in CO nonattainment and 
maintenance areas, a quantitative demonstration must be performed 
according to the requirements of Sec. 51.454(b).



Sec. 51.426  Criteria and procedures: Compliance with PM10 control measures.

    The FHWA/FTA project must comply with PM10 control measures in 
the applicable implementation plan. This criterion applies during all 
periods. It is satisfied if control measures (for the purpose of 
limiting PM10 emissions from the construction activities and/or 
normal use and operation associated with the project) contained in the 
applicable implementation plan are included in the final plans, 
specifications, and estimates for the project.



Sec. 51.428  Criteria and procedures: Motor vehicle emissions budget (transportation plan).

    (a) The transportation plan must be consistent with the motor 
vehicle emissions budget(s) in the applicable implementation plan (or 
implementation plan submission). This criterion applies during the 
transitional period and the control strategy and maintenance periods, 
except as provided in Sec. 51.464. This criterion may be satisfied if 
the requirements in paragraphs (b) and (c) of this section are met.
    (b) A regional emissions analysis shall be performed as follows:
    (1) The regional analysis shall estimate emissions of any of the 
following pollutants and pollutant precursors for which the area is in 
nonattainment or maintenance and for which the applicable implementation 
plan (or implementation plan submission) establishes an emissions 
budget:
    (i) VOC as an ozone precursor;
    (ii) NOx as an ozone precursor;
    (iii) CO;
    (iv) PM 10 (and its precursors VOC and/or NOx if the 
applicable implementation plan or implementation plan submission 
identifies transportation-related precursor emissions within the 
nonattainment area as a significant contributor to the PM 10 
nonattainment problem or establishes a budget for such emissions); or
    (v) NOx (in NO 2 nonattainment or maintenance areas);
    (2) The regional emissions analysis shall estimate emissions from 
the entire transportation system, including all regionally significant 
projects contained in the transportation plan and all other regionally 
significant highway and transit projects expected in the nonattainment 
or maintenance area in the timeframe of the transportation plan;
    (3) The emissions analysis methodology shall meet the requirements 
of Sec. 51.452;
    (4) For areas with a transportation plan that meets the content 
requirements of Sec. 51.404(a), the emissions analysis shall be 
performed for each horizon year. Emissions in milestone years which are 
between the horizon years may be determined by interpolation; and
    (5) For areas with a transportation plan that does not meet the 
content requirements of Sec. 51.404(a), the emissions analysis shall be 
performed for any years in the time span of the transportation plan 
provided they are not more than ten years apart and provided the 
analysis is performed for the last year of the plan's forecast period. 
If the attainment year is in the time span of the transportation plan, 
the emissions analysis must also be performed for the attainment year. 
Emissions in milestone years which are between these analysis years may 
be determined by interpolation.
    (c) The regional emissions analysis shall demonstrate that for each 
of the applicable pollutants or pollutant precursors in paragraph (b)(1) 
of this section the emissions are less than or equal to the motor 
vehicle emissions budget as established in the applicable implementation 
plan or implementation plan submission as follows:

[[Page 853]]

    (1) If the applicable implementation plan or implementation plan 
submission establishes emissions budgets for milestone years, emissions 
in each milestone year are less than or equal to the motor vehicle 
emissions budget established for that year;
    (2) For nonattainment areas, emissions in the attainment year are 
less than or equal to the motor vehicle emissions budget established in 
the applicable implementation plan or implementation plan submission for 
that year;
    (3) For nonattainment areas, emissions in each analysis or horizon 
year after the attainment year are less than or equal to the motor 
vehicle emissions budget established by the applicable implementation 
plan or implementation plan submission for the attainment year. If 
emissions budgets are established for years after the attainment year, 
emissions in each analysis year or horizon year must be less than or 
equal to the motor vehicle emissions budget for that year, if any, or 
the motor vehicle emissions budget for the most recent budget year prior 
to the analysis year or horizon year; and
    (4) For maintenance areas, emissions in each analysis or horizon 
year are less than or equal to the motor vehicle emissions budget 
established by the maintenance plan for that year, if any, or the 
emissions budget for the most recent budget year prior to the analysis 
or horizon year.

[58 FR 62216, Nov. 24, 1993, as amended at 60 FR 57185, Nov. 14, 1995]



Sec. 51.430  Criteria and procedures: Motor vehicle emissions budget (TIP).

    (a) The TIP must be consistent with the motor vehicle emissions 
budget(s) in the applicable implementation plan (or implementation plan 
submission). This criterion applies during the transitional period and 
the control strategy and maintenance periods, except as provided in 
Sec. 51.464. This criterion may be satisfied if the requirements in 
paragraphs (b) and (c) of this section are met:
    (b) For areas with a conforming transportation plan that fully meets 
the content requirements of Sec. 51.404(a), this criterion may be 
satisfied without additional regional analysis if:
    (1) Each program year of the TIP is consistent with the Federal 
funding which may be reasonably expected for that year, and required 
State/local matching funds and funds for State/local funding-only 
projects are consistent with the revenue sources expected over the same 
period; and
    (2) The TIP is consistent with the conforming transportation plan 
such that the regional emissions analysis already performed for the plan 
applies to the TIP also. This requires a demonstration that:
    (i) The TIP contains all projects which must be started in the TIP's 
timeframe in order to achieve the highway and transit system envisioned 
by the transportation plan in each of its horizon years;
    (ii) All TIP projects which are regionally significant are part of 
the specific highway or transit system envisioned in the transportation 
plan's horizon years; and
    (iii) The design concept and scope of each regionally significant 
project in the TIP is not significantly different from that described in 
the transportation plan.
    (3) If the requirements in paragraphs (b)(1) and (b)(2) of this 
section are not met, then:
    (i) The TIP may be modified to meet those requirements; or
    (ii) The transportation plan must be revised so that the 
requirements in paragraphs (b)(1) and (b)(2) of this section are met. 
Once the revised plan has been found to conform, this criterion is met 
for the TIP with no additional analysis except a demonstration that the 
TIP meets the requirements of paragraphs (b)(1) and (b)(2) of this 
section.
    (c) For areas with a transportation plan that does not meet the 
content requirements of Sec. 51.404(a), a regional emissions analysis 
must meet all of the following requirements:
    (1) The regional emissions analysis shall estimate emissions from 
the entire transportation system, including all projects contained in 
the proposed TIP, the transportation plan, and all other regionally 
significant highway and transit projects expected in the

[[Page 854]]

nonattainment or maintenance area in the timeframe of the transportation 
plan;
    (2) The analysis methodology shall meet the requirements of 
Sec. 51.452(c); and
    (3) The regional analysis shall satisfy the requirements of 
Sec. Sec. 51.428(b)(1), 51.428(b)(5), and 51.428(c).



Sec. 51.432  Criteria and procedures: Motor vehicle emissions budget (project not from a plan and TIP).

    (a) The project which is not from a conforming transportation plan 
and a conforming TIP must be consistent with the motor vehicle emissions 
budget(s) in the applicable implementation plan (or implementation plan 
submission). This criterion applies during the transitional period and 
the control strategy and maintenance periods, except as provided in 
Sec. 51.464. It is satisfied if emissions from the implementation of the 
project, when considered with the emissions from the projects in the 
conforming transportation plan and TIP and all other regionally 
significant projects expected in the area, do not exceed the motor 
vehicle emissions budget(s) in the applicable implementation plan (or 
implementation plan submission).
    (b) For areas with a conforming transportation plan that meets the 
content requirements of Sec. 51.404(a):
    (1) This criterion may be satisfied without additional regional 
analysis if the project is included in the conforming transportation 
plan, even if it is not specifically included in the latest conforming 
TIP. This requires a demonstration that:
    (i) Allocating funds to the project will not delay the 
implementation of projects in the transportation plan or TIP which are 
necessary to achieve the highway and transit system envisioned by the 
transportation plan in each of its horizon years;
    (ii) The project is not regionally significant or is part of the 
specific highway or transit system envisioned in the transportation 
plan's horizon years; and
    (iii) The design concept and scope of the project is not 
significantly different from that described in the transportation plan.
    (2) If the requirements in paragraph (b)(1) of this section are not 
met, a regional emissions analysis must be performed as follows:
    (i) The analysis methodology shall meet the requirements of 
Sec. 51.452;
    (ii) The analysis shall estimate emissions from the transportation 
system, including the proposed project and all other regionally 
significant projects expected in the nonattainment or maintenance area 
in the timeframe of the transportation plan. The analysis must include 
emissions from all previously approved projects which were not from a 
transportation plan and TIP; and
    (iii) The emissions analysis shall meet the requirements of 
Sec. Sec. 51.428(b)(1), 51.428(b)(4), and 51.428(c).
    (c) For areas with a transportation plan that does not meet the 
content requirements of Sec. 51.404(a), a regional emissions analysis 
must be performed for the project together with the conforming TIP and 
all other regionally significant projects expected in the nonattainment 
or maintenance area. This criterion may be satisfied if:
    (1) The analysis methodology meets the requirements of 
Sec. 51.452(c);
    (2) The analysis estimates emissions from the transportation system, 
including the proposed project, and all other regionally significant 
projects expected in the nonattainment or maintenance area in the 
timeframe of the transportation plan; and
    (3) The regional analysis satisfies the requirements of 
Sec. Sec. 51.428(b)(1), 51.428(b)(5), and 51.428(c).



Sec. 51.434  Criteria and procedures: Localized CO violations (hot spots) in the interim period.

    (a) Each FHWA/FTA project must eliminate or reduce the severity and 
number of localized CO violations in the area substantially affected by 
the project (in CO nonattainment areas). This criterion applies during 
the interim and transitional periods only. This criterion is satisfied 
with respect to existing localized CO violations if it is demonstrated 
that existing localized CO violations will be eliminated or reduced in 
severity and number as a result of the project.

[[Page 855]]

    (b) The demonstration must be performed according to the 
requirements of Sec. Sec. 51.402(c)(1)(i) and 51.454.
    (c) For projects which are not of the type identified by 
Sec. 51.454(a), this criterion may be satisfied if consideration of 
local factors clearly demonstrates that existing CO violations will be 
eliminated or reduced in severity and number. Otherwise, a quantitative 
demonstration must be performed according to the requirements of 
Sec. 51.454(b).



Sec. 51.436  Criteria and procedures: Interim period reductions in ozone and CO areas (transportation plan).

    (a) A transportation plan must contribute to emissions reductions in 
ozone and CO nonattainment areas. This criterion applies during the 
interim and transitional periods only, except as otherwise provided in 
Sec. 51.464. It applies to the net effect on emissions of all projects 
contained in a new or revised transportation plan. This criterion may be 
satisfied if a regional emissions analysis is performed as described in 
paragraphs (b) through (f) of this section.
    (b) Determine the analysis years for which emissions are to be 
estimated. Analysis years shall be no more than ten years apart. The 
first analysis year shall be no later than the first milestone year 
(1995 in CO nonattainment areas and 1996 in ozone nonattainment areas). 
The second analysis year shall be either the attainment year for the 
area, or if the attainment year is the same as the first analysis year 
or earlier, the second analysis year shall be at least five years beyond 
the first analysis year. The last year of the transportation plan's 
forecast period shall also be an analysis year.
    (c) Define the `Baseline' scenario for each of the analysis years to 
be the future transportation system that would result from current 
programs, composed of the following (except that projects listed in 
Sec. Sec. 51.460 and 51.462 need not be explicitly considered):
    (1) All in-place regionally significant highway and transit 
facilities, services and activities;
    (2) All ongoing travel demand management or transportation system 
management activities; and
    (3) Completion of all regionally significant projects, regardless of 
funding source, which are currently under construction or are undergoing 
right-of-way acquisition (except for hardship acquisition and protective 
buying); come from the first three years of the previously conforming 
transportation plan and/or TIP; or have completed the NEPA process. (For 
the first conformity determination on the transportation plan after 
November 24, 1993, a project may not be included in the ``Baseline'' 
scenario if one of the following major steps has not occurred within the 
past three years: NEPA process completion; start of final design; 
acquisition of a significant portion of the right-of-way; or approval of 
the plans, specifications and estimates. Such a project must be included 
in the ``Action'' scenario, as described in paragraph (d) of this 
section.)
    (d) Define the `Action' scenario for each of the analysis years as 
the transportation system that will result in that year from the 
implementation of the proposed transportation plan, TIPs adopted under 
it, and other expected regionally significant projects in the 
nonattainment area. It will include the following (except that projects 
listed in Sec. Sec. 51.460 and 51.462 need not be explicitly 
considered):
    (1) All facilities, services, and activities in the `Baseline' 
scenario;
    (2) Completion of all TCMs and regionally significant projects 
(including facilities, services, and activities) specifically identified 
in the proposed transportation plan which will be operational or in 
effect in the analysis year, except that regulatory TCMs may not be 
assumed to begin at a future time unless the regulation is already 
adopted by the enforcing jurisdiction or the TCM is identified in the 
applicable implementation plan;
    (3) All travel demand management programs and transportation system 
management activities known to the MPO, but not included in the 
applicable implementation plan or utilizing any Federal funding or 
approval, which have been fully adopted and/or funded by the enforcing 
jurisdiction or sponsoring agency since the last conformity 
determination on the transportation plan;

[[Page 856]]

    (4) The incremental effects of any travel demand management programs 
and transportation system management activities known to the MPO, but 
not included in the applicable implementation plan or utilizing any 
Federal funding or approval, which were adopted and/or funded prior to 
the date of the last conformity determination on the transportation 
plan, but which have been modified since then to be more stringent or 
effective;
    (5) Completion of all expected regionally significant highway and 
transit projects which are not from a conforming transportation plan and 
TIP; and
    (6) Completion of all expected regionally significant non-FHWA/FTA 
highway and transit projects that have clear funding sources and 
commitments leading toward their implementation and completion by the 
analysis year.
    (e) Estimate the emissions predicted to result in each analysis year 
from travel on the transportation systems defined by the `Baseline' and 
`Action' scenarios and determine the difference in regional VOC and 
NOx emissions (unless the Administrator determines that additional 
reductions of NOx would not contribute to attainment) between the 
two scenarios for ozone nonattainment areas and the difference in CO 
emissions between the two scenarios for CO nonattainment areas. The 
analysis must be performed for each of the analysis years according to 
the requirements of Sec. 51.452. Emissions in milestone years which are 
between the analysis years may be determined by interpolation.
    (f) This criterion is met if the regional VOC and NOxemissions 
(for ozone nonattainment areas) and CO emissions (for CO nonattainment 
areas) predicted in the `Action' scenario are less than the emissions 
predicted from the `Baseline' scenario in each analysis year, and if 
this can reasonably be expected to be true in the periods between the 
first milestone year and the analysis years. The regional analysis must 
show that the `Action' scenario contributes to a reduction in emissions 
from the 1990 emissions by any nonzero amount.



Sec. 51.438  Criteria and procedures: Interim period reductions in ozone and CO areas (TIP).

    (a) A TIP must contribute to emissions reductions in ozone and CO 
nonattainment areas. This criterion applies during the interim and 
transitional periods only, except as otherwise provided in Sec. 51.464. 
It applies to the net effect on emissions of all projects contained in a 
new or revised TIP. This criterion may be satisfied if a regional 
emissions analysis is performed as described in paragraphs (b) through 
(f) of this section.
    (b) Determine the analysis years for which emissions are to be 
estimated. The first analysis year shall be no later than the first 
milestone year (1995 in CO nonattainment areas and 1996 in ozone 
nonattainment areas). The analysis years shall be no more than ten years 
apart. The second analysis year shall be either the attainment year for 
the area, or if the attainment year is the same as the first analysis 
year or earlier, the second analysis year shall be at least five years 
beyond the first analysis year. The last year of the transportation 
plan's forecast period shall also be an analysis year.
    (c) Define the `Baseline' scenario as the future transportation 
system that would result from current programs, composed of the 
following (except that projects listed in Sec. Sec. 51.460 and 51.462 
need not be explicitly considered):
    (1) All in-place regionally significant highway and transit 
facilities, services and activities;
    (2) All ongoing travel demand management or transportation system 
management activities; and
    (3) Completion of all regionally significant projects, regardless of 
funding source, which are currently under construction or are undergoing 
right-of-way acquisition (except for hardship acquisition and protective 
buying); come from the first three years of the previously conforming 
TIP; or have completed the NEPA process. (For the first conformity 
determination on the TIP after November 24, 1993, a project may not be 
included in the ``Baseline'' scenario if one of the following major 
steps has not occurred within the past three years: NEPA process 
completion; start of final design; acquisition of a

[[Page 857]]

significant portion of the right-of-way; or approval of the plans, 
specifications and estimates. Such a project must be included in the 
``Action'' scenario, as described in paragraph (d) of this section.)
    (d) Define the `Action' scenario as the future transportation system 
that will result from the implementation of the proposed TIP and other 
expected regionally significant projects in the nonattainment area in 
the timeframe of the transportation plan. It will include the following 
(except that projects listed in Sec. Sec. 51.460 and 51.462 need not be 
explicitly considered):
    (1) All facilities, services, and activities in the `Baseline' 
scenario;
    (2) Completion of all TCMs and regionally significant projects 
(including facilities, services, and activities) included in the 
proposed TIP, except that regulatory TCMs may not be assumed to begin at 
a future time unless the regulation is already adopted by the enforcing 
jurisdiction or the TCM is contained in the applicable implementation 
plan;
    (3) All travel demand management programs and transportation system 
management activities known to the MPO, but not included in the 
applicable implementation plan or utilizing any Federal funding or 
approval, which have been fully adopted and/or funded by the enforcing 
jurisdiction or sponsoring agency since the last conformity 
determination on the TIP;
    (4) The incremental effects of any travel demand management programs 
and transportation system management activities known to the MPO, but 
not included in the applicable implementation plan or utilizing any 
Federal funding or approval, which were adopted and/or funded prior to 
the date of the last conformity determination on the TIP, but which have 
been modified since then to be more stringent or effective;
    (5) Completion of all expected regionally significant highway and 
transit projects which are not from a conforming transportation plan and 
TIP; and
    (6) Completion of all expected regionally significant non-FHWA/FTA 
highway and transit projects that have clear funding sources and 
commitments leading toward their implementation and completion by the 
analysis year.
    (e) Estimate the emissions predicted to result in each analysis year 
from travel on the transportation systems defined by the 'Baseline' and 
'Action' scenarios, and determine the difference in regional VOC and 
NOx emissions (unless the Administrator determines that additional 
reductions of NOx would not contribute to attainment) between the 
two scenarios for ozone nonattainment areas and the difference in CO 
emissions between the two scenarios for CO nonattainment areas. The 
analysis must be performed for each of the analysis years according to 
the requirements of Sec. 51.452. Emissions in milestone years which are 
between analysis years may be determined by interpolation.
    (f) This criterion is met if the regional VOC and NOx emissions 
in ozone nonattainment areas and CO emissions in CO nonattainment areas 
predicted in the `Action' scenario are less than the emissions predicted 
from the `Baseline' scenario in each analysis year, and if this can 
reasonably be expected to be true in the period between the analysis 
years. The regional analysis must show that the `Action' scenario 
contributes to a reduction in emissions from the 1990 emissions by any 
nonzero amount.



Sec. 51.440  Criteria and procedures: Interim period reductions for ozone and CO areas (project not from a plan and TIP).

    A Transportation project which is not from a conforming 
transportation plan and TIP must contribute to emissions reductions in 
ozone and CO nonattainment areas. This criterion applies during the 
interim and transitional periods only, except as otherwise provided in 
Sec. 51.464. This criterion is satisfied if a regional emissions 
analysis is performed which meets the requirements of Sec. 51.436 and 
which includes the transportation plan and project in the `Action' 
scenario. If the project which is not from a conforming transportation 
plan and TIP is a modification of a project currently in the plan or 
TIP, the `Baseline' scenario must include the project with its original 
design concept and scope, and the `Action' scenario must include the

[[Page 858]]

project with its new design concept and scope.



Sec. 51.442  Criteria and procedures: Interim period reductions for PM10 and NO2 areas (transportation plan).

    (a) A transportation plan must contribute to emission reductions or 
must not increase emissions in PM10 and NO2 nonattainment 
areas. This criterion applies only during the interim and transitional 
periods. It applies to the net effect on emissions of all projects 
contained in a new or revised transportation plan. This criterion may be 
satisfied if the requirements of either paragraph (b) or (c) of this 
section are met.
    (b) Demonstrate that implementation of the plan and all other 
regionally significant projects expected in the nonattainment area will 
contribute to reductions in emissions of PM10 in a PM10 
nonattainment area (and of each transportation-related precursor of 
PM10 in PM10 nonattainment areas if the EPA Regional 
Administrator or the director of the State air agency has made a finding 
that such precursor emissions from within the nonattainment area are a 
significant contributor to the PM10 nonattainment problem and has 
so notified the MPO and DOT) and of NOx in an NO2 
nonattainment area, by performing a regional emissions analysis as 
follows:
    (1) Determine the analysis years for which emissions are to be 
estimated. Analysis years shall be no more than ten years apart. The 
first analysis year shall be no later than 1996 (for NO2 areas) or 
four years and six months following the date of designation (for 
PM10 areas). The second analysis year shall be either the 
attainment year for the area, or if the attainment year is the same as 
the first analysis year or earlier, the second analysis year shall be at 
least five years beyond the first analysis year. The last year of the 
transportation plan's forecast period shall also be an analysis year.
    (2) Define for each of the analysis years the ``Baseline'' scenario, 
as defined in Sec. 51.436(c), and the ``Action'' scenario, as defined in 
Sec. 51.436(d).
    (3) Estimate the emissions predicted to result in each analysis year 
from travel on the transportation systems defined by the ``Baseline'' 
and ``Action'' scenarios and determine the difference between the two 
scenarios in regional PM10 emissions in a PM10 nonattainment 
area (and transportation-related precursors of PM10 in PM10 
nonattainment areas if the EPA Regional Administrator or the director of 
the State air agency has made a finding that such precursor emissions 
from within the nonattainment area are a significant contributor to the 
PM10 nonattainment problem and has so notified the MPO and DOT) and 
in NOx emissions in an NO2 nonattainment area. The analysis 
must be performed for each of the analysis years according to the 
requirements of Sec. 51.452. The analysis must address the periods 
between the analysis years and the periods between 1990, the first 
milestone year (if any), and the first of the analysis years. Emissions 
in milestone years which are between the analysis years may be 
determined by interpolation.
    (4) Demonstrate that the regional PM10 emissions and PM10 
precursor emissions, where applicable, (for PM10 nonattainment 
areas) and NOx emissions (for NO2 nonattainment areas) 
predicted in the `Action' scenario are less than the emissions predicted 
from the `Baseline' scenario in each analysis year, and that this can 
reasonably be expected to be true in the periods between the first 
milestone year (if any) and the analysis years.
    (c) Demonstrate that when the projects in the transportation plan 
and all other regionally significant projects expected in the 
nonattainment area are implemented, the transportation system's total 
highway and transit emissions of PM10 in a PM10 nonattainment 
area (and transportation-related precursors of PM10 in PM10 
nonattainment areas if the EPA Regional Administrator or the director of 
the State air agency has made a finding that such precursor emissions 
from within the nonattainment area are a significant contributor to the 
PM10 nonattainment problem and has so notified the MPO and DOT) and 
of NOx in an NO2 nonattainment area will not be greater than 
baseline levels, by performing a regional emissions analysis as follows:

[[Page 859]]

    (1) Determine the baseline regional emissions of PM10 and 
PM10 precursors, where applicable (for PM10 nonattainment 
areas) and NOx (for NO2 nonattainment areas) from highway and 
transit sources. Baseline emissions are those estimated to have occurred 
during calendar year 1990, unless the implementation plan revision 
required by Sec. 51.396 defines the baseline emissions for a PM10 
area to be those occurring in a different calendar year for which a 
baseline emissions inventory was developed for the purpose of developing 
a control strategy implementation plan.
    (2) Estimate the emissions of the applicable pollutant(s) from the 
entire transportation system, including projects in the transportation 
plan and TIP and all other regionally significant projects in the 
nonattainment area, according to the requirements of Sec. 51.452. 
Emissions shall be estimated for analysis years which are no more than 
ten years apart. The first analysis year shall be no later than 1996 
(for NO2 areas) or four years and six months following the date of 
designation (for PM10 areas). The second analysis year shall be 
either the attainment year for the area, or if the attainment year is 
the same as the first analysis year or earlier, the second analysis year 
shall be at least five years beyond the first analysis year. The last 
year of the transportation plan's forecast period shall also be an 
analysis year.
    (3) Demonstrate that for each analysis year the emissions estimated 
in paragraph (c)(2) of this section are no greater than baseline 
emissions of PM10 and PM10 precursors, where applicable (for 
PM10 nonattainment areas) or NOx (for NO2 nonattainment 
areas) from highway and transit sources.



Sec. 51.444  Criteria and procedures: Interim period reductions for PM10 and NO2 areas (TIP).

    (a) A TIP must contribute to emission reductions or must not 
increase emissions in PM10 and NO2 nonattainment areas. This 
criterion applies only during the interim and transitional periods. It 
applies to the net effect on emissions of all projects contained in a 
new or revised TIP. This criterion may be satisfied if the requirements 
of either paragraph (b) or paragraph (c) of this section are met.
    (b) Demonstrate that implementation of the plan and TIP and all 
other regionally significant projects expected in the nonattainment area 
will contribute to reductions in emissions of PM10 in a PM10 
nonattainment area (and transportation-related precursors of PM10 
in PM10 nonattainment areas if the EPA Regional Administrator or 
the director of the State air agency has made a finding that such 
precursor emissions from within the nonattainment area are a significant 
contributor to the PM10 nonattainment problem and has so notified 
the MPO and DOT) and of NOx in an NO2 nonattainment area, by 
performing a regional emissions analysis as follows:
    (1) Determine the analysis years for which emissions are to be 
estimated, according to the requirements of Sec. 51.442(b)(1).
    (2) Define for each of the analysis years the ``Baseline'' scenario, 
as defined in Sec. 51.438(c), and the ``Action'' scenario, as defined in 
Sec. 51.438(d).
    (3) Estimate the emissions predicted to result in each analysis year 
from travel on the transportation systems defined by the ``Baseline'' 
and ``Action'' scenarios as required by Sec. 51.442(b)(3), and make the 
demonstration required by Sec. 51.442(b)(4).
    (c) Demonstrate that when the projects in the transportation plan 
and TIP and all other regionally significant projects expected in the 
area are implemented, the transportation system's total highway and 
transit emissions of PM10 in a PM10 nonattainment area (and 
transportation-related precursors of PM10 in PM10 
nonattainment areas if the EPA Regional Administrator or the director of 
the State air agency has made a finding that such precursor emissions 
from within the nonattainment area are a significant contributor to the 
PM10 nonattainment problem and has so notified the MPO and DOT) and 
of NOx in an NO2 nonattainment area will not be greater than 
baseline levels, by performing a regional emissions analysis as required 
by Sec. 51.442(c) (1)-(3).

[[Page 860]]



Sec. 51.446  Criteria and procedures: Interim period reductions for PM10 and NO2 areas (project not from a plan and TIP).

    A transportation project which is not from a conforming 
transportation plan and TIP must contribute to emission reductions or 
must not increase emissions in PM10 and NO2 nonattainment 
areas. This criterion applies during the interim and transitional 
periods only. This criterion is met if a regional emissions analysis is 
performed which meets the requirements of Sec. 51.442 and which includes 
the transportation plan and project in the `Action' scenario. If the 
project which is not from a conforming transportation plan and TIP is a 
modification of a project currently in the transportation plan or TIP, 
and Sec. 51.442(b) is used to demonstrate satisfaction of this 
criterion, the `Baseline' scenario must include the project with its 
original design concept and scope, and the `Action' scenario must 
include the project with its new design concept and scope.



Sec. 51.448  Transition from the interim period to the control strategy period.

    (a) Control strategy implementation plan submissions. (1) The 
transportation plan and TIP must be demonstrated to conform by 18 months 
from the date of the State's initial submission to EPA of each control 
strategy implementation plan establishing a motor vehicle emissions 
budget. If conformity is not determined by 18 months from the date of 
submission of such control strategy implementation plan, the conformity 
status of the transportation plan and TIP will lapse, and no new 
project-level conformity determinations may be made, until the 
transportation plan and TIP have been demonstrated to conform.
    (2) For areas not yet in the control strategy period for a given 
pollutant, conformity shall be demonstrated using the motor vehicle 
emissions budget(s) in a submitted control strategy implementation plan 
revision for that pollutant beginning 90 days after submission, unless 
EPA declares such budget(s) inadequate for transportation conformity 
purposes. The motor vehicle emissions budget(s) may be used to determine 
conformity during the first 90 days after its submission if EPA agrees 
that the budget(s) are adequate for conformity purposes.
    (b) Disapprovals. (1) If EPA disapproves the submitted control 
strategy implementation plan revision and so notifies the State, MPO, 
and DOT, which initiates the sanction process under Clean Air Act 
section 179 or 110(m), the conformity status of the transportation plan 
and TIP shall lapse 120 days after EPA's disapproval, and no new 
project-level conformity determinations may be made. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (2) Notwithstanding paragraph (b)(1) of this section, if EPA 
disapproves the submitted control strategy implementation plan revision 
but makes a protective finding, the conformity status of the 
transportation plan and TIP shall lapse on the date that highway 
sanctions as a result of the disapproval are imposed on the 
nonattainment area under section 179(b)(1) of the Clean Air Act. No new 
transportation plan, TIP, or project may be found to conform until 
another control strategy implementation plan revision fulfilling the 
same Clean Air Act requirements is submitted and conformity to this 
submission is determined.
    (c) Failure to submit and incompleteness. For areas where EPA 
notifies the State, MPO, and DOT of the State's failure to submit or 
submission of an incomplete control strategy implementation plan 
revision, which initiates the sanction process under Clean Air Act 
section 179 or 110(m), the conformity status of the transportation plan 
and TIP shall lapse on the date that highway sanctions are imposed on 
the nonattainment area for such failure under section 179(b)(1) of the 
Clean Air Act, unless the failure has been remedied and acknowledged by 
a letter from the EPA Regional Administrator.
    (d) Federal implementation plans. When EPA promulgates a federal 
implementation plan that contains motor vehicle emissions budget(s) as a 
result of a

[[Page 861]]

State failure, the conformity lapse imposed by this section because of 
that State failure is removed.
    (e) Projects. If the currently conforming transportation plan and 
TIP have not been demonstrated to conform according to transitional 
period criteria and procedures, the requirements of paragraphs (e) (1) 
and (2) of this section must be met.
    (1) Before a FHWA/FTA project which is regionally significant and 
increases single-occupant vehicle capacity (a new general purpose 
highway on a new location or adding general purpose lanes) may be found 
to conform, the State air agency must be consulted on how the emissions 
which the existing transportation plan and TIP's conformity 
determination estimates for the ``Action'' scenario (as required by 
Sec. Sec. 51.436 through 51.446) compare to the motor vehicle emissions 
budget in the implementation plan submission or the projected motor 
vehicle emissions budget in the implementation plan under development.
    (2) In the event of unresolved disputes on such project-level 
conformity determinations, the State air agency may escalate the issue 
to the Governor consistent with the procedure in Sec. 51.402(d), which 
applies for any State air agency comments on a conformity determination.
    (f) Redetermination of conformity of the existing transportation 
plan and TIP according to the transitional period criteria and 
procedures. (1) The redetermination of the conformity of the existing 
transportation plan and TIP according to transitional period criteria 
and procedures (as required by paragraphs (a)(1) and (d)(1) of this 
section) does not require new emissions analysis and does not have to 
satisfy the requirements of Sec. Sec. 51.412 and 51.414 if:
    (i) The control strategy implementation plan revision submitted to 
EPA uses the MPO's modeling of the existing transportation plan and TIP 
for its projections of motor vehicle emissions; and
    (ii) The control strategy implementation plan does not include any 
transportation projects which are not included in the transportation 
plan and TIP.
    (2) A redetermination of conformity as described in paragraph (f)(1) 
of this section is not considered a conformity determination for the 
purposes of Sec. 51.400(b)(4) or Sec. 51.400(c)(4) regarding the maximum 
intervals between conformity determinations. Conformity must be 
determined according to all the applicable criteria and procedures of 
Sec. 51.410 within three years of the last determination which did not 
rely on paragraph (f)(1) of this section.
    (g) Nonattainment areas which are not required to demonstrate 
reasonable further progress and attainment. If an area listed in 
Sec. 51.464 submits a control strategy implementation plan revision, the 
requirements of paragraphs (a) and (e) of this section apply. Because 
the areas listed in Sec. 51.464 are not required to demonstrate 
reasonable further progress and attainment the provisions of paragraphs 
(b) and (c) of this section do not apply to these areas.
    (h) Maintenance plans. If a control strategy implementation plan 
revision is not submitted to EPA but a maintenance plan required by 
Clean Air Act section 175A is submitted to EPA, the requirements of 
paragraph (a) or (d) of this section apply, with the maintenance plan 
submission treated as a ``control strategy implementation plan 
revision'' for the purposes of those requirements.

[58 FR 62216, Nov. 24, 1993, as amended at 60 FR 57185, Nov. 14, 1995]



Sec. 51.450  Requirements for adoption or approval of projects by recipients of funds designated under title 23 U.S.C. or the Federal Transit Act.

    No recipient of federal funds designated under title 23 U.S.C. or 
the Federal Transit Act shall adopt or approve a regionally significant 
highway or transit project, regardless of funding source, unless there 
is a currently conforming transportation plan and TIP consistent with 
the requirements of Sec. 51.420 and the requirements of one of the 
following paragraphs (a) through (e) of this section are met:
    (a) The project comes from a conforming plan and program consistent 
with the requirements of Sec. 51.422;
    (b) The project is included in the regional emissions analysis 
supporting

[[Page 862]]

the currently conforming TIP's conformity determination, even if the 
project is not strictly ``included'' in the TIP for the purposes of MPO 
project selection or endorsement, and the project's design concept and 
scope have not changed significantly from those which were included in 
the regional emissions analysis, or in a manner which would 
significantly impact use of the facility;
    (c) During the control strategy or maintenance period, the project 
is consistent with the motor vehicle emissions budget(s) in the 
applicable implementation plan consistent with the requirements of 
Sec. 51.432;
    (d) During Phase II of the interim period, the project contributes 
to emissions reductions or does not increase emissions consistent with 
the requirements of Sec. 51.440 (in ozone and CO nonattainment areas) or 
Sec. 51.446 (in PM10 and NO2 nonattainment areas); or
    (e) During the transitional period, the project satisfies the 
requirements of both paragraphs (c) and (d) of this section.



Sec. 51.452  Procedures for determining regional transportation-related emissions.

    (a) General requirements. (1) The regional emissions analysis for 
the transportation plan, TIP, or project not from a conforming plan and 
TIP shall include all regionally significant projects expected in the 
nonattainment or maintenance area, including FHWA/FTA projects proposed 
in the transportation plan and TIP and all other regionally significant 
projects which are disclosed to the MPO as required by Sec. 51.402. 
Projects which are not regionally significant are not required to be 
explicitly modeled, but VMT from such projects must be estimated in 
accordance with reasonable professional practice. The effects of TCMs 
and similar projects that are not regionally significant may also be 
estimated in accordance with reasonable professional practice.
    (2) The emissions analysis may not include for emissions reduction 
credit any TCMs which have been delayed beyond the scheduled date(s) 
until such time as implementation has been assured. If the TCM has been 
partially implemented and it can be demonstrated that it is providing 
quantifiable emission reduction benefits, the emissions analysis may 
include that emissions reduction credit.
    (3) Emissions reduction credit from projects, programs, or 
activities which require a regulation in order to be implemented may not 
be included in the emissions analysis unless the regulation is already 
adopted by the enforcing jurisdiction. Adopted regulations are required 
for demand management strategies for reducing emissions which are not 
specifically identified in the applicable implementation plan, and for 
control programs which are external to the transportation system itself, 
such as tailpipe or evaporative emission standards, limits on gasoline 
volatility, inspection and maintenance programs, and oxygenated or 
reformulated gasoline or diesel fuel. A regulatory program may also be 
considered to be adopted if an opt-in to a Federally enforced program 
has been approved by EPA, if EPA has promulgated the program (if the 
control program is a Federal responsibility, such as tailpipe 
standards), or if the Clean Air Act requires the program without need 
for individual State action and without any discretionary authority for 
EPA to set its stringency, delay its effective date, or not implement 
the program.
    (4) Notwithstanding paragraph (a)(3) of this section, during the 
transitional period, control measures or programs which are committed to 
in an implementation plan submission as described in Sec. Sec. 51.428 
through 51.432, but which has not received final EPA action in the form 
of a finding of incompleteness, approval, or disapproval may be assumed 
for emission reduction credit for the purpose of demonstrating that the 
requirements of Sec. Sec. 51.428 through 51.432 are satisfied.
    (5) A regional emissions analysis for the purpose of satisfying the 
requirements of Sec. Sec. 51.436 through 51.440 may account for the 
programs in paragraph (a)(4) of this section, but the same assumptions 
about these programs shall be used for both the ``Baseline'' and 
``Action'' scenarios.
    (6) Ambient temperatures shall be consistent with those used to 
establish the emissions budget in the applicable

[[Page 863]]

implementation plan. Factors other than temperatures, for example the 
fraction of travel in a hot stabilized engine mode, may be modified 
after interagency consultation according to Sec. 51.402 if the newer 
estimates incorporate additional or more geographically specific 
information or represent a logically estimated trend in such factors 
beyond the period considered in the applicable implementation plan.
    (b) Serious, severe, and extreme ozone nonattainment areas and 
serious carbon monoxide areas after January 1, 1995. Estimates of 
regional transportation-related emissions used to support conformity 
determinations must be made according to procedures which meet the 
requirements in paragraphs (b)(1) through (5) of this section.
    (1) A network-based transportation demand model or models relating 
travel demand and transportation system performance to land-use 
patterns, population demographics, employment, transportation 
infrastructure, and transportation policies must be used to estimate 
travel within the metropolitan planning area of the nonattainment area. 
Such a model shall possess the following attributes:
    (i) The modeling methods and the functional relationships used in 
the model(s) shall in all respects be in accordance with acceptable 
professional practice, and reasonable for purposes of emission 
estimation;
    (ii) The network-based model(s) must be validated against ground 
counts for a base year that is not more than 10 years prior to the date 
of the conformity determination. Land use, population, and other inputs 
must be based on the best available information and appropriate to the 
validation base year;
    (iii) For peak-hour or peak-period traffic assignments, a capacity 
sensitive assignment methodology must be used;
    (iv) Zone-to-zone travel times used to distribute trips between 
origin and destination pairs must be in reasonable agreement with the 
travel times which result from the process of assignment of trips to 
network links. Where use of transit currently is anticipated to be a 
significant factor in satisfying transportation demand, these times 
should also be used for modeling mode splits;
    (v) Free-flow speeds on network links shall be based on empirical 
observations;
    (vi) Peak and off-peak travel demand and travel times must be 
provided;
    (vii) Trip distribution and mode choice must be sensitive to 
pricing, where pricing is a significant factor, if the network model is 
capable of such determinations and the necessary information is 
available;
    (viii) The model(s) must utilize and document a logical 
correspondence between the assumed scenario of land development and use 
and the future transportation system for which emissions are being 
estimated. Reliance on a formal land-use model is not specifically 
required but is encouraged;
    (ix) A dependence of trip generation on the accessibility of 
destinations via the transportation system (including pricing) is 
strongly encouraged but not specifically required, unless the network 
model is capable of such determinations and the necessary information is 
available;
    (x) A dependence of regional economic and population growth on the 
accessibility of destinations via the transportation system is strongly 
encouraged but not specifically required, unless the network model is 
capable of such determinations and the necessary information is 
available; and
    (xi) Consideration of emissions increases from construction-related 
congestion is not specifically required.
    (2) Highway Performance Monitoring System (HPMS) estimates of 
vehicle miles traveled shall be considered the primary measure of 
vehicle miles traveled within the portion of the nonattainment or 
maintenance area and for the functional classes of roadways included in 
HPMS, for urban areas which are sampled on a separate urban area basis. 
A factor (or factors) shall be developed to reconcile and calibrate the 
network-based model estimates of vehicle miles traveled in the base year 
of its validation to the HPMS estimates for the same period, and these 
factors shall be applied to model estimates of future vehicle miles 
traveled. In this factoring process, consideration

[[Page 864]]

will be given to differences in the facility coverage of the HPMS and 
the modeled network description. Departure from these procedures is 
permitted with the concurrence of DOT and EPA.
    (3) Reasonable methods shall be used to estimate nonattainment area 
vehicle travel on off-network roadways within the urban transportation 
planning area, and on roadways outside the urban transportation planning 
area.
    (4) Reasonable methods in accordance with good practice must be used 
to estimate traffic speeds and delays in a manner that is sensitive to 
the estimated volume of travel on each roadway segment represented in 
the network model.
    (c) Areas which are not serious, severe, or extreme ozone 
nonattainment areas or serious carbon monoxide areas, or before January 
1, 1995. (1) Procedures which satisfy some or all of the requirements of 
paragraph (b) of this section shall be used in all areas not subject to 
paragraph (b) of this section in which those procedures have been the 
previous practice of the MPO.
    (2) Regional emissions may be estimated by methods which do not 
explicitly or comprehensively account for the influence of land use and 
transportation infrastructure on vehicle miles traveled and traffic 
speeds and congestion. Such methods must account for VMT growth by 
extrapolating historical VMT or projecting future VMT by considering 
growth in population and historical growth trends for vehicle miles 
travelled per person. These methods must also consider future economic 
activity, transit alternatives, and transportation system policies.
    (d) Projects not from a conforming plan and TIP in isolated rural 
nonattainment and maintenance areas. This paragraph applies to any 
nonattainment or maintenance area or any portion thereof which does not 
have a metropolitan transportation plan or TIP and whose projects are 
not part of the emissions analysis of any MPO's metropolitan 
transportation plan or TIP (because the nonattainment or maintenance 
area or portion thereof does not contain a metropolitan planning area or 
portion of a metropolitan planning area and is not part of a 
Metropolitan Statistical Area or Consolidated Metropolitan Statistical 
Area which is or contains a nonattainment or maintenance area).
    (1) Conformity demonstrations for projects in these areas may 
satisfy the requirements of Sec. Sec. 51.432, 51.440, and 51.446 with 
one regional emissions analysis which includes all the regionally 
significant projects in the nonattainment or maintenance area (or 
portion thereof).
    (2) The requirements of Sec. 51.432 shall be satisfied according to 
the procedures in Sec. 51.432(c), with references to the 
``transportation plan'' taken to mean the statewide transportation plan.
    (3) The requirements of Sec. Sec. 51.440 and 51.446 which reference 
``transportation plan'' or ``TIP'' shall be taken to mean those projects 
in the statewide transportation plan or statewide TIP which are in the 
nonattainment or maintenance area (or portion thereof).
    (4) The requirement of Sec. 51.450(b) shall be satisfied if:
    (i) The project is included in the regional emissions analysis which 
includes all regionally significant highway and transportation projects 
in the nonattainment or maintenance area (or portion thereof) and 
supports the most recent conformity determination made according to the 
requirements of Sec. Sec. 51.432, 51.440, or 51.446 (as modified by 
paragraphs (d)(2) and (d)(3) of this section), as appropriate for the 
time period and pollutant; and
    (ii) The project's design concept and scope have not changed 
significantly from those which were included in the regional emissions 
analysis, or in a manner which would significantly impact use of the 
facility.
    (e) PM10 from construction-related fugitive dust. (1) For areas 
in which the implementation plan does not identify construction-related 
fugitive PM10 as a contributor to the nonattainment problem, the 
fugitive PM10  emissions associated with highway and transit 
project construction are not required to be considered in the regional 
emissions analysis.
    (2) In PM10 nonattainment and maintenance areas with 
implementation plans which identify construction-related fugitive 
PM10 as a contributor to the nonattainment problem, the regional 
PM10 emissions analysis shall

[[Page 865]]

consider construction-related fugitive PM10 and shall account for 
the level of construction activity, the fugitive PM10 control 
measures in the applicable implementation plan, and the dust-producing 
capacity of the proposed activities.

[58 FR 62216, Nov. 24, 1993, as amended at 60 FR 57186, Nov. 14, 1995]



Sec. 51.454  Procedures for determining localized CO and PM10 concentrations (hot-spot analysis).

    (a) In the following cases, CO hot-spot analyses must be based on 
the applicable air quality models, data bases, and other requirements 
specified in 40 CFR part 51, appendix W (``Guideline on Air Quality 
Models (Revised)'' (1988), supplement A (1987) and supplement B (1993), 
EPA publication no. 450/2-78-027R), unless, after the interagency 
consultation process described in Sec. 51.402 and with the approval of 
the EPA Regional Administrator, these models, data bases, and other 
requirements are determined to be inappropriate:
    (1) For projects in or affecting locations, areas, or categories of 
sites which are identified in the applicable implementation plan as 
sites of current violation or possible current violation;
    (2) For those intersections at Level-of-Service D, E, or F, or those 
that will change to Level-of-Service D, E, or F because of increased 
traffic volumes related to a new project in the vicinity;
    (3) For any project involving or affecting any of the intersections 
which the applicable implementation plan identifies as the top three 
intersections in the nonattainment or maintenance area based on the 
highest traffic volumes;
    (4) For any project involving or affecting any of the intersections 
which the applicable implementation plan identifies as the top three 
intersections in the nonattainment or maintenance area based on the 
worst Level-of-Service; and
    (5) Where use of the ``Guideline'' models is practicable and 
reasonable given the potential for violations.
    (b) In cases other than those described in paragraph (a) of this 
section, other quantitative methods may be used if they represent 
reasonable and common professional practice.
    (c) CO hot-spot analyses must include the entire project, and may be 
performed only after the major design features which will significantly 
impact CO concentrations have been identified. The background 
concentration can be estimated using the ratio of future to current 
traffic multiplied by the ratio of future to current emission factors.
    (d) PM10 hot-spot analysis must be performed for projects which 
are located at sites at which violations have been verified by 
monitoring, and at sites which have essentially identical vehicle and 
roadway emission and dispersion characteristics (including sites near 
one at which a violation has been monitored). The projects which require 
PM10 hot-spot analysis shall be determined through the interagency 
consultation process required in Sec. 51.402. In PM10 nonattainment 
and maintenance areas, new or expanded bus and rail terminals and 
transfer points which increase the number of diesel vehicles 
congregating at a single location require hot-spot analysis. DOT may 
choose to make a categorical conformity determination on bus and rail 
terminals or transfer points based on appropriate modeling of various 
terminal sizes, configurations, and activity levels. The requirements of 
this paragraph for quantitative hot-spot analysis will not take effect 
until EPA releases modeling guidance on this subject and announces in 
the Federal Register that these requirements are in effect.
    (e) Hot-spot analysis assumptions must be consistent with those in 
the regional emissions analysis for those inputs which are required for 
both analyses.
    (f) PM10 or CO mitigation or control measures shall be assumed 
in the hot-spot analysis only where there are written commitments from 
the project sponsor and/or operator to the implementation of such 
measures, as required by Sec. 51.458(a).
    (g) CO and PM10 hot-spot analyses are not required to consider 
construction-related activities which cause temporary increases in 
emissions. Each site which is affected by construction-related 
activities shall be considered

[[Page 866]]

separately, using established ``Guideline'' methods. Temporary increases 
are defined as those which occur only during the construction phase and 
last five years or less at any individual site.



Sec. 51.456  Using the motor vehicle emissions budget in the applicable implementation plan (or implementation plan submission).

    (a) In interpreting an applicable implementation plan (or 
implementation plan submission) with respect to its motor vehicle 
emissions budget(s), the MPO and DOT may not infer additions to the 
budget(s) that are not explicitly intended by the implementation plan 
(or submission). Unless the implementation plan explicitly quantifies 
the amount by which motor vehicle emissions could be higher while still 
allowing a demonstration of compliance with the milestone, attainment, 
or maintenance requirement and explicitly states an intent that some or 
all of this additional amount should be available to the MPO and DOT in 
the emission budget for conformity purposes, the MPO may not interpret 
the budget to be higher than the implementation plan's estimate of 
future emissions. This applies in particular to applicable 
implementation plans (or submissions) which demonstrate that after 
implementation of control measures in the implementation plan:
    (1) Emissions from all sources will be less than the total emissions 
that would be consistent with a required demonstration of an emissions 
reduction milestone;
    (2) Emissions from all sources will result in achieving attainment 
prior to the attainment deadline and/or ambient concentrations in the 
attainment deadline year will be lower than needed to demonstrate 
attainment; or
    (3) Emissions will be lower than needed to provide for continued 
maintenance.
    (b) If an applicable implementation plan submitted before November 
24, 1993 demonstrates that emissions from all sources will be less than 
the total emissions that would be consistent with attainment and 
quantifies that ``safety margin,'' the State may submit a SIP revision 
which assigns some or all of this safety margin to highway and transit 
mobile sources for the purposes of conformity. Such a SIP revision, once 
it is endorsed by the Governor and has been subject to a public hearing, 
may be used for the purposes of transportation conformity before it is 
approved by EPA.
    (c) A conformity demonstration shall not trade emissions among 
budgets which the applicable implementation plan (or implementation plan 
submission) allocates for different pollutants or precursors, or among 
budgets allocated to motor vehicles and other sources, without a SIP 
revision or a SIP which establishes mechanisms for such trades.
    (d) If the applicable implementation plan (or implementation plan 
submission) estimates future emissions by geographic subarea of the 
nonattainment area, the MPO and DOT are not required to consider this to 
establish subarea budgets, unless the applicable implementation plan (or 
implementation plan submission) explicitly indicates an intent to create 
such subarea budgets for the purposes of conformity.
    (e) If a nonattainment area includes more than one MPO, the SIP may 
establish motor vehicle emissions budgets for each MPO, or else the MPOs 
must collectively make a conformity determination for the entire 
nonattainment area.



Sec. 51.458  Enforceability of design concept and scope and project-level mitigation and control measures.

    (a) Prior to determining that a transportation project is in 
conformity, the MPO, other recipient of funds designated under title 23 
U.S.C. or the Federal Transit Act, FHWA, or FTA must obtain from the 
project sponsor and/or operator written commitments to implement in the 
construction of the project and operation of the resulting facility or 
service any project-level mitigation or control measures which are 
identified as conditions for NEPA process completion with respect to 
local PM10 or CO impacts. Before making conformity determinations 
written commitments must also be obtained for project-level mitigation 
or control measures which are conditions for making conformity 
determinations for

[[Page 867]]

a transportation plan or TIP and included in the project design concept 
and scope which is used in the regional emissions analysis required by 
Sec. Sec. 51.428 through 51.432 and Sec. Sec. 51.436 through 51.440 or 
used in the project-level hot-spot analysis required by Sec. Sec. 51.424 
and 51.434.
    (b) Project sponsors voluntarily committing to mitigation measures 
to facilitate positive conformity determinations must comply with the 
obligations of such commitments.
    (c) The implementation plan revision required in Sec. 51.396 shall 
provide that written commitments to mitigation measures must be obtained 
prior to a positive conformity determination, and that project sponsors 
must comply with such commitments.
    (d) During the control strategy and maintenance periods, if the MPO 
or project sponsor believes the mitigation or control measure is no 
longer necessary for conformity, the project sponsor or operator may be 
relieved of its obligation to implement the mitigation or control 
measure if it can demonstrate that the requirements of Sec. Sec. 51.424, 
51.428, and 51.430 are satisfied without the mitigation or control 
measure, and so notifies the agencies involved in the interagency 
consultation process required under Sec. 51.402. The MPO and DOT must 
confirm that the transportation plan and TIP still satisfy the 
requirements of Sec. Sec. 51.428 and 51.430 and that the project still 
satisfies the requirements of Sec. 51.424, and therefore that the 
conformity determinations for the transportation plan, TIP, and project 
are still valid.



Sec. 51.460  Exempt projects.

    Notwithstanding the other requirements of this subpart, highway and 
transit projects of the types listed in Table 2 are exempt from the 
requirement that a conformity determination be made. Such projects may 
proceed toward implementation even in the absence of a conforming 
transportation plan and TIP. A particular action of the type listed in 
Table 2 is not exempt if the MPO in consultation with other agencies 
(see Sec. 51.402(c)(1)(iii)), the EPA, and the FHWA (in the case of a 
highway project) or the FTA (in the case of a transit project) concur 
that it has potentially adverse emissions impacts for any reason. States 
and MPOs must ensure that exempt projects do not interfere with TCM 
implementation.

                                            Table 2.--Exempt Projects                                           
                                                     Safety                                                     
                                                                                                                
Railroad/highway crossing.                                                                                      
Hazard elimination program.                                                                                     
Safer non-Federal-aid system roads.                                                                             
Shoulder improvements.                                                                                          
Increasing sight distance.                                                                                      
Safety improvement program.                                                                                     
Traffic control devices and operating assistance other than signalization projects.                             
Railroad/highway crossing warning devices.                                                                      
Guardrails, median barriers, crash cushions.                                                                    
Pavement resurfacing and/or rehabilitation.                                                                     
Pavement marking demonstration.                                                                                 
Emergency relief (23 U.S.C. 125).                                                                               
Fencing.                                                                                                        
Skid treatments.                                                                                                
Safety roadside rest areas.                                                                                     
Adding medians.                                                                                                 
Truck climbing lanes outside the urbanized area.                                                                
Lighting improvements.                                                                                          
Widening narrow pavements or reconstructing bridges (no additional travel lanes).                               
Emergency truck pullovers.                                                                                      
                                                                                                                
                                                  Mass Transit                                                  
                                                                                                                
Operating assistance to transit agencies.                                                                       

[[Page 868]]

                                                                                                                
Purchase of support vehicles.                                                                                   
Rehabilitation of transit vehicles.\1\                                                                          
Purchase of office, shop, and operating equipment for existing facilities.                                      
Purchase of operating equipment for vehicles (e.g., radios, fareboxes, lifts, etc.).                            
Construction or renovation of power, signal, and communications systems.                                        
Construction of small passenger shelters and information kiosks.                                                
Reconstruction or renovation of transit buildings and structures (e.g., rail or bus buildings, storage and      
 maintenance facilities, stations, terminals, and ancillary structures).                                        
Rehabilitation or reconstruction of track structures, track, and track bed in existing rights-of-way.           
Purchase of new buses and rail cars to replace existing vehicles or for minor expansions of the fleet.\1\       
Construction of new bus or rail storage/maintenance facilities categorically excluded in 23 CFR part 771.       
                                                                                                                
                                                   Air Quality                                                  
                                                                                                                
Continuation of ride-sharing and van-pooling promotion activities at current levels.                            
Bicycle and pedestrian facilities.                                                                              
                                                                                                                
                                                      Other                                                     
                                                                                                                
Specific activities which do not involve or lead directly to construction, such as:                             
    Planning and technical studies.                                                                             
    Grants for training and research programs.                                                                  
    Planning activities conducted pursuant to titles 23 and 49 U.S.C.                                           
    Federal-aid systems revisions.                                                                              
Engineering to assess social, economic, and environmental effects of the proposed action or alternatives to that
 action.                                                                                                        
Noise attenuation.                                                                                              
Advance land acquisitions (23 CFR part 712 or 23 CFR part 771).                                                 
Acquisition of scenic easements.                                                                                
Plantings, landscaping, etc.                                                                                    
Sign removal.                                                                                                   
Directional and informational signs.                                                                            
Transportation enhancement activities (except rehabilitation and operation of historic transportation buildings,
 structures, or facilities).                                                                                    
Repair of damage caused by natural disasters, civil unrest, or terrorist acts, except projects involving        
 substantial functional, locational or capacity changes.                                                        
----------------------------------------------------------------------------------------------------------------
\1\ PM10 nonattainment or maintenance areas, such projects are exempt only if they are in compliance with       
  control measures in the applicable implementation plan.                                                       



Sec. 51.462  Projects exempt from regional emissions analyses.

    Notwithstanding the other requirements of this subpart, highway and 
transit projects of the types listed in Table 3 are exempt from regional 
emissions analysis requirements. The local effects of these projects 
with respect to CO or PM10 concentrations must be considered to 
determine if a hot-spot analysis is required prior to making a project-
level conformity determination. These projects may then proceed to the 
project development process even in the absence of a conforming 
transportation plan and TIP. A particular action of the type listed in 
Table 3 is not exempt from regional emissions analysis if the MPO in 
consultation with other agencies (see Sec. 51.402(c)(1)(iii)), the EPA, 
and the FHWA (in the case of a highway project) or the FTA (in the case 
of a transit project) concur that it has potential regional impacts for 
any reason.

       Table 3.--Projects Exempt From Regional Emissions Analyses       
                                                                        
                                                                        
-------------------------------------------------------------------------
Intersection channelization projects.                                   
Intersection signalization projects at individual intersections.        
Interchange reconfiguration projects.                                   
Changes in vertical and horizontal alignment.                           

[[Page 869]]

                                                                        
Truck size and weight inspection stations.                              
Bus terminals and transfer points.                                      
------------------------------------------------------------------------



Sec. 51.464  Special provisions for nonattainment areas which are not required to demonstrate reasonable further progress and attainment.

    (a) Application. This section applies in the following areas:
    (1) Rural transport ozone nonattainment areas;
    (2) Marginal ozone areas;
    (3) Submarginal ozone areas;
    (4) Transitional ozone areas;
    (5) Incomplete data ozone areas;
    (6) Moderate CO areas with a design value of 12.7 ppm or less; and
    (7) Not classified CO areas.
    (b) Default conformity procedures. The criteria and procedures in 
Sec. Sec. 51.436 through 51.440 will remain in effect throughout the 
control strategy period for transportation plans, TIPs, and projects 
(not from a conforming plan and TIP) in lieu of the procedures in 
Sec. Sec. 51.428 through 51.432, except as otherwise provided in 
paragraph (c) of this section.
    (c) Optional conformity procedures. The State or MPO may voluntarily 
develop an attainment demonstration and corresponding motor vehicle 
emissions budget like those required in areas with higher nonattainment 
classifications. In this case, the State must submit an implementation 
plan revision which contains that budget and attainment demonstration. 
Once EPA has approved this implementation plan revision, the procedures 
in Sec. Sec. 51.428 through 51.432 apply in lieu of the procedures in 
Sec. Sec. 51.436 through 51.440



                 Subpart U--Economic Incentive Programs

    Source: 59 FR 16710, Apr. 7, 1994, unless otherwise noted.



Sec. 51.490  Applicability.

    (a) The rules in this subpart apply to any statutory economic 
incentive program (EIP) submitted to the EPA as an implementation plan 
revision to comply with sections 182(g)(3), 182(g)(5), 187(d)(3), or 
187(g) of the Act. Such programs may be submitted by any authorized 
governmental organization, including States, local governments, and 
Indian governing bodies.
    (b) The provisions contained in these rules, except as explicitly 
exempted, shall also serve as the EPA's policy guidance on discretionary 
EIP's submitted as implementation plan revisions for any purpose other 
than to comply with the statutory requirements specified in paragraph 
(a) of this section.



Sec. 51.491  Definitions.

    Act means the Clean Air Act as amended November 15, 1990.
    Actual emissions means the emissions of a pollutant from an affected 
source determined by taking into account actual emission rates 
associated with normal source operation and actual or representative 
production rates (i.e., capacity utilization and hours of operation).
    Affected source means any stationary, area, or mobile source of a 
criteria pollutant(s) to which an EIP applies. This term applies to 
sources explicitly included at the start of a program, as well as 
sources that voluntarily enter (i.e., opt into) the program.
    Allowable emissions means the emissions of a pollutant from an 
affected source determined by taking into account the most stringent of 
all applicable SIP emissions limits and the level of emissions 
consistent with source compliance with all Federal requirements related 
to attainment and maintenance of the NAAQS and the production rate 
associated with the maximum rated capacity and hours of operation 
(unless the source is subject to federally enforceable limits which 
restrict the operating rate, or hours of operation, or both).
    Area sources means stationary and nonroad sources that are too small 
and/or too numerous to be individually included in a stationary source 
emissions inventory.
    Attainment area means any area of the country designated or 
redesignated by the EPA at 40 CFR part 81 in accordance with section 
107(d) as having attained the relevant NAAQS for a given criteria 
pollutant. An area can be an

[[Page 870]]

attainment area for some pollutants and a nonattainment area for other 
pollutants.
    Attainment demonstration means the requirement in section 
182(b)(1)(A) of the Act to demonstrate that the specific annual 
emissions reductions included in a SIP are sufficient to attain the 
primary NAAQS by the date applicable to the area.
    Directionally-sound strategies are strategies for which adequate 
procedures to quantify emissions reductions or specify a program 
baseline are not defined as part of the EIP.
    Discretionary economic incentive program means any EIP submitted to 
the EPA as an implementation plan revision for purposes other than to 
comply with the statutory requirements of sections 182(g)(3), 182(g)(5), 
187(d)(3), or 187(g) of the Act.
    Economic incentive program (EIP) means a program which may include 
State established emission fees or a system of marketable permits, or a 
system of State fees on sale or manufacture of products the use of which 
contributes to O3 formation, or any combination of the foregoing or 
other similar measures, as well as incentives and requirements to reduce 
vehicle emissions and vehicle miles traveled in the area, including any 
of the transportation control measures identified in section 108(f). 
Such programs may be directed toward stationary, area, and/or mobile 
sources, to achieve emissions reductions milestones, to attain and 
maintain ambient air quality standards, and/or to provide more flexible, 
lower-cost approaches to meeting environmental goals. Such programs are 
categorized into the following three categories: Emission-limiting, 
market-response, and directionally-sound strategies.
    Emission-limiting strategies are strategies that directly specify 
limits on total mass emissions, emission-related parameters (e.g., 
emission rates per unit of production, product content limits), or 
levels of emissions reductions relative to a program baseline that are 
required to be met by affected sources, while providing flexibility to 
sources to reduce the cost of meeting program requirements.
    Indian governing body means the governing body of any tribe, band, 
or group of Indians subject to the jurisdiction of the U.S. and 
recognized by the U.S. as possessing power of self-government.
    Maintenance plan means an implementation plan for an area for which 
the State is currently seeking designation or has previously sought 
redesignation to attainment, under section 107(d) of the Act, which 
provides for the continued attainment of the NAAQS.
    Market-response strategies are strategies that create one or more 
incentives for affected sources to reduce emissions, without directly 
specifying limits on emissions or emission-related parameters that 
individual sources or even all sources in the aggregate are required to 
meet.
    Milestones means the reductions in emissions required to be achieved 
pursuant to section 182(b)(1) and the corresponding requirements in 
section 182(c)(2) (B) and (C), 182(d), and 182(e) of the Act for O3 
nonattainment areas, as well as the reduction in emissions of CO 
equivalent to the total of the specified annual emissions reductions 
required by December 31, 1995, pursuant to section 187(d)(1).
    Mobile sources means on-road (highway) vehicles (e.g., automobiles, 
trucks and motorcycles) and nonroad vehicles (e.g., trains, airplanes, 
agricultural equipment, industrial equipment, construction vehicles, 
off-road motorcycles, and marine vessels).
    National ambient air quality standard (NAAQS) means a standard set 
by the EPA at 40 CFR part 50 under section 109 of the Act.
    Nonattainment area means any area of the country designated by the 
EPA at 40 CFR part 81 in accordance with section 107(d) of the Act as 
nonattainment for one or more criteria pollutants. An area could be a 
nonattainment area for some pollutants and an attainment area for other 
pollutants.
    Nondiscriminatory means that a program in one State does not result 
in discriminatory effects on other States or sources outside the State 
with regard to interstate commerce.
    Program baseline means the level of emissions, or emission-related 
parameter(s), for each affected source

[[Page 871]]

or group of affected sources, from which program results (e.g., 
quantifiable emissions reductions) shall be determined.
    Program uncertainty factor means a factor applied to discount the 
amount of emissions reductions credited in an implementation plan 
demonstration to account for any strategy-specific uncertainties in an 
EIP.
    Reasonable further progress (RFP) plan means any incremental 
emissions reductions required by the CAA (e.g., section 182(b)) and 
approved by the EPA as meeting these requirements.
    Replicable refers to methods which are sufficiently unambiguous such 
that the same or equivalent results would be obtained by the application 
of the methods by different users.
    RFP baseline means the total of actual volatile organic compounds or 
nitrogen oxides emissions from all anthropogenic sources in an O3 
nonattainment area during the calendar year 1990 (net of growth and 
adjusted pursuant to section 182(b)(1)(B) of the Act), expressed as 
typical O3 season, weekday emissions.
    Rule compliance factor means a factor applied to discount the amount 
of emissions reductions credited in an implementation plan demonstration 
to account for less-than-complete compliance by the affected sources in 
an EIP.
    Shortfall means the difference between the amount of emissions 
reductions credited in an implementation plan for a particular EIP and 
those that are actually achieved by that EIP, as determined through an 
approved reconciliation process.
    State means State, local government, or Indian-governing body.
    State implementation plan (SIP) means a plan developed by an 
authorized governing body, including States, local governments, and 
Indian-governing bodies, in a nonattainment area, as required under 
titles I & II of the Clean Air Act, and approved by the EPA as meeting 
these same requirements.
    Stationary source means any building, structure, facility or 
installation, other than an area or mobile source, which emits or may 
emit any criteria air pollutant or precursor subject to regulation under 
the Act.
    Statutory economic incentive program means any EIP submitted to the 
EPA as an implementation plan revision to comply with sections 
182(g)(3), 182(g)(5), 187(d)(3), or 187(g) of the Act.
    Surplus means, at a minimum, emissions reductions in excess of an 
established program baseline which are not required by SIP requirements 
or State regulations, relied upon in any applicable attainment plan or 
demonstration, or credited in any RFP or milestone demonstration, so as 
to prevent the double-counting of emissions reductions.
    Transportation control measure (TCM) is any measure of the types 
listed in section 108(F) of the Act, or any measure in an applicable 
implementation plan directed toward reducing emissions of air pollutants 
from transportation sources by a reduction in vehicle use or changes in 
traffic conditions.



Sec. 51.492  State program election and submittal.

    (a) Extreme O3 nonattainment areas. (1) A State or authorized 
governing body for any extreme O3 nonattainment area shall submit a 
plan revision to implement an EIP, in accordance with the requirements 
of this part, pursuant to section 182(g)(5) of the Act, if:
    (i) A required milestone compliance demonstration is not submitted 
within the required period.
    (ii) The Administrator determines that the area has not met any 
applicable milestone.
    (2) The plan revision in paragraph (a)(1) of this section shall be 
submitted within 9 months after such failure or determination, and shall 
be sufficient, in combination with other elements of the SIP, to achieve 
the next milestone.
    (b) Serious CO nonattainment areas. (1) A State or authorized 
governing body for any serious CO nonattainment area shall submit a plan 
revision to implement an EIP, in accordance with the requirements of 
this part, if:
    (i) A milestone demonstration is not submitted within the required 
period, pursuant to section 187(d) of the Act.
    (ii) The Administrator notifies the State, pursuant to section 
187(d) of the Act, that a milestone has not been met.

[[Page 872]]

    (iii) The Administrator determines, pursuant to section 186(b)(2) of 
the Act that the NAAQS for CO has not been attained by the applicable 
date for that area. Such revision shall be submitted within 9 months 
after such failure or determination.
    (2) Submittals made pursuant to paragraphs (b)(1) (i) and (ii) of 
this section shall be sufficient, together with a transportation control 
program, to achieve the specific annual reductions in CO emissions set 
forth in the implementation plan by the attainment date. Submittals made 
pursuant to paragraph (b)(1)(iii) of this section shall be adequate, in 
combination with other elements of the revised plan, to reduce the total 
tonnage of emissions of CO in the area by at least 5 percent per year in 
each year after approval of the plan revision and before attainment of 
the NAAQS for CO.
    (c) Serious and severe O3 nonattainment areas. If a State, for 
any serious or severe O3 nonattainment area, elects to implement an 
EIP in the circumstances set out in section 182(g)(3) of the Act, the 
State shall submit a plan revision to implement the program in 
accordance with the requirements of this part. If the option to 
implement an EIP is elected, a plan revision shall be submitted within 
12 months after the date required for election, and shall be sufficient, 
in combination with other elements of the SIP, to achieve the next 
milestone.
    (d) Any nonattainment or attainment area. Any State may at any time 
submit a plan or plan revision to implement a discretionary EIP, in 
accordance with the requirements of this part, pursuant to sections 
110(a)(2)(A) and 172(c)(6) and other applicable provisions of the Act 
concerning SIP submittals. The plan revision shall not interfere with 
any applicable requirement concerning attainment and RFP, or any other 
applicable requirements of the Act.



Sec. 51.493  State program requirements.

    Economic incentive programs shall be State and federally 
enforceable, nondiscriminatory, and consistent with the timely 
attainment of NAAQS, all applicable RFP and visibility requirements, 
applicable PSD increments, and all other applicable requirements of the 
Act. Programs in nonattainment areas for which credit is taken in 
attainment and RFP demonstrations shall be designed to ensure that the 
effects of the program are quantifiable and permanent over the entire 
duration of the program, and that the credit taken is limited to that 
which is surplus. Statutory programs shall be designed to result in 
quantifiable, significant reductions in actual emissions. The EIP's 
shall include the following elements, as applicable:
    (a) Statement of goals and rationale. This element shall include a 
clear statement as to the environmental problem being addressed, the 
intended environmental and economic goals of the program, and the 
rationale relating the incentive-based strategy to the program goals.
    (1) The statement of goals must include the goal that the program 
will benefit both the environment and the regulated entities. The 
program shall be designed so as to meaningfully meet this goal either 
directly, through increased or more rapid emissions reductions beyond 
those that would be achieved through a traditional regulatory program, 
or, alternatively, through other approaches that will result in real 
environmental benefits. Such alternative approaches include, but are not 
limited to, improved administrative mechanisms, reduced administrative 
burdens on regulatory agencies, improved emissions inventories, and the 
adoption of emission caps which over time constrain or reduce growth-
related emissions beyond traditional regulatory approaches.
    (2) The incentive-based strategy shall be described in terms of one 
of the following three strategies:
    (i) Emission-limiting strategies, which directly specify limits on 
total mass emissions, emission-related parameters (e.g., emission rates 
per unit of production, product content limits), or levels of emissions 
reductions relative to a program baseline that affected sources are 
required to meet, while providing flexibility to sources to reduce the 
cost of meeting program requirements.
    (ii) Market-response strategies, which create one or more incentives 
for

[[Page 873]]

affected sources to reduce emissions, without directly specifying limits 
on emissions or emission-related parameters that individual sources or 
even all sources in the aggregate are required to meet.
    (iii) Directionally-sound strategies, for which adequate procedures 
to quantify emissions reductions are not defined.
    (b) Program scope. (1) This element shall contain a clear definition 
of the sources affected by the program. This definition shall address:
    (i) The extent to which the program is mandatory or voluntary for 
the affected sources.
    (ii) Provisions, if any, by which sources that are not required to 
be in the program may voluntarily enter the program.
    (iii) Provisions, if any, by which sources covered by the program 
may voluntarily leave the program.
    (2) Any opt-in or opt-out provisions in paragraph (b)(1) of this 
section shall be designed to provide mechanisms by which such program 
changes are reflected in an area's attainment and RFP demonstrations, 
thus ensuring that there will not be an increase in the emissions 
inventory for the area caused by voluntary entry or exit from the 
program.
    (3) The program scope shall be defined so as not to interfere with 
any other Federal requirements which apply to the affected sources.
    (c) Program baseline. A program baseline shall be defined as a basis 
for projecting program results and, if applicable, for initializing the 
incentive mechanism (e.g., for marketable permits programs). The program 
baseline shall be consistent with, and adequately reflected in, the 
assumptions and inputs used to develop an area's RFP plans and 
attainment and maintenance demonstrations, as applicable. The State 
shall provide sufficient supporting information from the areawide 
emissions inventory and other sources to justify the baseline used in 
the EIP.
    (1) For EIP's submitted in conjunction with, or subsequent to, the 
submission of any areawide progress plan due at the time of EIP 
submission (e.g., the 15 percent RFP plan and/or subsequent 3 percent 
plans) or an attainment demonstration, a State may exercise flexibility 
in setting a program baseline provided the program baseline is 
consistent with and reflected in all relevant progress plans or 
attainment demonstration. A flexible program baseline may be based on 
the lower of actual, allowable, or some other intermediate or lower 
level of emissions. For any EIP submitted prior to the submittal of an 
attainment demonstration, the State shall include the following with its 
EIP submittal:
    (i) A commitment that its subsequent attainment demonstration and 
all future progress plans, if applicable, will be consistent with the 
EIP baseline.
    (ii) A discussion of how the baseline will be integrated into the 
subsequent attainment demonstration, taking into account the potential 
that credit issued prior to the attainment demonstration may no longer 
be surplus relative to the attainment demonstration.
    (2) Except as provided for in paragraph (c)(4) of this section, for 
EIP's submitted during a time period when any progress plans are 
required but not yet submitted (e.g., the 15 percent RFP plan and/or the 
subsequent 3 percent plans), the program baseline shall be based on the 
lower-of-actual-or-allowable emissions. In such cases, actual emissions 
shall be taken from the most appropriate inventory, such as the 1990 
actual emission inventory (due for submission in November 1992), and 
allowable emissions are the lower of SIP-allowable emissions or the 
level of emissions consistent with source compliance with all Federal 
requirements related to attainment and maintenance of the NAAQS.
    (3) For EIP's that are designed to implement new and/or previously 
existing RACT requirements through emissions trading and are submitted 
in conjunction with, or subsequent to, the submission of an associated 
RACT rule, a State may exercise flexibility in setting a program 
baseline provided the program baseline is consistent with and reflected 
in the associated RACT rule, and any applicable progress plans and 
attainment demonstrations.
    (4) For EIP's that are designed to implement new and/or previously 
existing

[[Page 874]]

RACT requirements through emissions trading and are submitted prior to 
the submission of a required RFP plan or attainment demonstration, 
States also have flexibility in determining the program baseline, 
provided the following conditions are met.
    (i) For EIP's that implement new RACT requirements for previously 
unregulated source categories through emissions trading, the new RACT 
requirements must reflect, to the extent practicable, increased 
emissions reductions beyond those that would be achieved through a 
traditional RACT program.
    (ii) For EIP's that impose new RACT requirements on previously 
unregulated sources in a previously regulated source category (e.g., 
RACT ``catch-up'' programs), the new incentive-based RACT rule shall, in 
the aggregate, yield reductions in actual emissions at least equivalent 
to that which would result from source-by-source compliance with the 
existing RACT limit for that source category.
    (5) A program baseline for individual sources shall, as appropriate, 
be contained or incorporated by reference in federally-enforceable 
operating permits or a federally-enforceable SIP.
    (6) An initial baseline for TCM's shall be calculated by 
establishing the preexisting conditions in the areas of interest. This 
may include establishing to what extent TCM's have already been 
implemented, what average vehicle occupancy (AVO) levels have been 
achieved during peak and off-peak periods, what types of trips occur in 
the region, and what mode choices have been made in making these trips. 
In addition, the extent to which travel options are currently available 
within the region of interest shall be determined. These travel options 
may include, but are not limited to, the degree of dispersion of transit 
services, the current ridership rates, and the availability and usage of 
parking facilities.
    (7) Information used in setting a program baseline shall be of 
sufficient quality to provide for at least as high a degree of 
accountability as currently exists for traditional control requirements 
for the categories of sources affected by the program.
    (d) Replicable emission quantification methods. This program 
element, for programs other than those which are categorized as 
directionally-sound, shall include credible, workable, and replicable 
methods for projecting program results from affected sources and, where 
necessary, for quantifying emissions from individual sources subject to 
the EIP. Such methods, if used to determine credit taken in attainment, 
RFP, and maintenance demonstrations, as applicable, shall yield results 
which can be shown to have a level of certainty comparable to that for 
source-specific standards and traditional methods of control strategy 
development. Such methods include, as applicable, the following 
elements:
    (1) Specification of quantification methods. This element shall 
specify the approach or the combination or range of approaches that are 
acceptable for each source category affected by the program. Acceptable 
approaches may include, but are not limited to:
    (i) Test methods for the direct measurement of emissions, either 
continuously or periodically.
    (ii) Calculation equations which are a function of process or 
control system parameters, ambient conditions, activity levels, and/or 
throughput or production rates.
    (iii) Mass balance calculations which are a function of inventory, 
usage, and/or disposal records.
    (iv) EPA-approved emission factors, where appropriate and adequate.
    (v) Any combination of these approaches.
    (2) Specification of averaging times.
    (i) The averaging time for any specified mass emissions caps or 
emission rate limits shall be consistent with: attaining and maintaining 
all applicable NAAQS, meeting RFP requirements, and ensuring equivalency 
with all applicable RACT requirements.
    (ii) If the averaging time for any specified VOC or NOX mass 
emissions caps or emission rate limits for stationary sources (and for 
other sources, as appropriate) is longer than 24 hours, the State shall 
provide, in support of the SIP submittal, a statistical showing that the 
specified averaging time is consistent with attaining the O3

[[Page 875]]

NAAQS and satisfying RFP requirements, as applicable, on the basis of 
typical summer day emissions; and, if applicable, a statistical showing 
that the longer averaging time will produce emissions reductions that 
are equivalent on a daily basis to source-specific RACT requirements.
    (3) Accounting for shutdowns and production curtailments. This 
accounting shall include provisions which ensure that:
    (i) Emissions reductions associated with shutdowns and production 
curtailments are not double-counted in attainment or RFP demonstrations.
    (ii) Any resultant ``shifting demand'' which increases emissions 
from other sources is accounted for in such demonstrations.
    (4) Accounting for batch, seasonal, and cyclical operations. This 
accounting shall include provisions which ensure that the approaches 
used to account for such variable operations are consistent with 
attainment and RFP plans.
    (5) Accounting for travel mode choice options, as appropriate, for 
TCM's. This accounting shall consider the factors or attributes of the 
different forms of travel modes (e.g., bus, ridesharing) which determine 
which type of travel an individual will choose. Such factors include, 
but are not limited to, time, cost, reliability, and convenience of the 
mode.
    (e) Source requirements. This program element shall include all 
source-specific requirements that constitute compliance with the 
program. Such requirements shall be appropriate, readily ascertainable, 
and State and federally enforceable, including, as applicable:
    (1) Emission limits.
    (i) For programs that impose limits on total mass emissions, 
emission rates, or other emission-related parameter(s), there must be an 
appropriate tracking system so that a facility's limits are readily 
ascertainable at all times.
    (ii) For emission-limiting EIP's that authorize RACT sources to meet 
their RACT requirements through RACT/non-RACT trading, such trading 
shall result in an exceptional environmental benefit. Demonstration of 
an exceptional environmental benefit shall require either the use of the 
statutory offset ratios for nonattainment areas as the determinant of 
the amount of emissions reductions that would be required from non-RACT 
sources generating credits for RACT sources or, alternatively, a trading 
ratio of 1.1 to 1, at a minimum, may be authorized, provided exceptional 
environmental benefits are otherwise demonstrated.
    (2) Monitoring, recordkeeping, and reporting requirements.
    (i) An EIP (or the SIP as a whole) must contain test methods and, 
where necessary, emission quantification methodologies, appropriate to 
the emission limits established in the SIP. EIP sources must be subject 
to clearly specified MRR requirements appropriate to the test methods 
and any applicable quantification methodologies, and consistent with the 
EPA's title V rules, where applicable. Such MRR requirements shall 
provide sufficiently reliable and timely information to determine 
compliance with emission limits and other applicable strategy-specific 
requirements, and to provide for State and Federal enforceability of 
such limits and requirements. Methods for MRR may include, but are not 
limited to:
    (A) The continuous monitoring of mass emissions, emission rates, or 
process or control parameters.
    (B) In situ or portable measurement devices to verify control system 
operating conditions.
    (C) Periodic measurement of mass emissions or emission rates using 
reference test methods.
    (D) Operation and maintenance procedures and/or other work practices 
designed to prevent, identify, or remedy noncomplying conditions.
    (E) Manual or automated recordkeeping of material usage, 
inventories, throughput, production, or levels of required activities.
    (F) Any combination of these methods. EIP's shall require that 
responsible parties at each facility in the EIP program certify reported 
information.
    (ii) Procedures for determining required data, including the 
emissions contribution from affected sources, for

[[Page 876]]

periods for which required data monitoring is not performed, data are 
otherwise missing, or data have been demonstrated to have been 
inaccurately determined.
    (3) Any other applicable strategy-specific requirements.
    (f) Projected results and audit/reconciliation procedures. (1) The 
SIP submittal shall include projections of the emissions reductions 
associated with the implementation of the program. These projected 
results shall be related to and consistent with the assumptions used to 
develop the area's attainment demonstration and maintenance plan, as 
applicable. For programs designed to produce emissions reductions 
creditable towards RFP milestones, projected emissions reductions shall 
be related to the RFP baseline and consistent with the area's RFP 
compliance demonstration. The State shall provide sufficient supporting 
information that shows how affected sources are or will be addressed in 
the emissions inventory, RFP plan, and attainment demonstration or 
maintenance plan, as applicable.
    (i) For emission-limiting programs, the projected results shall be 
consistent with the reductions in mass emissions or emissions-related 
parameters specified in the program design.
    (ii) For market-response programs, the projected results shall be 
based on market analyses relating levels of targeted emissions and/or 
emission-related activities to program design parameters.
    (iii) For directionally-sound programs, the projected results may be 
descriptive and shall be consistent with the area's attainment 
demonstration or maintenance plan.
    (2) Quantitative projected results shall be adjusted through the use 
of two uncertainty factors, as appropriate, to reflect uncertainties 
inherent in both the extent to which sources will comply with program 
requirements and the overall program design.
    (i) Uncertainty resulting from incomplete compliance shall be 
addressed through the use of a rule compliance factor.
    (ii) Programmatic uncertainty shall be addressed through the use of 
a program uncertainty factor. Any presumptive norms set by the EPA shall 
be used unless an adequate justification for an alternative factor is 
included in supporting information to be supplied with the SIP 
submittal. In the absence of any EPA-specified presumptive norms, the 
State shall provide an adequate justification for the selected factors 
as part of the supporting information to be supplied with the SIP 
submittal.
    (3) Unless otherwise provided in program-specific guidance issued by 
the EPA, EIP's for which SIP credit is taken shall include audit 
procedures to evaluate program implementation and track program results 
in terms of both actual emissions reductions, and, to the extent 
practicable, cost savings relative to traditional regulatory program 
requirements realized during program implementation. Such audits shall 
be conducted at specified time intervals, not to exceed three years. The 
State shall provide timely post-audit reports to the EPA.
    (i) For emission-limiting EIP's, the State shall commit to ensure 
the timely implementation of programmatic revisions or other measures 
which the State, in response to the audit, deems necessary for the 
successful operation of the program in the context of overall RFP and 
attainment requirements.
    (ii) For market-response EIP's, reconciliation procedures that 
identify a range of appropriate actions or revisions to program 
requirements that will make up for any shortfall between credited 
results (i.e., projected results, as adjusted by the two uncertainty 
factors described above) and actual results obtained during program 
implementation shall be submitted together with the program audit 
provisions. Such measures must be federally enforceable, as appropriate, 
and automatically executing to the extent necessary to make up the 
shortfall within a specified period of time, consistent with relevant 
RFP and attainment requirements.
    (g) Implementation schedule. The program shall contain a schedule 
for the adoption and implementation of all State commitments and source 
requirements included in the program design.

[[Page 877]]

    (h) Administrative procedures. The program shall contain a 
description of State commitments which are integral to the 
implementation of the program, and the administrative system to be used 
to implement the program, addressing the adequacy of the personnel, 
funding, and legislative authority.
    (1) States shall furnish adequate documentation of existing legal 
authority and demonstrated administrative capacity to implement and 
enforce the provisions of the EIP.
    (2) For programs which require private and/or public entities to 
establish emission-related economic incentives (e.g., programs requiring 
employers to exempt carpoolers/multiple occupancy vehicles from paying 
for parking), States shall furnish adequate documentation of State 
authority and administrative capacity to implement and enforce the 
underlying program.
    (i) Enforcement mechanisms. The program shall contain a compliance 
instrument(s) for all program requirements, which is legally binding and 
State and federally enforceable. This program element shall also include 
a State enforcement program which defines violations, and specifies 
auditing and inspections plans and provisions for enforcement actions. 
The program shall contain effective penalties for noncompliance which 
preserve the level of deterrence in traditional programs. For all such 
programs, the manner of collection of penalties must be specified.
    (1) Emission limit violations. (i) Programs imposing limits on mass 
emissions or emission rates that provide for extended averaging times 
and/or compliance on a multisource basis shall include procedures for 
determining the number of violations, the number of days of violation, 
and sources in violation, for statutory maximum penalty purposes, when 
the limits are exceeded. The State shall demonstrate that such 
procedures shall not lessen the incentive for source compliance as 
compared to a program applied on a source-by-source, daily basis.
    (ii) Programs shall require plans for remedying noncompliance at any 
facility that exceeds a multisource emissions limit for a given 
averaging period. These plans shall be enforceable both federally and by 
the State.
    (2) Violations of MRR requirements. The MRR requirements shall apply 
on a daily basis, as appropriate, and violations thereof shall be 
subject to State enforcement sanctions and to the Federal penalty of up 
to $25,000 for each day a violation occurs or continues. In addition, 
where the requisite scienter conditions are met, violations of such 
requirements shall be subject to the Act's criminal penalty sanctions of 
section 113(c)(2), which provides for fines and imprisonment of up to 2 
years.



Sec. 51.494  Use of program revenues.

    Any revenues generated from statutory EIP's shall be used by the 
State for any of the following:
    (a) Providing incentives for achieving emissions reductions.
    (b) Providing assistance for the development of innovative 
technologies for the control of O3 air pollution and for the 
development of lower-polluting solvents and surface coatings. Such 
assistance shall not provide for the payment of more than 75 percent of 
either the costs of any project to develop such a technology or the 
costs of development of a lower-polluting solvent or surface coating.
    (c) Funding the administrative costs of State programs under this 
Act. Not more than 50 percent of such revenues may be used for this 
purpose. The use of any revenues generated from discretionary EIP's 
shall not be constrained by the provisions of this part.



Subpart W--Determining Conformity of General Federal Actions to State or 
                      Federal Implementation Plans

    Source: 58 FR 63247, Nov. 30, 1993, unless otherwise noted.



Sec. 51.850  Prohibition.

    (a) No department, agency or instrumentality of the Federal 
Government shall engage in, support in any way or provide financial 
assistance for, license or permit, or approve any activity which does 
not conform to an applicable implementation plan.

[[Page 878]]

    (b) A Federal agency must make a determination that a Federal action 
conforms to the applicable implementation plan in accordance with the 
requirements of this subpart before the action is taken.
    (c) Paragraph (b) of this section does not include Federal actions 
where either:
    (1) A National Environmental Policy Act (NEPA) analysis was 
completed as evidenced by a final environmental assessment (EA), 
environmental impact statement (EIS), or finding of no significant 
impact (FONSI) that was prepared prior to January 31, 1994;
    (2) (i) Prior to January 31, 1994, an EA was commenced or a contract 
was awarded to develop the specific environmental analysis;
    (ii) Sufficient environmental analysis is completed by March 15, 
1994 so that the Federal agency may determine that the Federal action is 
in conformity with the specific requirements and the purposes of the 
applicable SIP pursuant to the agency's affirmative obligation under 
section 176(c) of the Clean Air Act (Act); and
    (iii) A written determination of conformity under section 176(c) of 
the Act has been made by the Federal agency responsible for the Federal 
action by March 15, 1994.
    (d) Notwithstanding any provision of this subpart, a determination 
that an action is in conformance with the applicable implementation plan 
does not exempt the action from any other requirements of the applicable 
implementation plan, the NEPA, or the Act.



Sec. 51.851  State implementation plan (SIP) revision.

    (a) Each State must submit to the Environmental Protection Agency 
(EPA) a revision to its applicable implementation plan which contains 
criteria and procedures for assessing the conformity of Federal actions 
to the applicable implementation plan, consistent with this subpart. The 
State must submit the conformity provisions within 12 months after 
November 30, 1993 or within 12 months of an area's designation to 
nonattainment, whichever date is later.
    (b) The Federal conformity rules under this subpart and 40 CFR part 
93, in addition to any existing applicable State requirements, establish 
the conformity criteria and procedures necessary to meet the Act 
requirements until such time as the required conformity SIP revision is 
approved by EPA. A State's conformity provisions must contain criteria 
and procedures that are no less stringent than the requirements 
described in this subpart. A State may establish more stringent 
conformity criteria and procedures only if they apply equally to non-
Federal as well as Federal entities. Following EPA approval of the State 
conformity provisions (or a portion thereof) in a revision to the 
applicable SIP, the approved (or approved portion of the) State criteria 
and procedures would govern conformity determinations and the Federal 
conformity regulations contained in 40 CFR part 93 would apply only for 
the portion, if any, of the State's conformity provisions that is not 
approved by EPA. In addition, any previously applicable SIP requirements 
relating to conformity remain enforceable until the State revises its 
SIP to specifically remove them from the SIP and that revision is 
approved by EPA.



Sec. 51.852  Definitions.

    Terms used but not defined in this part shall have the meaning given 
them by the Act and EPA's regulations, (40 CFR chapter I), in that order 
of priority.
    Affected Federal land manager means the Federal agency or the 
Federal official charged with direct responsibility for management of an 
area designated as Class I under the Act (42 U.S.C. 7472) that is 
located within 100 km of the proposed Federal action.
    Applicable implementation plan or applicable SIP means the portion 
(or portions) of the SIP or most recent revision thereof, which has been 
approved under section 110 of the Act, or promulgated under section 
110(c) of the Act (Federal implementation plan), or promulgated or 
approved pursuant to regulations promulgated under section 301(d) of the 
Act and which implements the relevant requirements of the Act.
    Areawide air quality modeling analysis means an assessment on a 
scale that includes the entire nonattainment or

[[Page 879]]

maintenance area which uses an air quality dispersion model to determine 
the effects of emissions on air quality.
    Cause or contribute to a new violation means a Federal action that:
    (1) Causes a new violation of a national ambient air quality 
standard (NAAQS) at a location in a nonattainment or maintenance area 
which would otherwise not be in violation of the standard during the 
future period in question if the Federal action were not taken; or
    (2) Contributes, in conjunction with other reasonably foreseeable 
actions, to a new violation of a NAAQS at a location in a nonattainment 
or maintenance area in a manner that would increase the frequency or 
severity of the new violation.
    Caused by, as used in the terms ``direct emissions'' and ``indirect 
emissions,'' means emissions that would not otherwise occur in the 
absence of the Federal action.
    Criteria pollutant or standard means any pollutant for which there 
is established a NAAQS at 40 CFR part 50.
    Direct emissions means those emissions of a criteria pollutant or 
its precursors that are caused or initiated by the Federal action and 
occur at the same time and place as the action.
    Emergency means a situation where extremely quick action on the part 
of the Federal agencies involved is needed and where the timing of such 
Federal activities makes it impractical to meet the requirements of this 
subpart, such as natural disasters like hurricanes or earthquakes, civil 
disturbances such as terrorist acts, and military mobilizations.
    Emissions budgets are those portions of the applicable SIP's 
projected emissions inventories that describe the levels of emissions 
(mobile, stationary, area, etc.) that provide for meeting reasonable 
further progress milestones, attainment, and/or maintenance for any 
criteria pollutant or its precursors.
    Emissions offsets, for purposes of Sec. 51.858, are emissions 
reductions which are quantifiable, consistent with the applicable SIP 
attainment and reasonable further progress demonstrations, surplus to 
reductions required by, and credited to, other applicable SIP 
provisions, enforceable at both the State and Federal levels, and 
permanent within the timeframe specified by the program.
    Emissions that a Federal agency has a continuing program 
responsibility for means emissions that are specifically caused by an 
agency carrying out its authorities, and does not include emissions that 
occur due to subsequent activities, unless such activities are required 
by the Federal agency. Where an agency, in performing its normal program 
responsibilities, takes actions itself or imposes conditions that result 
in air pollutant emissions by a non-Federal entity taking subsequent 
actions, such emissions are covered by the meaning of a continuing 
program responsibility.
    EPA means the Environmental Protection Agency.
    Federal action means any activity engaged in by a department, 
agency, or instrumentality of the Federal government, or any activity 
that a department, agency or instrumentality of the Federal government 
supports in any way, provides financial assistance for, licenses, 
permits, or approves, other than activities related to transportation 
plans, programs, and projects developed, funded, or approved under title 
23 U.S.C. or the Federal Transit Act (49 U.S.C. 1601 et seq.). Where the 
Federal action is a permit, license, or other approval for some aspect 
of a non-Federal undertaking, the relevant activity is the part, 
portion, or phase or the non-Federal undertaking that requires the 
Federal permit, license, or approval.
    Federal agency means, for purposes of this subpart, a Federal 
department, agency, or instrumentality of the Federal government.
    Increase the frequency or severity of any existing violation of any 
standard in any area means to cause a nonattainment area to exceed a 
standard more often or to cause a violation at a greater concentration 
than previously existed and/or would otherwise exist during the future 
period in question, if the project were not implemented.
    Indirect emissions means those emissions of a criteria pollutant or 
its precursors that:
    (1) Are caused by the Federal action, but may occur later in time 
and/or may

[[Page 880]]

be farther removed in distance from the action itself but are still 
reasonably foreseeable; and
    (2) The Federal agency can practicably control and will maintain 
control over due to a continuing program responsibility of the Federal 
agency.
    Local air quality modeling analysis means an assessment of localized 
impacts on a scale smaller than the entire nonattainment or maintenance 
area, including, for example, congested roadway intersections and 
highways or transit terminals, which uses an air quality dispersion 
model to determine the effects of emissions on air quality.
    Maintenance area means an area with a maintenance plan approved 
under section 175A of the Act.
    Maintenance plan means a revision to the applicable SIP, meeting the 
requirements of section 175A of the Act.
    Metropolitan Planning Organization (MPO) is that organization 
designated as being responsible, together with the State, for conducting 
the continuing, cooperative, and comprehensive planning process under 23 
U.S.C. 134 and 49 U.S.C. 1607.
    Milestone has the meaning given in sections 182(g)(1) and 189(c)(1) 
of the Act.
    National ambient air quality standards (NAAQS) are those standards 
established pursuant to section 109 of the Act and include standards for 
carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), ozone, 
particulate matter (PM-10), and sulfur dioxide (SO2).
    NEPA is the National Environmental Policy Act of 1969, as amended 
(42 U.S.C. 4321 et seq.).
    Nonattainment Area (NAA) means an area designated as nonattainment 
under section 107 of the Act and described in 40 CFR part 81.
    Precursors of a criteria pollutant are:
    (1) For ozone, nitrogen oxides (NOX), unless an area is 
exempted from NOX requirements under section 182(f) of the Act, and 
volatile organic compounds (VOC); and
    (2) For PM-10, those pollutants described in the PM-10 nonattainment 
area applicable SIP as significant contributors to the PM-10 levels.
    Reasonably foreseeable emissions are projected future indirect 
emissions that are identified at the time the conformity determination 
is made; the location of such emissions is known and the emissions are 
quantifiable, as described and documented by the Federal agency based on 
its own information and after reviewing any information presented to the 
Federal agency.
    Regional water and/or wastewater projects include construction, 
operation, and maintenance of water or wastewater conveyances, water or 
wastewater treatment facilities, and water storage reservoirs which 
affect a large portion of a nonattainment or maintenance area.
    Regionally significant action means a Federal action for which the 
direct and indirect emissions of any pollutant represent 10 percent or 
more of a nonattainment or maintenance area's emissions inventory for 
that pollutant.
    Total of direct and indirect emissions means the sum of direct and 
indirect emissions increases and decreases caused by the Federal action; 
i.e., the ``net'' emissions considering all direct and indirect 
emissions. The portion of emissions which are exempt or presumed to 
conform under Sec. 51.853, (c), (d), (e), or (f) are not included in the 
``total of direct and indirect emissions.'' The ``total of direct and 
indirect emissions'' includes emissions of criteria pollutants and 
emissions of precursors of criteria pollutants.



Sec. 51.853  Applicability.

    (a) Conformity determinations for Federal actions related to 
transportation plans, programs, and projects developed, funded, or 
approved under title 23 U.S.C. or the Federal Transit Act (49 U.S.C. 
1601 et seq.) must meet the procedures and criteria of 40 CFR part 51, 
subpart T, in lieu of the procedures set forth in this subpart.
    (b) For Federal actions not covered by paragraph (a) of this 
section, a conformity determination is required for each pollutant where 
the total of direct and indirect emissions in a nonattainment or 
maintenance area caused by a Federal action would equal or exceed any of 
the rates in paragraphs (b)(1) or (2) of this section.
    (1) For purposes of paragraph (b) of this section, the following 
rates apply in nonattainment areas (NAAs):

[[Page 881]]



------------------------------------------------------------------------
                                                                  Tons/ 
                                                                   year 
------------------------------------------------------------------------
Ozone (VOC's or NOx):                                                   
  Serious NAA's................................................       50
  Severe NAA's.................................................       25
  Extreme NAA's................................................       10
  Other ozone NAA's outside an ozone transport region..........      100
Marginal and moderate NAA's inside an ozone transport region:           
    VOC........................................................       50
    NOx........................................................      100
Carbon monoxide: All NAA's.....................................      100
SO2 or NO2: All NAA's..........................................      100
PM-10:                                                                  
  Moderate NAA's...............................................      100
  Serious NAA's................................................       70
Pb: All NAA's..................................................       25
------------------------------------------------------------------------


    (2) For purposes of paragraph (b) of this section, the following 
rates apply in maintenance areas:

------------------------------------------------------------------------
                                                                  Tons/ 
                                                                   year 
------------------------------------------------------------------------
Ozone (NOx), SO2 or NO2: All maintenance areas.................      100
Ozone (VOC's):                                                          
  Maintenance areas inside an ozone transport region...........       50
  Maintenance areas outside an ozone transport region..........      100
Carbon monoxide: All maintenance areas.........................      100
PM-10: All maintenance areas...................................      100
Pb: All maintenance areas......................................       25
------------------------------------------------------------------------


    (c) The requirements of this subpart shall not apply to:
    (1) Actions where the total of direct and indirect emissions are 
below the emissions levels specified in paragraph (b) of this section.
    (2) The following actions which would result in no emissions 
increase or an increase in emissions that is clearly de minimis:
    (i) Judicial and legislative proceedings.
    (ii) Continuing and recurring activities such as permit renewals 
where activities conducted will be similar in scope and operation to 
activities currently being conducted.
    (iii) Rulemaking and policy development and issuance.
    (iv) Routine maintenance and repair activities, including repair and 
maintenance of administrative sites, roads, trails, and facilities.
    (v) Civil and criminal enforcement activities, such as 
investigations, audits, inspections, examinations, prosecutions, and the 
training of law enforcement personnel.
    (vi) Administrative actions such as personnel actions, 
organizational changes, debt management or collection, cash management, 
internal agency audits, program budget proposals, and matters relating 
to the administration and collection of taxes, duties and fees.
    (vii) The routine, recurring transportation of materiel and 
personnel.
    (viii) Routine movement of mobile assets, such as ships and 
aircraft, in home port reassignments and stations (when no new support 
facilities or personnel are required) to perform as operational groups 
and/or for repair or overhaul.
    (ix) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at an 
approved disposal site.
    (x) Actions, such as the following, with respect to existing 
structures, properties, facilities and lands where future activities 
conducted will be similar in scope and operation to activities currently 
being conducted at the existing structures, properties, facilities, and 
lands; for example, relocation of personnel, disposition of federally-
owned existing structures, properties, facilities, and lands, rent 
subsidies, operation and maintenance cost subsidies, the exercise of 
receivership or conservatorship authority, assistance in purchasing 
structures, and the production of coins and currency.
    (xi) The granting of leases, licenses such as for exports and trade, 
permits, and easements where activities conducted will be similar in 
scope and operation to activities currently being conducted.
    (xii) Planning, studies, and provision of technical assistance. 
(xiii) Routine operation of facilities, mobile assets and equipment.
    (xiv) Transfers of ownership, interests, and titles in land, 
facilities, and real and personal properties, regardless of the form or 
method of the transfer.
    (xv) The designation of empowerment zones, enterprise communities, 
or viticultural areas.

[[Page 882]]

    (xvi) Actions by any of the Federal banking agencies or the Federal 
Reserve Banks, including actions regarding charters, applications, 
notices, licenses, the supervision or examination of depository 
institutions or depository institution holding companies, access to the 
discount window, or the provision of financial services to banking 
organizations or to any department, agency or instrumentality of the 
United States.
    (xvii) Actions by the Board of Governors of the Federal Reserve 
System or any Federal Reserve Bank to effect monetary or exchange rate 
policy.
    (xviii) Actions that implement a foreign affairs function of the 
United States.
    (xix) Actions (or portions thereof) associated with transfers of 
land, facilities, title, and real properties through an enforceable 
contract or lease agreement where the delivery of the deed is required 
to occur promptly after a specific, reasonable condition is met, such as 
promptly after the land is certified as meeting the requirements of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), and where the Federal agency does not retain continuing 
authority to control emissions associated with the lands, facilities, 
title, or real properties.
    (xx) Transfers of real property, including land, facilities, and 
related personal property from a Federal entity to another Federal 
entity and assignments of real property, including land, facilities, and 
related personal property from a Federal entity to another Federal 
entity for subsequent deeding to eligible applicants.
    (xxi) Actions by the Department of the Treasury to effect fiscal 
policy and to exercise the borrowing authority of the United States.
    (3) The following actions where the emissions are not reasonably 
foreseeable:
    (i) Initial Outer Continental Shelf lease sales which are made on a 
broad scale and are followed by exploration and development plans on a 
project level.
    (ii) Electric power marketing activities that involve the 
acquisition, sale and transmission of electric energy.
    (4) Actions which implement a decision to conduct or carry out a 
conforming program such as prescribed burning actions which are 
consistent with a conforming land management plan.
    (d) Notwithstanding the other requirements of this subpart, a 
conformity determination is not required for the following Federal 
actions (or portion thereof):
    (1) The portion of an action that includes major new or modified 
stationary sources that require a permit under the new source review 
(NSR) program (section 173 of the Act) or the prevention of significant 
deterioration (PSD) program (title I, part C of the Act).
    (2) Actions in response to emergencies or natural disasters such as 
hurricanes, earthquakes, etc., which are commenced on the order of hours 
or days after the emergency or disaster and, if applicable, which meet 
the requirements of paragraph (e) of this section.
    (3) Research, investigations, studies, demonstrations, or training 
(other than those exempted under paragraph (c)(2) of this section), 
where no environmental detriment is incurred and/or, the particular 
action furthers air quality research, as determined by the State agency 
primarily responsible for the applicable SIP.
    (4) Alteration and additions of existing structures as specifically 
required by new or existing applicable environmental legislation or 
environmental regulations (e.g., hush houses for aircraft engines and 
scrubbers for air emissions).
    (5) Direct emissions from remedial and removal actions carried out 
under the Comprehensive Environmental Response, Compensation and 
Liability Act (CERCLA) and associated regulations to the extent such 
emissions either comply with the substantive requirements of the PSD/NSR 
permitting program or are exempted from other environmental regulation 
under the provisions of CERCLA and applicable regulations issued under 
CERCLA.
    (e) Federal actions which are part of a continuing response to an 
emergency or disaster under paragraph (d)(2) of this section and which 
are to be taken more than 6 months after the commencement of the 
response to the

[[Page 883]]

emergency or disaster under paragraph (d)(2) of this section are exempt 
from the requirements of this subpart only if:
    (1) The Federal agency taking the actions makes a written 
determination that, for a specified period not to exceed an additional 6 
months, it is impractical to prepare the conformity analyses which would 
otherwise be required and the actions cannot be delayed due to 
overriding concerns for public health and welfare, national security 
interests and foreign policy commitments; or
    (2) For actions which are to be taken after those actions covered by 
paragraph (e)(1) of this section, the Federal agency makes a new 
determination as provided in paragraph (e)(1) of this section.
    (f) Notwithstanding other requirements of this subpart, actions 
specified by individual Federal agencies that have met the criteria set 
forth in either paragraph (g)(1) or (g)(2) of this section and the 
procedures set forth in paragraph (h) of this section are presumed to 
conform, except as provided in paragraph (j) of this section.
    (g) The Federal agency must meet the criteria for establishing 
activities that are presumed to conform by fulfilling the requirements 
set forth in either paragraph (g)(1) or (g)(2) of this section:
    (1) The Federal agency must clearly demonstrate using methods 
consistent with this subpart that the total of direct and indirect 
emissions from the type of activities which would be presumed to conform 
would not:
    (i) Cause or contribute to any new violation of any standard in any 
area;
    (ii) Interfere with provisions in the applicable SIP for maintenance 
of any standard;
    (iii) Increase the frequency or severity of any existing violation 
of any standard in any area; or
    (iv) Delay timely attainment of any standard or any required interim 
emission reductions or other milestones in any area including, where 
applicable, emission levels specified in the applicable SIP for purposes 
of:
    (A) A demonstration of reasonable further progress;
    (B) A demonstration of attainment; or
    (C) A maintenance plan; or
    (2) The Federal agency must provide documentation that the total of 
direct and indirect emissions from such future actions would be below 
the emission rates for a conformity determination that are established 
in paragraph (b) of this section, based, for example, on similar actions 
taken over recent years.
    (h) In addition to meeting the criteria for establishing exemptions 
set forth in paragraphs (g)(1) or (g)(2) of this section, the following 
procedures must also be complied with to presume that activities will 
conform:
    (1) The Federal agency must identify through publication in the 
Federal Register its list of proposed activities that are presumed to 
conform and the basis for the presumptions;
    (2) The Federal agency must notify the appropriate EPA Regional 
Office(s), State and local air quality agencies and, where applicable, 
the agency designated under section 174 of the Act and the MPO and 
provide at least 30 days for the public to comment on the list of 
proposed activities presumed to conform;
    (3) The Federal agency must document its response to all the 
comments received and make the comments, response, and final list of 
activities available to the public upon request; and
    (4) The Federal agency must publish the final list of such 
activities in the Federal Register.
    (i) Notwithstanding the other requirements of this subpart, when the 
total of direct and indirect emissions of any pollutant from a Federal 
action does not equal or exceed the rates specified in paragraph (b) of 
this section, but represents 10 percent or more of a nonattainment or 
maintenance area's total emissions of that pollutant, the action is 
defined as a regionally significant action and the requirements of 
Sec. 51.850 and Sec. Sec. 51.855 through 51.860 shall apply for the 
Federal action.
    (j) Where an action otherwise presumed to conform under paragraph 
(f) of this section is a regionally significant action or does not in 
fact meet one of the criteria in paragraph (g)(1)

[[Page 884]]

of this section, that action shall not be presumed to conform and the 
requirements of Sec. 51.850 and Sec. Sec. 51.855 through 51.860 shall 
apply for the Federal action.
    (k) The provisions of this subpart shall apply in all nonattainment 
and maintenance areas.



Sec. 51.854  Conformity analysis.

    Any Federal department, agency, or instrumentality of the Federal 
government taking an action subject to this subpart must make its own 
conformity determination consistent with the requirements of this 
subpart. In making its conformity determination, a Federal agency must 
consider comments from any interested parties. Where multiple Federal 
agencies have jurisdiction for various aspects of a project, a Federal 
agency may choose to adopt the analysis of another Federal agency or 
develop its own analysis in order to make its conformity determination.



Sec. 51.855  Reporting requirements.

    (a) A Federal agency making a conformity determination under 
Sec. 51.858 must provide to the appropriate EPA Regional Office(s), 
State and local air quality agencies and, where applicable, affected 
Federal land managers, the agency designated under section 174 of the 
Act and the MPO a 30 day notice which describes the proposed action and 
the Federal agency's draft conformity determination on the action.
    (b) A Federal agency must notify the appropriate EPA Regional 
Office(s), State and local air quality agencies and, where applicable, 
affected Federal land managers, the agency designated under section 174 
of the Clean Air Act and the MPO within 30 days after making a final 
conformity determination under Sec. 51.858.



Sec. 51.856  Public participation.

    (a) Upon request by any person regarding a specific Federal action, 
a Federal agency must make available for review its draft conformity 
determination under Sec. 51.858 with supporting materials which describe 
the analytical methods and conclusions relied upon in making the 
applicability analysis and draft conformity determination.
    (b) A Federal agency must make public its draft conformity 
determination under Sec. 51.858 by placing a notice by prominent 
advertisement in a daily newspaper of general circulation in the area 
affected by the action and by providing 30 days for written public 
comment prior to taking any formal action on the draft determination. 
This comment period may be concurrent with any other public involvement, 
such as occurs in the NEPA process.
    (c) A Federal agency must document its response to all the comments 
received on its draft conformity determination under Sec. 51.858 and 
make the comments and responses available, upon request by any person 
regarding a specific Federal action, within 30 days of the final 
conformity determination.
    (d) A Federal agency must make public its final conformity 
determination under Sec. 51.858 for a Federal action by placing a notice 
by prominent advertisement in a daily newspaper of general circulation 
in the area affected by the action within 30 days of the final 
conformity determination.



Sec. 51.857  Frequency of conformity determinations.

    (a) The conformity status of a Federal action automatically lapses 5 
years from the date a final conformity determination is reported under 
Sec. 51.855, unless the Federal action has been completed or a 
continuous program has been commenced to implement that Federal action 
within a reasonable time.
    (b) Ongoing Federal activities at a given site showing continuous 
progress are not new actions and do not require periodic 
redeterminations so long as such activities are within the scope of the 
final conformity determination reported under Sec. 51.855.
    (c) If, after the conformity determination is made, the Federal 
action is changed so that there is an increase in the total of direct 
and indirect emissions above the levels in Sec. 51.853(b), a new 
conformity determination is required.



Sec. 51.858  Criteria for determining conformity of general Federal actions.

    (a) An action required under Sec. 51.853 to have a conformity 
determination for

[[Page 885]]

a specific pollutant, will be determined to conform to the applicable 
SIP if, for each pollutant that exceeds the rates in Sec. 51.853(b), or 
otherwise requires a conformity determination due to the total of direct 
and indirect emissions from the action, the action meets the 
requirements of paragraph (c) of this section, and meets any of the 
following requirements:
    (1) For any criteria pollutant, the total of direct and indirect 
emissions from the action are specifically identified and accounted for 
in the applicable SIP's attainment or maintenance demonstration;
    (2) For ozone or nitrogen dioxide, the total of direct and indirect 
emissions from the action are fully offset within the same nonattainment 
or maintenance area through a revision to the applicable SIP or a 
similarly enforceable measure that effects emission reductions so that 
there is no net increase in emissions of that pollutant;
    (3) For any criteria pollutant, except ozone and nitrogen dioxide, 
the total of direct and indirect emissions from the action meet the 
requirements:
    (i) Specified in paragraph (b) of this section, based on areawide 
air quality modeling analysis and local air quality modeling analysis; 
or
    (ii) Meet the requirements of paragraph (a)(5) of this section and, 
for local air quality modeling analysis, the requirement of paragraph 
(b) of this section;
    (4) For CO or PM-10--
    (i) Where the State agency primarily responsible for the applicable 
SIP determines that an areawide air quality modeling analysis is not 
needed, the total of direct and indirect emissions from the action meet 
the requirements specified in paragraph (b) of this section, based on 
local air quality modeling analysis; or
    (ii) Where the State agency primarily responsible for the applicable 
SIP determines that an areawide air quality modeling analysis is 
appropriate and that a local air quality modeling analysis is not 
needed, the total of direct and indirect emissions from the action meet 
the requirements specified in paragraph (b) of this section, based on 
areawide modeling, or meet the requirements of paragraph (a)(5) of this 
section; or
    (5) For ozone or nitrogen dioxide, and for purposes of paragraphs 
(a)(3)(ii) and (a)(4)(ii) of this section, each portion of the action or 
the action as a whole meets any of the following requirements:
    (i) Where EPA has approved a revision to an area's attainment or 
maintenance demonstration after 1990 and the State makes a determination 
as provided in paragraph (a)(5)(i)(A) of this section or where the State 
makes a commitment as provided in paragraph (a)(5)(i)(B) of this 
section:
    (A) The total of direct and indirect emissions from the action (or 
portion thereof) is determined and documented by the State agency 
primarily responsible for the applicable SIP to result in a level of 
emissions which, together with all other emissions in the nonattainment 
(or maintenance) area, would not exceed the emissions budgets specified 
in the applicable SIP;
    (B) The total of direct and indirect emissions from the action (or 
portion thereof) is determined by the State agency responsible for the 
applicable SIP to result in a level of emissions which, together with 
all other emissions in the nonattainment (or maintenance) area, would 
exceed an emissions budget specified in the applicable SIP and the State 
Governor or the Governor's designee for SIP actions makes a written 
commitment to EPA which includes the following:
    (1) A specific schedule for adoption and submittal of a revision to 
the SIP which would achieve the needed emission reductions prior to the 
time emissions from the Federal action would occur;
    (2) Identification of specific measures for incorporation into the 
SIP which would result in a level of emissions which, together with all 
other emissions in the nonattainment or maintenance area, would not 
exceed any emissions budget specified in the applicable SIP;
    (3) A demonstration that all existing applicable SIP requirements 
are being implemented in the area for the pollutants affected by the 
Federal action, and that local authority to implement

[[Page 886]]

additional requirements has been fully pursued;
    (4) A determination that the responsible Federal agencies have 
required all reasonable mitigation measures associated with their 
action; and
    (5) Written documentation including all air quality analyses 
supporting the conformity determination;
    (C) Where a Federal agency made a conformity determination based on 
a State commitment under paragraph (a)(5)(i)(B) of this section, such a 
State commitment is automatically deemed a call for a SIP revision by 
EPA under section 110(k)(5) of the Act, effective on the date of the 
Federal conformity determination and requiring response within 18 months 
or any shorter time within which the State commits to revise the 
applicable SIP;
    (ii) The action (or portion thereof), as determined by the MPO, is 
specifically included in a current transportation plan and 
transportation improvement program which have been found to conform to 
the applicable SIP under 40 CFR part 51, subpart T, or 40 CFR part 93, 
subpart A;
    (iii) The action (or portion thereof) fully offsets its emissions 
within the same nonattainment or maintenance area through a revision to 
the applicable SIP or an equally enforceable measure that effects 
emission reductions equal to or greater than the total of direct and 
indirect emissions from the action so that there is no net increase in 
emissions of that pollutant;
    (iv) Where EPA has not approved a revision to the relevant SIP 
attainment or maintenance demonstration since 1990, the total of direct 
and indirect emissions from the action for the future years (described 
in Sec. 51.859(d)) do not increase emissions with respect to the 
baseline emissions:
    (A) The baseline emissions reflect the historical activity levels 
that occurred in the geographic area affected by the proposed Federal 
action during:
    (1) Calendar year 1990;
    (2) The calendar year that is the basis for the classification (or, 
where the classification is based on multiple years, the most 
representative year), if a classification is promulgated in 40 CFR part 
81; or
    (3) The year of the baseline inventory in the PM-10 applicable SIP;
    (B) The baseline emissions are the total of direct and indirect 
emissions calculated for the future years (described in Sec. 51.859(d)) 
using the historic activity levels (described in paragraph (a)(5)(iv)(A) 
of this section) and appropriate emission factors for the future years; 
or
    (v) Where the action involves regional water and/or wastewater 
projects, such projects are sized to meet only the needs of population 
projections that are in the applicable SIP.
    (b) The areawide and/or local air quality modeling analyses must:
    (1) Meet the requirements in Sec. 51.859; and
    (2) Show that the action does not:
    (i) Cause or contribute to any new violation of any standard in any 
area; or
    (ii) Increase the frequency or severity of any existing violation of 
any standard in any area.
    (c) Notwithstanding any other requirements of this section, an 
action subject to this subpart may not be determined to conform to the 
applicable SIP unless the total of direct and indirect emissions from 
the action is in compliance or consistent with all relevant requirements 
and milestones contained in the applicable SIP, such as elements 
identified as part of the reasonable further progress schedules, 
assumptions specified in the attainment or maintenance demonstration, 
prohibitions, numerical emission limits, and work practice requirements.
    (d) Any analyses required under this section must be completed, and 
any mitigation requirements necessary for a finding of conformity must 
be identified before the determination of conformity is made.



Sec. 51.859  Procedures for conformity determinations of general Federal actions.

    (a) The analyses required under this subpart must be based on the 
latest planning assumptions.
    (1) All planning assumptions must be derived from the estimates of 
population, employment, travel, and congestion most recently approved by 
the

[[Page 887]]

MPO, or other agency authorized to make such estimates, where available.
    (2) Any revisions to these estimates used as part of the conformity 
determination, including projected shifts in geographic location or 
level of population, employment, travel, and congestion, must be 
approved by the MPO or other agency authorized to make such estimates 
for the urban area.
    (b) The analyses required under this subpart must be based on the 
latest and most accurate emission estimation techniques available as 
described below, unless such techniques are inappropriate. If such 
techniques are inappropriate and written approval of the EPA Regional 
Administrator is obtained for any modification or substitution, they may 
be modified or another technique substituted on a case-by-case basis or, 
where appropriate, on a generic basis for a specific Federal agency 
program.
    (1) For motor vehicle emissions, the most current version of the 
motor vehicle emissions model specified by EPA and available for use in 
the preparation or revision of SIPs in that State must be used for the 
conformity analysis as specified in paragraphs (b)(1) (i) and (ii) of 
this section:
    (i) The EPA must publish in the Federal Register a notice of 
availability of any new motor vehicle emissions model; and
    (ii) A grace period of three months shall apply during which the 
motor vehicle emissions model previously specified by EPA as the most 
current version may be used. Conformity analyses for which the analysis 
was begun during the grace period or no more than 3 years before the 
Federal Register notice of availability of the latest emission model may 
continue to use the previous version of the model specified by EPA.
    (2) For non-motor vehicle sources, including stationary and area 
source emissions, the latest emission factors specified by EPA in the 
``Compilation of Air Pollutant Emission Factors (AP-42)''\1\ must be 
used for the conformity analysis unless more accurate emission data are 
available, such as actual stack test data from stationary sources which 
are part of the conformity analysis.
---------------------------------------------------------------------------

    \1\ Copies may be obtained from the Technical Support Division of 
OAQPS, EPA, MD-14, Research Triangle Park, NC 27711.
---------------------------------------------------------------------------

    (c) The air quality modeling analyses required under this subpart 
must be based on the applicable air quality models, data bases, and 
other requirements specified in the most recent version of the 
``Guideline on Air Quality Models (Revised)'' (1986), including 
supplements (EPA publication no. 450/2-78-027R) \2\, unless:
---------------------------------------------------------------------------

    \2\ See footnote 1 at Sec. 51.859(b)(2).
---------------------------------------------------------------------------

    (1) The guideline techniques are inappropriate, in which case the 
model may be modified or another model substituted on a case-by-case 
basis or, where appropriate, on a generic basis for a specific Federal 
agency program; and
    (2) Written approval of the EPA Regional Administrator is obtained 
for any modification or substitution.
    (d) The analyses required under this subpart, except 
Sec. 51.858(a)(1), must be based on the total of direct and indirect 
emissions from the action and must reflect emission scenarios that are 
expected to occur under each of the following cases:
    (1) The Act mandated attainment year or, if applicable, the farthest 
year for which emissions are projected in the maintenance plan;
    (2) The year during which the total of direct and indirect emissions 
from the action is expected to be the greatest on an annual basis; and
    (3) any year for which the applicable SIP specifies an emissions 
budget.



Sec. 51.860  Mitigation of air quality impacts.

    (a) Any measures that are intended to mitigate air quality impacts 
must be identified and the process for implementation and enforcement of 
such measures must be described, including an implementation schedule 
containing explicit timelines for implementation.
    (b) Prior to determining that a Federal action is in conformity, the 
Federal agency making the conformity determination must obtain written 
commitments from the appropriate persons

[[Page 888]]

or agencies to implement any mitigation measures which are identified as 
conditions for making conformity determinations.
    (c) Persons or agencies voluntarily committing to mitigation 
measures to facilitate positive conformity determinations must comply 
with the obligations of such commitments.
    (d) In instances where the Federal agency is licensing, permitting 
or otherwise approving the action of another governmental or private 
entity, approval by the Federal agency must be conditioned on the other 
entity meeting the mitigation measures set forth in the conformity 
determination.
    (e) When necessary because of changed circumstances, mitigation 
measures may be modified so long as the new mitigation measures continue 
to support the conformity determination. Any proposed change in the 
mitigation measures is subject to the reporting requirements of 
Sec. 51.856 and the public participation requirements of Sec. 51.857.
    (f) The implementation plan revision required in Sec. 51.851 shall 
provide that written commitments to mitigation measures must be obtained 
prior to a positive conformity determination and that such commitments 
must be fulfilled.
    (g) After a State revises its SIP to adopt its general conformity 
rules and EPA approves that SIP revision, any agreements, including 
mitigation measures, necessary for a conformity determination will be 
both State and federally enforceable. Enforceability through the 
applicable SIP will apply to all persons who agree to mitigate direct 
and indirect emissions associated with a Federal action for a conformity 
determination.

                       Appendices A-K--[Reserved]

    Appendix L to Part 51--Example Regulations for Prevention of Air 
                      Pollution Emergency Episodes

    The example regulations presented herein reflect generally 
recognized ways of preventing air pollution from reaching levels that 
would cause imminent and substantial endangerment to the health of 
persons. States are required under subpart H to have emergency episodes 
plans but they are not required to adopt the regulations presented 
herein.
    1.0  Air pollution emergency. This regulation is designed to prevent 
the excessive buildup of air pollutants during air pollution episodes, 
thereby preventing the occurrence of an emergency due to the effects of 
these pollutants on the health of persons.
    1.1  Episode criteria. Conditions justifying the proclamation of an 
air pollution alert, air pollution warning, or air pollution emergency 
shall be deemed to exist whenever the Director determines that the 
accumulation of air pollutants in any place is attaining or has attained 
levels which could, if such levels are sustained or exceeded, lead to a 
substantial threat to the health of persons. In making this 
determination, the Director will be guided by the following criteria:
    (a) Air Pollution Forecast: An internal watch by the Department of 
Air Pollution Control shall be actuated by a National Weather Service 
advisory that Atmospheric Stagnation Advisory is in effect or the 
equivalent local forecast of stagnant atmospheric condition.
    (b) Alert: The Alert level is that concentration of pollutants at 
which first stage control actions is to begin. An Alert will be declared 
when any one of the following levels is reached at any monitoring site:
    SO2--800 g/m3 (0.3 p.p.m.), 24-hour average.
    PM10--350 g/m\3\, 24-hour average.
    CO--17 mg/m3 (15 p.p.m.), 8-hour average.

    Ozone (O2)=400 g/m3 (0.2 ppm)-hour average.
    NO2-1130 g/m3 (0.6 p.p.m.), 1-hour average, 282 
g/m3(0.15 p.p.m.), 24-hour average.
    In addition to the levels listed for the above pollutants, 
meterological conditions are such that pollutant concentrations can be 
expected to remain at the above levels for twelve (12) or more hours or 
increase, or in the case of ozone, the situation is likely to reoccur 
within the next 24-hours unless control actions are taken.

    (c) Warning: The warning level indicates that air quality is 
continuing to degrade and that additional control actions are necessary. 
A warning will be declared when any one of the following levels is 
reached at any monitoring site:

SO2--1,600 g/m3 (0.6 p.p.m.), 24-hour average.
PM10--420 g/m\3\, 24-hour average.
CO--34 mg/m3 (30 p.p.m.), 8-hour average.
Ozone (O3)--800 g/m3 (0.4 p.p.m.), 1-hour average.
NO2--2,260 g/m3 (1.2 ppm)--1-hour average; 
565g/m3 (0.3 ppm), 24-hour average.
    In addition to the levels listed for the above pollutants, 
meterological conditions are such that pollutant concentrations can be 
expected to remain at the above levels for twelve (12) or more hours or 
increase, or in

[[Page 889]]

the case of ozone, the situation is likely to reoccur within the next 
24-hours unless control actions are taken.

    (d) Emergency: The emergency level indicates that air quality is 
continuing to degrade toward a level of significant harm to the health 
of persons and that the most stringent control actions are necessary. An 
emergency will be declared when any one of the following levels is 
reached at any monitoring site:

SO2--2,100 g/m3 (0.8 p.p.m.), 24-hour average.
    PM10--500 g/m\3\, 24-hour average.
CO--46 mg/m3 (40 p.p.m.), 8-hour average.
Ozone (O3)--1,000 g/m3 (0.5 p.p.m.), 1-hour average.
NO2-3,000 g/m3 (1.6 ppm), 1-hour average; 750 
g/m3 (0.4 ppm), 24-hour average.
    In addition to the levels listed for the above pollutants, 
meterological conditions are such that pollutant concentrations can be 
expected to remain at the above levels for twelve (12) or more hours or 
increase, or in the case of ozone, the situation is likely to reoccur 
within the next 24-hours unless control actions are taken.

    (e) Termination: Once declared, any status reached by application of 
these criteria will remain in effect until the criteria for that level 
are no longer met. At such time, the next lower status will be assumed.
    1.2  Emission reduction plans. (a) Air Pollution Alert--When the 
Director declares an Air Pollution Alert, any person responsible for the 
operation of a source of air pollutants as set forth in Table I shall 
take all Air Pollution Alert actions as required for such source of air 
pollutants and shall put into effect the preplanned abatement strategy 
for an Air Pollution Alert.
    (b) Air Pollution Warning--When the Director declares an Air 
Pollution Warning, any person responsible for the operation of a source 
of air pollutants as set forth in Table II shall take all Air Pollution 
Warning actions as required for such source of air pollutants and shall 
put into effect the preplanned abatement strategy for an Air Pollution 
Warning.
    (c) Air Pollution Emergency--When the Director declares an Air 
Pollution Emergency, any person responsible for the operation of a 
source of air pollutants as described in Table III shall take all Air 
Pollution Emergency actions as required for such source of air 
pollutants and shall put into effect the preplanned abatement strategy 
for an Air Pollution Emergency.
    (d) When the Director determines that a specified criteria level has 
been reached at one or more monitoring sites solely because of emissions 
from a limited number of sources, he shall notify such source(s) that 
the preplanned abatement strategies of Tables I, II, and III or the 
standby plans are required, insofar as it applies to such source(s), and 
shall be put into effect until the criteria of the specified level are 
no longer met.
    1.3  Preplanned abatement strategies, (a) Any person responsible for 
the operation of a source of air pollutants as set forth in Tables I-III 
shall prepare standby plans for reducing the emission of air pollutants 
during periods of an Air Pollution Alert, Air Pollution Warning, and Air 
Pollution Emergency. Standby plans shall be designed to reduce or 
eliminate emissions of air pollutants in accordance with the objectives 
set forth in Tables I-III which are made a part of this section.
    (b) Any person responsible for the operation of a source of air 
pollutants not set forth under section 1.3(a) shall, when requested by 
the Director in writing, prepare standby plans for reducing the emission 
of air pollutants during periods of an Air Pollution Alert, Air 
Pollution Warning, and Air Pollution Emergency. Standby plans shall be 
designed to reduce or eliminate emissions of air pollutants in 
accordance with the objectives set forth in Tables I-III.
    (c) Standby plans as required under section 1.3(a) and (b) shall be 
in writing and identify the sources of air pollutants, the approximate 
amount of reduction of pollutants and a brief description of the manner 
in which the reduction will be achieved during an Air Pollution Alert, 
Air Pollution Warning, and Air Pollution Emergency.
    (d) During a condition of Air Pollution Alert, Air Pollution 
Warning, and Air Pollution Emergency, standby plans as required by this 
section shall be made available on the premises to any person authorized 
to enforce the provisions of applicable rules and regulations.
    (e) Standby plans as required by this section shall be submitted to 
the Director upon request within thirty (30) days of the receipt of such 
request; such standby plans shall be subject to review and approval by 
the Director. If, in the opinion of the Director, a standby plan does 
not effectively carry out the objectives as set forth in Table I-III, 
the Director may disapprove it, state his reason for disapproval and 
order the preparation of an amended standby plan within the time period 
specified in the order.

[[Page 890]]

         Table I--Abatement Strategies Emission Reduction Plans

                               alert level

                             Part A. General

    1. There shall be no open burning by any persons of tree waste, 
vegetation, refuse, or debris in any form.
    2. The use of incinerators for the disposal of any form of solid 
waste shall be limited to the hours between 12 noon and 4 p.m.
    3. Persons operating fuel-burning equipment which required boiler 
lancing or soot blowing shall perform such operations only between the 
hours of 12 noon and 4 p.m.
    4. Persons operating motor vehicles should eliminate all unnecessary 
operations.

                       Part B. Source curtailment

    Any person responsible for the operation of a source of air 
pollutants listed below shall take all required control actions for this 
Alert Level.

------------------------------------------------------------------------
      Source of air pollution                  Control action           
------------------------------------------------------------------------
1. Coal or oil-fired electric       a. Substantial reduction by         
 power generating facilities.        utilization of fuels having low ash
                                     and sulfur content.                
                                    b. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing and  
                                     soot blowing.                      
                                    c. Substantial reduction by         
                                     diverting electric power generation
                                     to facilities outside of Alert     
                                     Area.                              
2. Coal and oil-fired process       a. Substantial reduction by         
 steam generating facilities.        utilization of fuels having low ash
                                     and sulfur content.                
                                    b. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing and  
                                     soot blowing.                      
                                    c. Substantial reduction of steam   
                                     load demands consistent with       
                                     continuing plant operations.       
3. Manufacturing industries of the  a. Substantial reduction of air     
 following classifications:          pollutants from manufacturing      
    Primary Metals Industry.         operations by curtailing,          
    Petroleum Refining Operations.   postponing, or deferring production
    Chemical Industries.             and all operations.                
    Mineral Processing Industries.  b. Maximum reduction by deferring   
    Paper and Allied Products.       trade waste disposal operations    
    Grain Industry.                  which emit solid particles, gas    
                                     vapors or malodorous substances.   
                                    c. Maximum reduction of heat load   
                                     demands for processing.            
                                    d. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing and  
                                     soot blowing.                      
------------------------------------------------------------------------

                   Table II--Emission Reduction Plans

                              warning level

                             Part A. General

    1. There shall be no open burning by any persons of tree waste, 
vegetation, refuse, or debris in any form.
    2. The use of incinerators for the disposal of any form of solid 
waste or liquid waste shall be prohibited.
    3. Persons operating fuel-burning equipment which requires boiler 
lancing or soot blowing shall perform such operations only between the 
hours of 12 noon and 4 p.m.
    4. Persons operating motor vehicles must reduce operations by the 
use of car pools and increased use of public transportation and 
elimination of unnecessary operation.

                       Part B. Source curtailment

    Any person responsible for the operation of a source of air 
pollutants listed below shall take all required control actions for this 
Warning Level.

------------------------------------------------------------------------
      Source of air pollution                  Control action           
------------------------------------------------------------------------
1. Coal or oil-fired process steam  a. Maximum reduction by utilization 
 generating facilities.              of fuels having lowest ash and     
                                     sulfur content.                    
                                    b. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing and  
                                     soot blowing.                      
                                    c. Maximum reduction by diverting   
                                     electric power generation to       
                                     facilities outside of Warning Area.
2. Oil and oil-fired process steam  a. Maximum reduction by utilization 
 generating facilities.              of fuels having the lowest         
                                     available ash and sulfur content.  
                                    b. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing and  
                                     soot blowing.                      
                                    c. Making ready for use a plan of   
                                     action to be taken if an emergency 
                                     develops.                          

[[Page 891]]

                                                                        
3. Manufacturing industries which   a. Maximum reduction of air         
 require considerable lead time      contaminants from manufacturing    
 for shut-down including the         operations by, if necessary,       
 following classifications:          assuming reasonable economic       
    Petroleum Refining.              hardships by postponing production 
    Chemical Industries.             and allied operation.              
    Primary Metals Industries.      b. Maximum reduction by deferring   
    Glass Industries.                trade waste disposal operations    
    Paper and Allied Products.       which emit solid particles, gases, 
                                     vapors or malodorous substances.   
                                    c. Maximum reduction of heat load   
                                     demands for processing.            
                                    d. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing or   
                                     soot blowing.                      
4. Manufacturing industries         a. Elimination of air pollutants    
 require relatively short lead       from manufacturing operations by   
 times for shut-down including the   ceasing, curtailing, postponing or 
 following classifications:          deferring production and allied    
    Primary Metals Industries.       operations to the extent possible  
    Chemical Industries.             without causing injury to persons  
    Mineral Processing Industries.   or damage to equipment.            
    Grain Industry.                 b. Elimination of air pollutants    
                                     from trade waste disposal processes
                                     which emit solid particles, gases, 
                                     vapors or malodorous substances.   
                                    c. Maximum reduction of heat load   
                                     demands for processing.            
                                    d. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing or   
                                     soot blowing.                      
------------------------------------------------------------------------

                   Table III--Emission Reduction Plans

                             emergency level

                             Part A. General

    1. There shall be no open burning by any persons of tree waste, 
vegetation, refuse, or debris in any form.
    2. The use of incinerators for the disposal of any form of solid or 
liquid waste shall be prohibited.
    3. All places of employment described below shall immediately cease 
operations.
    a. Mining and quarrying of nonmetallic minerals.
    b. All construction work except that which must proceed to avoid 
emergent physical harm.
    c. All manufacturing establishments except those required to have in 
force an air pollution emergency plan.
    d. All wholesale trade establishments; i.e., places of business 
primarily engaged in selling merchandise to retailers, or industrial, 
commercial, institutional or professional users, or to other 
wholesalers, or acting as agents in buying merchandise for or selling 
merchandise to such persons or companies, except those engaged in the 
distribution of drugs, surgical supplies and food.
    e. All offices of local, county and State government including 
authorities, joint meetings, and other public bodies excepting such 
agencies which are determined by the chief administrative officer of 
local, county, or State government, authorities, joint meetings and 
other public bodies to be vital for public safety and welfare and the 
enforcement of the provisions of this order.
    f. All retail trade establishments except pharmacies, surgical 
supply distributors, and stores primarily engaged in the sale of food.
    g. Banks, credit agencies other than banks, securities and 
commodities brokers, dealers, exchanges and services; offices of 
insurance carriers, agents and brokers, real estate offices.
    h. Wholesale and retail laundries, laundry services and cleaning and 
dyeing establishments; photographic studios; beauty shops, barber shops, 
shoe repair shops.
    i. Advertising offices; consumer credit reporting, adjustment and 
collection agencies; duplicating, addressing, blueprinting; 
photocopying, mailing, mailing list and stenographic services; equipment 
rental services, commercial testing laboratories.
    j. Automobile repair, automobile services, garages.
    k. Establishments rendering amusement and recreational services 
including motion picture theaters.
    l. Elementary and secondary schools, colleges, universities, 
professional schools, junior colleges, vocational schools, and public 
and private libraries.
    4. All commercial and manufacturing establishments not included in 
this order will institute such actions as will result in maximum 
reduction of air pollutants from their operation by ceasing, curtailing, 
or postponing operations which emit air pollutants to the extent 
possible without causing injury to persons or damage to equipment.
    5. The use of motor vehicles is prohibited except in emergencies 
with the approval of local or State police.

                       Part B. Source curtailment

    Any person responsible for the operation of a source of air 
pollutants listed below shall take all required control actions for this 
Emergency Level.

[[Page 892]]



------------------------------------------------------------------------
      Source of air pollution                  Control action           
------------------------------------------------------------------------
1. Coal or oil-fired electric       a. Maximum reduction by utilization 
 power generating facilities.        of fuels having lowest ash and     
                                     sulfur content.                    
                                    b. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing or   
                                     soot blowing.                      
                                    c. Maximum reduction by diverting   
                                     electric power generation to       
                                     facilities outside of Emergency    
                                     Area.                              
2. Coal and oil-fired process       a. Maximum reduction by reducing    
 steam generating facilities.        heat and steam demands to absolute 
                                     necessities consistent with        
                                     preventing equipment damage.       
                                    b. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing and  
                                     soot blowing.                      
                                    c. Taking the action called for in  
                                     the emergency plan.                
3. Manufacturing industries of the  a. Elimination of air pollutants    
 following classifications:          from manufacturing operations by   
    Primary Metals Industries.       ceasing, curtailing, postponing or 
    Petroleum Refining.              deferring production and allied    
    Chemical Industries.             operations to the extent possible  
    Mineral Processing Industries.   without causing injury to persons  
    Grain Industry.                  or damage to equipment.            
    Paper and Allied Products.      b. Elimination of air pollutants    
                                     from trade waste disposal processes
                                     which emit solid particles, gases, 
                                     vapors or malodorous substances.   
                                    c. Maximum reduction of heat load   
                                     demands for processing.            
                                    d. Maximum utilization of mid-day   
                                     (12 noon to 4 p.m.) atmospheric    
                                     turbulence for boiler lancing or   
                                     soot blowing.                      
------------------------------------------------------------------------

(Secs. 110, 301(a), 313, 319, Clean Air Act (42 U.S.C. 7410, 7601(a), 
7613, 7619))

[36 FR 22398, Nov. 25, 1971; 36 FR 24002, Dec. 17, 1971, as amended at 
37 FR 26312, Dec. 9, 1972; 40 FR 36333, Aug. 20, 1975; 41 FR 35676, Aug. 
24, 1976; 44 FR 27570, May 10, 1979; 51 FR 40675, Nov. 7, 1986; 52 FR 
24714, July 1, 1987]

Appendix M to Part 51--Recommended Test Methods for State Implementation 
                                  Plans

    Method 201--Determination of PM10 Emissions (Exhaust Gas 
Recycle Procedure).
    Method 201A--Determination of PM10 Emissions (Constant Sampling 
Rate Procedure).
    Method 202--Determination of Condensible Particulate Emissions From 
Stationary Sources
    Method 205--Verification of Gas Dilution Systems for Field 
Instrument Calibrations
    Presented herein are recommended test methods for measuring air 
pollutantemanating from an emission source. They are provided for States 
to use in their plans to meet the requirements of subpart K--Source 
Surveillance.
    The State may also choose to adopt other methods to meet the 
requirements of subpart K of this part, subject to the normal plan 
review process.
    The State may also meet the requirements of subpart K of this part 
by adopting, again subject to the normal plan review process, any of the 
relevant methods in appendix A to 40 CFR part 60.

            Method 201--Determination of PM10 Emissions

                     (Exhaust Gas Recycle Procedure)

                     1.  Applicability and Principle

    1.1  Applicability. This method applies to the in-stack measurement 
of particulate matter (PM) emissions equal to or less than an 
aerodynamic diameter of nominally 10 m (PM10) from 
stationary sources. The EPA recognizes that condensible emissions not 
collected by an in-stack method are also PM10, and that emissions 
that contribute to ambient PM10 levels are the sum of condensible 
emissions and emissions measured by an in-stack PM10 method, such 
as this method or Method 201A. Therefore, for establishing source 
contributions to ambient levels of PM10, such as for emission 
inventory purposes, EPA suggests that source PM10 measurement 
include both in-stack PM10 and condensible emissions. Condensible 
missions may be measured by an impinger analysis in combination with 
this method.
    1.2  Principle. A gas sample is isokinetically extracted from the 
source. An in-stack cyclone is used to separate PM greater than 
PM10, and an in-stack glass fiber filter is used to collect the 
PM10. To maintain isokinetic flow rate conditions at the tip of the 
probe and a constant flow rate through the cyclone, a clean, dried 
portion of the sample gas at stack temperature is recycled into the 
nozzle. The particulate mass is determined gravimetrically after removal 
of uncombined water.

                              2.  Apparatus

    Note: Method 5 as cited in this method refers to the method in 40 
CFR part 60, appendix A.

[[Page 893]]

    2.1  Sampling Train. A schematic of the exhaust of the exhaust gas 
recycle (EGR) train is shown in Figure 1 of this method.
    2.1.1  Nozzle with Recycle Attachment. Stainless steel (316 or 
equivalent) with a sharp tapered leading edge, and recycle attachment 
welded directly on the side of the nozzle (see schematic in Figure 2 of 
this method). The angle of the taper shall be on the outside. Use only 
straight sampling nozzles. ``Gooseneck'' or other nozzle extensions 
designed to turn the sample gas flow 90 deg., as in Method 5 are not 
acceptable. Locate a thermocouple in the recycle attachment to measure 
the temperature of the recycle gas as shown in Figure 3 of this method. 
The recycle attachment shall be made of stainless steel and shall be 
connected to the probe and nozzle with stainless steel fittings. Two 
nozzle sizes, e.g., 0.125 and 0.160 in., should be available to allow 
isokinetic sampling to be conducted over a range of flow rates. 
Calibrate each nozzle as described in Method 5, Section 5.1.
    2.1.2  PM10 Sizer. Cyclone, meeting the specifications in 
Section 5.7 of this method.
    2.1.3  Filter Holder. 63mm, stainless steel. An Andersen filter, 
part number SE274, has been found to be acceptable for the in-stack 
filter.

    Note: Mention of trade names or specific products does not 
constitute endorsement by the Environmental Protection Agency.

    2.1.4  Pitot Tube. Same as in Method 5, Section 2.1.3. Attach the 
pitot to the pitot lines with stainless steel fittings and to the 
cyclone in a configuration similar to that shown in Figure 3 of this 
method. The pitot lines shall be made of heat resistant material and 
attached to the probe with stainless steel fittings.
    2.1.5  EGR Probe. Stainless steel, 15.9-mm (\5/8\-in.) ID tubing 
with a probe liner, stainless steel 9.53-mm (\3/8\-in.) ID stainless 
steel recycle tubing, two 6.35-mm (\1/4\-in.) ID stainless steel tubing 
for the pitot tube extensions, three thermocouple leads, and one power 
lead, all contained by stainless steel tubing with a diameter of 
approximately 51 mm (2.0 in.). Design considerations should include 
minimum weight construction materials sufficient for probe structural 
strength. Wrap the sample and recycle tubes with a heating tape to heat 
the sample and recycle gases to stack temperature.
    2.1.6  Condenser. Same as in Method 5, Section 2.1.7.
    2.1.7  Umbilical Connector. Flexible tubing with thermocouple and 
power leads of sufficient length to connect probe to meter and flow 
control console.
    2.1.8  Vacuum Pump. Leak-tight, oil-less, noncontaminating, with an 
absolute filter, ``HEPA'' type, at the pump exit. A Gast Model 0522-V103 
G18DX pump has been found to be satisfactory.
    2.1.9  Meter and Flow Control Console. System consisting of a dry 
gas meter and calibrated orifice for measuring sample flow rate and 
capable of measuring volume to 2 percent, calibrated laminar 
flow elements (LFE's) or equivalent for measuring total and sample flow 
rates, probe heater control, and manometers and magnehelic gauges (as 
shown in Figures 4 and 5 of this method), or equivalent. Temperatures 
needed for calculations include stack, recycle, probe, dry gas meter, 
filter, and total flow. Flow measurements include velocity head 
(p), orifice differential pressure (H), total flow, 
recycle flow, and total back-pressure through the system.
    2.1.10  Barometer. Same as in Method 5, Section 2.1.9.
    2.1.11  Rubber Tubing. 6.35-mm (\1/4\-in.) ID flexible rubber 
tubing.
    2.2  Sample Recovery.
    2.2.1  Nozzle, Cyclone, and Filter Holder Brushes. Nylon bristle 
brushes property sized and shaped for cleaning the nozzle, cyclone, 
filter holder, and probe or probe liner, with stainless steel wire 
shafts and handles.
    2.2.2  Wash Bottles, Glass Sample Storage Containers, Petri Dishes, 
Graduated Cylinder and Balance, Plastic Storage Containers, and Funnels. 
Same as Method 5, Sections 2.2.2 through 2.2.6 and 2.2.8, respectively.
    2.3  Analysis. Same as in Method 5, Section 2.3.

                              3.  Reagents

    The reagents used in sampling, sample recovery, and analysis are the 
same as that specified in Method 5, Sections 3.1, 3.2, and 3.3, 
respectively.

                              4.  Procedure

    4.1  Sampling. The complexity of this method is such that, in order 
to obtain reliable results, testers should be trained and experienced 
with the test procedures.
    4.1.1  Pretest Preparation. Same as in Method 5, Section 4.1.1.
    4.1.2  Preliminary Determinations. Same as Method 5, Section 4.1.2, 
except use the directions on nozzle size selection in this section. Use 
of the EGR method may require a minimum sampling port diameter of 0.2 m 
(6 in.). Also, the required maximum number of sample traverse points at 
any location shall be 12.
    4.1.2.1  The cyclone and filter holder must be in-stack or at stack 
temperature during sampling. The blockage effects of the EGR sampling 
assembly will be minimal if the cross-sectional area of the sampling 
assembly is 3 percent or less of the cross-sectional area of the duct 
and a pitot coefficient of 0.84 may be assigned to the pitot. If the 
cross-sectional area of the assembly is greater than 3 percent of the 
cross-sectional area of

[[Page 894]]

the duct, then either determine the pitot coefficient at sampling 
conditions or use a standard pitot with a known coefficient in a 
configuration with the EGR sampling assembly such that flow disturbances 
are minimized.
    4.1.2.2  Construct a setup of pressure drops for various 
p's and temperatures. A computer is useful for these 
calculations. An example of the output of the EGR setup program is shown 
in Figure 6 of this method, and directions on its use are in section 
4.1.5.2 of this method. Computer programs, written in IBM BASIC computer 
language, to do these types of setup and reduction calculations for the 
EGR procedure, are available through the National Technical Information 
Services (NTIS), Accession number PB90-500000, 5285 Port Royal Road, 
Springfield, VA 22161.
    4.1.2.3  The EGR setup program allows the tester to select the 
nozzle size based on anticipated average stack conditions and prints a 
setup sheet for field use. The amount of recycle through the nozzle 
should be between 10 and 80 percent. Inputs for the EGR setup program 
are stack temperature (minimum, maximum, and average), stack velocity 
(minimum, maximum, and average), atmospheric pressure, stack static 
pressure, meter box temperature, stack moisture, percent 02, and 
percent CO2 in the stack gas, pitot coefficient (Cp), orifice 
 H@, flow rate measurement calibration values [slope (m) 
and y-intercept (b) of the calibration curve], and the number of nozzles 
available and their diameters.
    4.1.2.4  A less rigorous calculation for the setup sheet can be done 
manually using the equations on the example worksheets in Figures 7, 8, 
and 9 of this method, or by a Hewlett-Packard HP41 calculator using the 
program provided in appendix D of the EGR operators manual, entitled 
Applications Guide for Source PM10 Exhaust Gas Recycle Sampling 
System. This calculation uses an approximation of the total flow rate 
and agrees within 1 percent of the exact solution for pressure drops at 
stack temperatures from 38 to 260  deg.C (100 to 500  deg.F) and stack 
moisture up to 50 percent. Also, the example worksheets use a constant 
stack temperature in the calculation, ingoring the complicated 
temperature dependence from all three pressure drop equations. Errors 
for this at stack temperatures 28  deg.C (50 
deg.F) of the temperature used in the setup calculations are within 5 
percent for flow rate and within 5 percent for cyclone cut size.
    4.1.2.5  The pressure upstream of the LFE's is assumed to be 
constant at 0.6 in. Hg in the EGR setup calculations.
    4.1.2.6  The setup sheet constructed using this procedure shall be 
similar to Figure 6 of this method. Inputs needed for the calculation 
are the same as for the setup computer except that stack velocities are 
not needed.
    4.1.3  Preparation of Collection Train. Same as in Method 5, Section 
4.1.3, except use the following directions to set up the train.
    4.1.3.1  Assemble the EGR sampling device, and attach it to probe as 
shown in Figure 3 of this method. If stack temperatures exceed 260 
deg.C (500  deg.F), then assemble the EGR cyclone without the O-ring and 
reduce the vacuum requirement to 130 mm Hg (5.0 in. Hg) in the leak-
check procedure in Section 4.1.4.3.2 of this method.
    4.1.3.2  Connect the proble directly to the filter holder and 
condenser as in Method 5. Connect the condenser and probe to the meter 
and flow control console with the umbilical connector. Plug in the pump 
and attach pump lines to the meter and flow control console.
    4.1.4  Leak-Check Procedure. The leak-check for the EGR Method 
consists of two parts: the sample-side and the recycle-side. The sample-
side leak-check is required at the beginning of the run with the cyclone 
attached, and after the run with the cyclone removed. The cyclone is 
removed before the post-test leak-check to prevent any disturbance of 
the collected sample prior to analysis. The recycle-side leak-check 
tests the leak tight integrity of the recycle components and is required 
prior to the first test run and after each shipment.
    4.1.4.1  Pretest Leak-Check. A pretest leak-check of the entire 
sample-side, including the cyclone and nozzle, is required. Use the 
leak-check procedure in Section 4.1.4.3 of this method to conduct a 
pretest leak-check.
    4.1.4.2  Leak-Checks During Sample Run. Same as in Method 5, Section 
4.1.4.1.
    4.1.4.3  Post-Test Leak-Check. A leak-check is required at the 
conclusion of each sampling run. Remove the cyclone before the leak-
check to prevent the vacuum created by the cooling of the probe from 
disturbing the collected sample and use the following procedure to 
conduct a post-test leak-check.
    4.1.4.3.1  The sample-side leak-check is performed as follows: After 
removing the cyclone, seal the probe with a leak-tight stopper. Before 
starting pump, close the coarse total valve and both recycle valves, and 
open completely the sample back pressure valve and the fine total valve. 
After turning the pump on, partially open the coarse total valve slowly 
to prevent a surge in the manometer. Adjust the vacuum to at least 381 
mm Hg (15.0 in. Hg) with the fine total valve. If the desired vacuum is 
exceeded, either leak-check at this higher vacuum or end the leak-check 
as shown below and start over.

    Caution: Do not decrease the vacuum with any of the valves. This may 
cause a rupture of the filter.

    Note: A lower vacuum may be used, provided that it is not exceeded 
during the test.


[[Page 895]]


    4.1.4.3.2  Leak rates in excess of 0.00057 m\3\/min (0.020 ft\3\/
min) are unacceptable. If the leak rate is too high, void the sampling 
run.
    4.1.4.3.3  To complete the leak-check, slowly remove the stopper 
from the nozzle until the vacuum is near zero, then immediately turn off 
the pump. This procedure sequence prevents a pressure surge in the 
manometer fluid and rupture of the filter.
    4.1.4.3.4  The recycle-side leak-check is performed as follows: 
Close the coarse and fine total valves and sample back pressure valve. 
Plug the sample inlet at the meter box. Turn on the power and the pump, 
close the recycle valves, and open the total flow valves. Adjust the 
total flow fine adjust valve until a vacuum of 25 inches of mercury is 
achieved. If the desired vacuum is exceeded, either leak-check at this 
higher vacuum, or end the leak-check and start over. Minimum acceptable 
leak rates are the same as for the sample-side. If the leak rate is too 
high, void the sampling run.
    4.1.5  EGR Train Operation. Same as in Method 5, Section 4.1.5, 
except omit references to nomographs and recommendations about changing 
the filter assembly during a run.
    4.1.5.1  Record the data required on a data sheet such as the one 
shown in Figure 10 of this method. Make periodic checks of the manometer 
level and zero to ensure correct H and p values. An 
acceptable procedure for checking the zero is to equalize the pressure 
at both ends of the manometer by pulling off the tubing, allowing the 
fluid to equilibrate and, if necessary, to re-zero. Maintain the probe 
temperature to within 11  deg.C (20  deg.F) of stack temperature.
    4.1.5.2  The procedure for using the example EGR setup sheet is as 
follows: Obtain a stack velocity reading from the pitot manometer 
(p), and find this value on the ordinate axis of the setup 
sheet. Find the stack temperature on the abscissa. Where these two 
values intersect are the differential pressures necessary to achieve 
isokineticity and 10 m cut size (interpolation may be 
necessary).
    4.1.5.3  The top three numbers are differential pressures (in. 
H2O), and the bottom number is the percent recycle at these flow 
settings. Adjust the total flow rate valves, coarse and fine, to the 
sample value (H) on the setup sheet, and the recycle flow rate 
valves, coarse and fine, to the recycle flow on the setup sheet.
    4.1.5.4  For startup of the EGR sample train, the following 
procedure is recommended. Preheat the cyclone in the stack for 30 
minutes. Close both the sample and recycle coarse valves. Open the fine 
total, fine recycle, and sample back pressure valves halfway. Ensure 
that the nozzle is properly aligned with the sample stream. After noting 
the p and stack temperature, select the appropriate H 
and recycle from the EGR setup sheet. Start the pump and timing device 
simultaneously. Immediately open both the coarse total and the coarse 
recycle valves slowly to obtain the approximate desired values. Adjust 
both the fine total and the fine recycle valves to achieve more 
precisely the desired values. In the EGR flow system, adjustment of 
either valve will result in a change in both total and recycle flow 
rates, and a slight iteration between the total and recycle valves may 
be necessary. Because the sample back pressure valve controls the total 
flow rate through the system, it may be necessary to adjust this valve 
in order to obtain the correct flow rate.

    Note: Isokinetic sampling and proper operation of the cyclone are 
not achieved unless the correct H and recycle flow rates are 
maintained.

    4.1.5.5  During the test run, monitor the probe and filter 
temperatures periodically, and make adjustments as necessary to maintain 
the desired temperatures. If the sample loading is high, the filter may 
begin to blind or the cyclone may clog. The filter or the cyclone may be 
replaced during the sample run. Before changing the filter or cyclone, 
conduct a leak-check (Section 4.1.4.2 of this method). The total 
particulate mass shall be the sum of all cyclone and the filter catch 
during the run. Monitor stack temperature and p periodically, 
and make the necessary adjustments in sampling and recycle flow rates to 
maintain isokinetic sampling and the proper flow rate through the 
cyclone. At the end of the run, turn off the pump, close the coarse 
total valve, and record the final dry gas meter reading. Remove the 
probe from the stack, and conduct a post-test leak-check as outlined in 
Section 4.1.4.3 of this method.
    4.2  Sample Recovery. Allow the probe to cool. When the probe can be 
safely handled, wipe off all external PM adhering to the outside of the 
nozzle, cyclone, and nozzle attachment, and place a cap over the nozzle 
to prevent losing or gaining PM. Do not cap the nozzle tip tightly while 
the sampling train is cooling, as this action would create a vacuum in 
the filter holder. Disconnect the probe from the umbilical connector, 
and take the probe to the cleanup site. Sample recovery should be 
conducted in a dry indoor area or, if outside, in an area protected from 
wind and free of dust. Cap the ends of the impingers and carry them to 
the cleanup site. Inspect the components of the train prior to and 
during disassembly to note any abnormal conditions. Disconnect the pitot 
from the cyclone. Remove the cyclone from the probe. Recover the sample 
as follows:
    4.2.1  Container Number 1 (Filter). The recovery shall be the same 
as that for Container Number 1 in Method 5, Section 4.2.

[[Page 896]]

    4.2.2  Container Number 2 (Cyclone or Large PM Catch). The cyclone 
must be disassembled and the nozzle removed in order to recover the 
large PM catch. Quantitatively recover the PM from the interior surfaces 
of the nozzle and the cyclone, excluding the ``turn around'' cup and the 
interior surfaces of the exit tube. The recovery shall be the same as 
that for Container Number 2 in Method 5, Section 4.2.
    4.2.3  Container Number 3 (PM10). Quantitatively recover the PM 
from all of the surfaces from cyclone exit to the front half of the in-
stack filter holder, including the ``turn around'' cup and the interior 
of the exit tube. The recovery shall be the same as that for Container 
Number 2 in Method 5, Section 4.2.
    4.2.4  Container Number 4 (Silica Gel). Same as that for Container 
Number 3 in Method 5, Section 4.2.
    4.2.5  Impinger Water. Same as in Method 5, Section 4.2, under 
``Impinger Water.''
    4.3  Analysis. Same as in Method 5, Section 4.3, except handle EGR 
Container Numbers 1 and 2 like Container Number 1 in Method 5, EGR 
Container Numbers 3, 4, and 5 like Container Number 3 in Method 5, and 
EGR Container Number 6 like Container Number 3 in Method 5. Use Figure 
11 of this method to record the weights of PM collected.
    4.4  Quality Control Procedures. Same as in Method 5, Section 4.4.
    4.5  PM10 Emission Calculation and Acceptability of Results. 
Use the EGR reduction program or the procedures in section 6 of this 
method to calculate PM10 emissions and the criteria in section 6.7 
of this method to determine the acceptability of the results.

                             5. Calibration

    Maintain an accurate laboratory log of all calibrations.
    5.1  Probe Nozzle. Same as in Method 5, Section 5.1.
    5.2  Pitot Tube. Same as in Method 5, Section 5.2.
    5.3  Meter and Flow Control Console.
    5.3.1  Dry Gas Meter. Same as in Method 5, Section 5.3.
    5.3.2  LFE Gauges. Calibrate the recycle, total, and inlet total LFE 
gauges with a manometer. Read and record flow rates at 10, 50, and 90 
percent of full scale on the total and recycle pressure gauges. Read and 
record flow rates at 10, 20, and 30 percent of full scale on the inlet 
total LFE pressure gauge. Record the total and recycle readings to the 
nearest 0.3 mm (0.01 in.). Record the inlet total LFE readings to the 
nearest 3 mm (0.1 in.). Make three separate measurements at each setting 
and calculate the average. The maximum difference between the average 
pressure reading and the average manometer reading shall not exceed 1 mm 
(0.05 in.). If the differences exceed the limit specified, adjust or 
replace the pressure gauge. After each field use, check the calibration 
of the pressure gauges.
    5.3.3  Total LFE. Same as the metering system in Method 5, Section 
5.3.
    5.3.4  Recycle LFE. Same as the metering system in Method 5, Section 
5.3, except completely close both the coarse and fine recycle valves.
    5.4  Probe Heater. Connect the probe to the meter and flow control 
console with the umbilical connector. Insert a thermocouple into the 
probe sample line approximately half the length of the probe sample 
line. Calibrate the probe heater at 66  deg.C (150  deg.F), 121  deg.C 
(250  deg.F), and 177  deg.C (350  deg.F). Turn on the power, and set 
the probe heater to the specified temperature. Allow the heater to 
equilibrate, and record the thermocouple temperature and the meter and 
flow control console temperature to the nearest 0.5  deg.C (1  deg.F). 
The two temperatures should agree within 5.5  deg.C (10  deg.F). If this 
agreement is not met, adjust or replace the probe heater controller.
    5.5  Temperature Gauges. Connect all thermocouples, and let the 
meter and flow control console equilibrate to ambient temperature. All 
thermocouples shall agree to within 1.1  deg.C (2.0  deg.F) with a 
standard mercury-in-glass thermometer. Replace defective thermocouples.
    5.6  Barometer. Calibrate against a standard mercury-in-glass 
barometer.
    5.7  Probe Cyclone and Nozzle Combinations. The probe cyclone and 
nozzle combinations need not be calibrated if the cyclone meets the 
design specifications in Figure 12 of this method and the nozzle meets 
the design specifications in appendix B of the Application Guide for the 
Source PM 10 Exhaust Gas Recycle Sampling System, EPA/600/3-88-058. 
This document may be obtained from Roy Huntley at (919) 541-1060. If the 
nozzles do not meet the design specifications, then test the cyclone and 
nozzle combination for conformity with the performance specifications 
(PS's) in Table 1 of this method. The purpose of the PS tests is to 
determine if the cyclone's sharpness of cut meets minimum performance 
criteria. If the cyclone does not meet design specifications, then, in 
addition to the cyclone and nozzle combination conforming to the PS's, 
calibrate the cyclone and determine the relationship between flow rate, 
gas viscosity, and gas density. Use the procedures in Section 5.7.5 of 
this method to conduct PS tests and the procedures in Section 5.8 of 
this method to calibrate the cyclone. Conduct the PS tests in a wind 
tunnel described in Section 5.7.1 of this method and using a particle 
generation system described in Section 5.7.2 of this method. Use five 
particle sizes and three wind velocities as listed

[[Page 897]]

in Table 2 of this method. Perform a minimum of three replicate 
measurements of collection efficiency for each of the 15 conditions 
listed, for a minimum of 45 measurements.
    5.7.1  Wind Tunnel. Perform calibration and PS tests in a wind 
tunnel (or equivalent test apparatus) capable of establishing and 
maintaining the required gas stream velocities within 10 percent.
    5.7.2  Particle Generation System. The particle generation system 
shall be capable of producing solid monodispersed dye particles with the 
mass median aerodynamic diameters specified in Table 2 of this method. 
The particle size distribution verification should be performed on an 
integrated sample obtained during the sampling period of each test. An 
acceptable alternative is to verify the size distribution of samples 
obtained before and after each test, with both samples required to meet 
the diameter and monodispersity requirements for an acceptable test run.
    5.7.2.1  Establish the size of the solid dye particles delivered to 
the test section of the wind tunnel using the operating parameters of 
the particle generation system, and verify the size during the tests by 
microscopic examination of samples of the particles collected on a 
membrane filter. The particle size, as established by the operating 
parameters of the generation system, shall be within the tolerance 
specified in Table 2 of this method. The precision of the particle size 
verification technique shall be at least 0.5 m, and 
the particle size determined by the verification technique shall not 
differ by more than 10 percent from that established by the operating 
parameters of the particle generation system.
    5.7.2.2  Certify the monodispersity of the particles for each test 
either by microscopic inspection of collected particles on filters or by 
other suitable monitoring techniques such as an optical particle counter 
followed by a multichannel pulse height analyzer. If the proportion of 
multiplets and satellites in an aerosol exceeds 10 percent by mass, the 
particle generation system is unacceptable for purposes of this test. 
Multiplets are particles that are agglomerated, and satellites are 
particles that are smaller than the specified size range.
    5.7.3  Schematic Drawings. Schematic drawings of the wind tunnel and 
blower system and other information showing complete procedural details 
of the test atmosphere generation, verification, and delivery techniques 
shall be furnished with calibration data to the reviewing agency.
    5.7.4  Flow Rate Measurement. Determine the cyclone flow rates with 
a dry gas meter and a stopwatch, or a calibrated orifice system capable 
of measuring flow rates to within 2 percent.
    5.7.5  Performance Specification Procedure. Establish the test 
particle generator operation and verify the particle size 
microscopically. If mondispersity is to be verified by measurements at 
the beginning and the end of the run rather than by an integrated 
sample, these measurements may be made at this time.
    5.7.5.1  The cyclone cut size (D50) is defined as the 
aerodynamic diameter of a particle having a 50 percent probability of 
penetration. Determine the required cyclone flow rate at which D50 
is 10 m. A suggested procedure is to vary the cyclone flow rate 
while keeping a constant particle size of 10 m. Measure the PM 
collected in the cyclone (mc), exit tube (mt), and filter 
(mf). Compute the cyclone efficiency (Ec) as follows:

                                                                        
                                   mc                                   
        Ec =        --------------------------------        x  100      
                             (mc + mt + mf)                             
                                                                        

    5.7.5.2 Perform three replicates and calculate the average cyclone 
efficiency as follows:

                                                                        
                                                    (E1+E2+E3)          
         Eavg                  =        --------------------------------
                                                        3               
                                                                        

where E1, E2, and E3 are replicate measurements of 
Ec.
    5.7.5.3 Calculate the standard deviation () for the 
replicate measurements of Ec as follows:

  .......                      (E1+E2+E3)2                                             \1/2\                    
  .......      (E12+E22+E32) - ------------------                                                               
  .......  <5                          3                                            <5-ln ]>                    
            -                                                                                                   
     exceeds 0.10, repeat the replicate runs.
    5.7.5.4  Using the cyclone flow rate that produces D50 for 10 
m, measure the overall efficiency of the cyclone and nozzle, 
Eo, at the particle sizes and nominal gas velocities in Table 2 of 
this method using this following procedure.
    5.7.5.5  Set the air velocity in the wind tunnel to one of the 
nominal gas velocities from Table 2 of this method. Establish isokinetic 
sampling conditions and the correct flow rate through the sampler 
(cyclone and nozzle) using recycle capacity so that

[[Page 898]]

the D50 is 10 m. Sample long enough to obtain 
5 percent precision on the total collected mass as 
determined by the precision and the sensitivity of the measuring 
technique. Determine separately the nozzle catch (mn), cyclone 
catch (mc), cyclone exit tube catch (mt), and collection 
filter catch (mf).
    5.7.5.6  Calculate the overall efficiency (Eo) as follows:

                                                                        
                                 (mn+mc)                                
       Eo =       ------------------------------------       x  100     
                              (mn+mc+mt+mf)                             
                                                                        

    5.7.5.7  Do three replicates for each combination of gas velocities 
and particle sizes in Table 2 of this method. Calculate Eo for each 
particle size following the procedures described in this section for 
determining efficiency. Calculate the standard deviation () for 
the replicate measurements. If  exceeds 0.10, repeat the 
replicate runs.
    5.7.6  Criteria for Acceptance. For each of the three gas stream 
velocities, plot the average Eo as a function of particle size on 
Figure 13 of this method. Draw a smooth curve for each velocity through 
all particle sizes. The curve shall be within the banded region for all 
sizes, and the average Ec for a D50 for 10 m shall be 
50  0.5 percent.
    5.8  Cyclone Calibration Procedure. The purpose of this section is 
to develop the relationship between flow rate, gas viscosity, gas 
density, and D50. This procedure only needs to be done on those 
cyclones that do not meet the design specifications in Figure 12 of this 
method.
    5.8.1  Calculate cyclone flow rate. Determine the flow rates and 
D50's for three different particle sizes between 5 m and 
15 m, one of which shall be 10 m. All sizes must be 
within 0.5 m. For each size, use a different temperature within 
60 deg.C (108 deg.F) of the temperature at which the cyclone is to be 
used and conduct triplicate runs. A suggested procedure is to keep the 
particle size constant and vary the flow rate. Some of the values 
obtained in the PS tests in Section 5.7.5 may be used.
    5.8.1.1  On log-log graph paper, plot the Reynolds number (Re) on 
the abscissa, and the square root of the Stokes 50 number 
[(STK50)1/2] on the ordinate for each temperature. Use the 
following equations:

                                                                        
                                               4Qcyc           
        Re                 =       -------------------------------------
                                          dcyccyc     
                                                                        

      

                                                                        
                                      4 Qcyc (D50) 2                    
                                  ---------------------                 
    (Stk50)1/2 =        <3-ln [>   9      1/2
                                      m>cyc (dcyc) 3                    
                                                                        

where:
    Qcyc = Cyclone flow rate cm\3\/sec.
     = Gas density, g/cm\3\.
    dcyc = Diameter of cyclone inlet, cm.
    cyc = Viscosity of gas through the cyclone, poise.
    D50 = Cyclone cut size, cm.
    5.8.1.2  Use a linear regression analysis to determine the slope 
(m), and the y-intercept (b). Use the following formula to determine Q, 
the cyclone flow rate required for a cut size of 10 m.

                                                                                                                                                        
                                                                                            Ts                                                 
           cyc                                                                         -----------                                             
  Q =   -----------------   <3-ln [>      (3000)(K1)b       <3-ln ]>     -(0.5-m)     <3-ln [>                <3-ln ]>      m/(m-0.5) d(m-1.5)/(m-0.5)  
                4                                                                                  Mc Ps                                                
                                                                                                                                                        

where:
    Q = Cyclone flow rate for a cut size of 10 m, cm\3\/sec.
    Ts = Stack gas temperature,  deg.K,
    d = Diameter of nozzle, cm.
    K1 = 4.077 X 10-3.

    5.8.2.  Directions for Using Q. Refer to Section 5 of the EGR 
operators manual for directions in using this expression for Q in the 
setup calculations.

                             6. Calculations

    6.1  The EGR data reduction calculations are performed by the EGR 
reduction computer program, which is written in IBM BASIC computer 
language and is available through NTIS, Accession number PB90-500000, 
5285 Port Royal Road, Springfield, Virginia 22161. Examples of program 
inputs and outputs are shown in Figure 14 of this method.
    6.1.1  Calculations can also be done manually, as specified in 
Method 5, Sections 6.3 through 6.7, and 6.9 through 6.12, with the 
addition of the following:
    6.1.2  Nomenclature.
    Bc = Moisture fraction of mixed cyclone gas, by volume, 
dimensionless.
    C1 = Viscosity constant, 51.12 micropoise for  deg.K (51.05 
micropoise for  deg.R).
    C2 = Viscosity constant, 0.372 micropoise/ deg.K (0.207 
micropoise/ deg.R).
    C3 = Viscosity constant, 1.05 X 10-4 micropoise/ deg.K\2\ 
(3.24 X 10-5 micropoise/ deg.R\2\).
    C4 = Viscosity constant, 53.147 micropoise/fraction O2.
    C5 = Viscosity constant, 74.143 micropoise/fraction H2O.

[[Page 899]]

    D50 = Diameter of particles having a 50 percent probability of 
penetration, m.
    f02 = Stack gas fraction O2, by volume, dry basis.
    K1 = 0.3858  deg.K/mm Hg (17.64  deg.R/in. Hg).
    Mc = Wet molecular weight of mixed gas through the PM10 
cyclone, g/g-mole (lb/lb-mole).
    Md = Dry molecular weight of stack gas, g/g-mole (lb/lb-mole).
    Pbar = Barometer pressure at sampling site, mm Hg (in. Hg).
    Pin1 = Gauge pressure at inlet to total LFE, mm H2O (in. 
H2O).
    P3 = Absolute stack pressure, mm Hg (in. Hg).
    Q2 = Total cyclone flow rate at wet cyclone conditions, m\3\/
min (ft\3\/min).
    Qs(std) = Total cyclone flow rate at standard conditons, dscm/
min (dscf/min).
    Tm = Average temperature of dry gas meter,  deg.K ( deg.R).
    Ts = Average stack gas temperature,  deg.K ( deg.R).
    Vw(std) = Volume of water vapor in gas sample (standard 
conditions), scm (scf).
    XT = Total LFE linear calibration constant, m\3\/[(min)(mm 
H2O]) {ft\3\/[(min)(in. H2O)]}.
    YT = Total LFE linear calibration constant, dscm/min (dscf/
min).
    PT = Pressure differential across total LFE, mm 
H2O, (in. H2O).
     = Total sampling time, min.
    cyc = Viscosity of mixed cyclone gas, micropoise.
    LFE = Viscosity of gas laminar flow elements, 
micropoise.
    std = Viscosity of standard air, 180.1 micropoise.
    6.2  PM10 Particulate Weight. Determine the weight of PM10 
by summing the weights obtained from Container Numbers 1 and 3, less the 
acetone blank.
    6.3  Total Particulate Weight. Determine the particulate catch for 
PM greater than PM10 from the weight obtained from Container Number 
2 less the acetone blank, and add it to the PM10 particulate 
weight.
    6.4  PM10 Fraction. Determine the PM10 fraction of the 
total particulate weight by dividing the PM10 particulate weight by 
the total particulate weight.
    6.5  Total Cyclone Flow Rate. The average flow rate at standard 
conditions is determined from the average pressure drop across the total 
LFE and is calculated as follows:

                                                                                                                
                                                     std                             Pbar + Pinl/13.6  
     Qs(std) = K1         <3-ln [>   XT P -----------------   +YT       <3-ln ]>  ---------------------
                                                     LFE                                    Tm         
                                                                                                                

    The flow rate, at actual cyclone conditions, is calculated as 
follows:

                                                                        
              Ts                                   Vm(std)              
   Qs=   -----------   <3-ln [>     Qs(std) +  --------------  <3-ln ]> 
            K1 Ps                                             
                                                                        

    The flow rate, at actual cyclone conditions, is calculated as 
follows:

                                                                        
              Ts                                   Vm(std)              
   Qs=   -----------   <3-ln [>     Qs(std) +  --------------  <3-ln ]> 
            K1 Ps                                             
                                                                        


    6.6  Aerodynamic Cut Size. Use the following procedure to determine 
the aerodynamic cut size (D50).
    6.6.1  Determine the water fraction of the mixed gas through the 
cyclone by using the equation below.

                                                                        
                                              Vw(std)                   
           Bc=           -----------------------------------------------
                                   Qs(std)  + Vw(std)         
                                                                        

    6.6.2  Calculate the cyclone gas viscosity as follows:
cyc = C1 + C2 Ts + C3 Ts2 + 
          C4 f02 - C5  Bc
    6.6.3  Calculate the molecular weight on a wet basis of the cyclone 
gas as follows:
Mc = Md(1 - Bc) + 18.0(Bc)
    6.6.4  If the cyclone meets the design specification in Figure 12 of 
this method, calculate the actual D50 of the cyclone for the run as 
follows:

                                                                                                                
                                  Ts                  0.2.091                cyc                0.7091 
 D50= 1    <3-ln [>  ----------  <3-ln ]>  -----------  <3-ln [>  ----------------  <3-ln ]>  ---------
                                 Mc Ps                                            Qs                            
                                                                                                                

where 1 = 0.1562.

    6.6.5  If the cyclone does not meet the design specifications in 
Figure 12 of this method, then use the following equation to calculate 
D50.

[[Page 900]]



                                                                                                                                                        
                                                              Mc Ps                                                4 Qs                                 
                                                          -------------                                     ------------------                          
        D50=(3)(10)b (7.376 x 10-4)m           <3-ln [>                           <3-ln ]>       <3-ln [>           d(1.5-m) 
                                                                Ts                                                m>cyc                                 
                                                                                                                                                        

where:

    m = Slope of the calibration curve obtained in Section 5.8.2.
    b = y-intercept of the calibration curve obtained in Section 5.8.2.
    6.7  Acceptable Results. Acceptability of anisokinetic variation is 
the same as Method 5, Section 6.12.
    6.7.1  If 9.0 m  D50  11 
m and 90  I  110, the results are 
acceptable. If D50  is greater than 11 m, the 
Administrator may accept the results. If D50  is less than 9.0 
m, reject the results and repeat the test.

                             7. Bibliography

    1. Same as Bibliography in Method 5.
    2. McCain, J.D., J.W. Ragland, and A.D. Williamson. Recommended 
Methodology for the Determination of Particles Size Distributions in 
Ducted Sources, Final Report. Prepared for the California Air Resources 
Board by Southern Research Institute. May 1986.
    3. Farthing, W.E., S.S. Dawes, A.D. Williamson, J.D. McCain, R.S. 
Martin, and J.W. Ragland. Development of Sampling Methods for Source PM-
10 Emissions. Southern Research Institute for the Environmental 
Protection Agency. April 1989.
    4. Application Guide for the Source PM10 Exhaust Gas Recycle 
Sampling System, EPA/600/3-88-058.

[[Page 901]]




      

[[Page 902]]




      

[[Page 903]]




      

[[Page 904]]




      

[[Page 905]]




      

[[Page 906]]

                EXAMPLE EMISSION GAS RECYCLE SETUP SHEET

                          VERSION 3.1 MAY 1986

        TEST I.D.: SAMPLE SETUP                                                                                 
          RUN DATE: 11/24/86                                                                                    
         LOCATION: SOURCE SIM                                                                                   
          OPERATOR(S): RH JB                                                                                    
       NOZZLE DIAMETER (IN): .25                                                                                
                                                                                                                
                  STACK CONDITIONS:                                                                             
                                                                                                                
    AVERAGE TEMPERATURE (F): 200.0      GAS COMPOSITION.                                                        
    AVERAGE VELOCITY (FT/SEC): 15.0       H20=10.0%..............................  MD=28.84                     
    AMBIENT PRESSURE (IN HG): 29.92       02=20.9%...............................  MW=27.75                     
     STACK PRESSURE (IN H20): .10         CO2=.0%................................    (LB/LB MOLE)               
                                                                                                                


                          TARGET PRESSURE DROPS

                             TEMPERATURE (F)

DP(PTO)............             150        161        172        183        194        206        217        228
0.026..............          SAMPLE        .49        .49        .48        .47        .46        .45        .45
                              TOTAL       1.90       1.90       1.91       1.92       1.92       1.92       1.93
                            RECYCLE       2.89       2.92       2.94       2.97       3.00       3.02       3.05
                              % RCL        61%        61%        62%        62%        63%        63%        63%
                                                                                                                
 .031..............             .58        .56        .55        .55        .55        .54        .53        .52
                               1.88       1.89       1.89       1.90       1.91       1.91       1.91       1.92
                               2.71       2.74       2.77       2.80       2.82       2.85       2.88       2.90
                                57%        57%        58%        58%        59%        59%        60%        60%
                                                                                                                
 .035..............             .67        .65        .64        .63        .62        .61       .670        .59
                               1.88       1.88       1.89       1.89       1.90       1.90       1.91       1.91
                               2.57       2.60       2.63       2.66       2.69       2.72       2.74       2.74
                                54%        55%        55%        56%        56%        57%        57%        57%
                                                                                                                
 .039..............             .75        .74        .72        .71        .70        .69        .67        .66
                               1.87       1.88       1.88       1.89       1.89       1.90       1.90       1.91
                               2.44       2.47       2.50       2.53       2.56       2.59       2.62       2.65
                                51%        52%        52%        53%        53%        54%        54%        55%
                                                                                                                
                                       Figure 6. Example EGR setup sheet.                                       
                                                                                                                

      

Barometric pressure, Pbar, in. Hg...   =   ______                       
Stack static pressure, Pg, in. H2O..   =   ______                       
Average stack temperature, ts,         =   ______                       
 deg.F.                                                                 
Meter temperature, tm,  deg.F.......   =   ______                       
Gas analysis:                                                           
  %CO2..............................   =   ______                       
  %O2...............................   =   ______                       
  %N2+%CO...........................   =   ______                       
  Fraction moisture content, Bws....   =   ______                       
Calibration data:                                                       
  Nozzle diameter, Dn in............   =   ______                       
  Pitot coefficient, Cp.............   =   ______                       
  H@, in. H2O..............   =   ______                       
Molecular weight of stack gas, dry                                      
 basis:                                                                 
  Md=0.44                                                               
    (%CO2)+0.32                        =    lb/lb                       
                                             mole                       
    (%O2)+0.28                                                          
    (%N2+%CO)                                                           
Molecular weight of stack gas, wet                                      
 basis:                                                                 
  Mw=Md (1-Bws)+18Bws...............   =   ______  lb/lb mole           
Absolute stack pressure:                                                
  Ps=Pbar+(Pg/13.6)                    =   ______  in. Hg               
                                                                        


[[Page 907]]


                                                                                                                
                                                            Md (tm+460) Ps                                      
       K=846.72 Dn4 H@ Cp2 (1-Bws) 2       -----------------------------      =             ______     
                                                           Mw (ts+460) Pbar                                     
                                                                                                                


Desired meter orifice pressure (H) for velocity head of stack 
          gas (p):

H=K p=______ in. H2O

 Figure 7. Example worksheet 1, meter orifice pressure head calculation.

Barometric pressure, Pbar, in. Hg......   =   ______                    
Absolute stack pressure, Ps, in. Hg....   =   ______                    
Average stack temperature, Ts,  deg.R..   =   ______                    
Meter temperature, Tm,  deg.R..........   =   ______                    
Molecular weight of stack gas, wet        =   ______                    
 basis, Md lb/lb mole.                                                  
Pressure upstream of LFE, in. Hg.......   =      0.6                    
Gas analysis:                                                           
  %O2..................................   =   ______                    
  Fraction moisture content, Bws.......   =   ______                    
Calibration data:                                                       
  Nozzle diameter, Dn, in..............   =   ______                    
  Pitot coefficient, Cp................   =   ______                    
  Total LFE calibration constant, Xt...   =   ______                    
  Total LFE calibration constant, Tt...   =   ______                    
Absolute pressure upstream of LFE:                                      
  PLFE=Pbar+0.6........................   =   ______  in. Hg            
Viscosity of gas in total LFE:                                          
  LFE=152.418+0.2552 Tm+3.2355   =   ______                    
   x 10-5 Tm2+0.53147 (%O2).                                            
Viscosity of dry stack gas:                                             
  d=152.418+0.2552 Ts+3.2355 x   =   ______                    
   10-5 Ts2+0.53147 (%O2).                                              
                                                                        


Constants:

                                                                        
                          LFE Tm Ps0.7051                      
                                 d                             
   K1=1.5752 x 10-5   -------------------------------   =       ______  
                           PLFE Md0.2949 Ts0.7051                       
                                                                        



                                                                                                                
                      LFE Tm Dn2  Cp                        Ps                                         
    K2=0.1539    ---------------------------------    <3-ln [>   ---------   <3-ln ]>      1/2                  
                                PLFE                                 Ts                                         
                                                                                                                



                                                                        
           Bws d [1-0.2949 (1-18/Md)]+74.143 Bws               
                               (1-Bws)                                  
 K3    = --------------------------------------------------  =   ______ 
                        d-74.143 Bws                           
  ..                                                                    


                                                                        
                    K1             LFE Yt                      
          A1=   ---------    -   ------------------    =       ______   
                    Xt                180.1 Xt                          
                                                                        


                                                                        
                               K2 K3                                    
    B1           =     --------------------      =           ______     
                            (Mw) 1/2Xt                                  
                                                                        

Total LFE pressure head:
pt=A1-B1 (p) 1/2 =______ in. 
          H2O

         Figure 8. Example worksheet 2, total LFE pressure head.

Barometric pressure, Pbar, in. Hg=______
Absolute stack pressure, Ps in. Hg=______
Average stack temperature, Ts,  deg.R=______
Meter temperature, Tm,  deg.R=______
Molecular weight of stack gas, dry basis, Md, lb/lb mole=______
Viscosity of LFE gas, LFE, poise=______
Viscosity of dry stack gas, d, poise=______
Absolute pressure upstream of LFE, PPLE, in. Hg=______
    Calibration data:


[[Page 908]]


Nozzle diameter, Dn, in.=______
Pitot coefficient, Cp=______
Recycle LFE calibration constant, Xr=______
Recycle LFE calibration constant, Yr=______

                                                                        
                                  LFE Tm Ps0.7051              
                                         d                     
  K1     =      1.5752 x 10-5  ------------------------------   =______ 
                                   PLFE Md0.2949 Ts0.7051               
                                                                        



                                                                                                                
                          MLFE Tm Dn2  Cp                            Ps                                         
    K2=0.1539    ---------------------------------    <3-ln [>   ---------   <3-ln ]>      1/2                  
                                PLFE                                 Ts                                         
                                                                                                                



                                                                        
                                  d                            
   K4       =    -------------------------------------------   =______  
                  Mw0.2051 Md0.2949 (d-74.143 Bws)             
                                                                        



                                                                        
                        K1                LFE Yr               
   A2         =    -----------     -    -------------------    =______  
                        Xr                    180.1 Xr                  
                                                                        



                                                                        
                                        K4 K2                           
      B2               =       ----------------------       =______     
                                         Xr                             
                                                                        


    Pressure head for recycle LFE:

Pr=A2-B2 (p)1/2=______in. H2O

        Figure 9. Example worksheet 3, recycle LFE pressure head.

[[Page 909]]




      

[[Page 910]]

Plant___________________________________________________________________
Date____________________________________________________________________
Run no._________________________________________________________________
Filter no.______________________________________________________________
Amount liquid lost during transport_____________________________________
Acetone blank volume, ml________________________________________________
Acetone wash volume, ml (2)------(3)____________________________________
Acetone blank conc., mg/mg (Equation 5-4, Method 5)_____________________
Acetone wash blank, mg (Equation 5-5, Method 5)_________________________

------------------------------------------------------------------------
                                                 Weight of particulate  
                                                       matter, mg       
               Container number               --------------------------
                                                Final     Tare    Weight
                                                weight   weight    gain 
------------------------------------------------------------------------
1............................................  .......  .......  .......
3............................................  .......  .......  .......
  Total......................................  .......  .......  .......
                                                                --------
  Less acetone blank.........................  .......  .......  .......
                                                                --------
  Weight of PM10.............................  .......  .......  .......
2............................................  .......  .......  .......
                                                                --------
  Less acetone blank.........................  .......  .......  .......
                                                                --------
  Total particulate weight...................  .......  .......  .......
                                                                --------
------------------------------------------------------------------------

                  Figure 11. EGR method analysis sheet.

[[Page 911]]




  
  

[[Page 912]]



 Table 1. Performance Specifications for Source PM10 Cyclones and Nozzle
                              Combinations                              
------------------------------------------------------------------------
            Parameter                    Units           Specification  
------------------------------------------------------------------------
1. Collection efficiency........  Percent...........  Such that         
                                                       collection       
                                                       efficiency falls 
                                                       within envelope  
                                                       specified by     
                                                       Section 5.7.6 and
                                                       Figure 13.       
2. Cyclone cut size (D50).......  m........  101   
                                                       m       
                                                       aerodynamic      
                                                       diameter.        
------------------------------------------------------------------------


                        Table 2. Particle Sizes and Nominal Gas Velocities for Efficiency                       
----------------------------------------------------------------------------------------------------------------
                                                                       Target gas velocities (m/sec)            
               Particle size (m)a               -------------------------------------------------------
                                                          71.0  151.5  252.5
----------------------------------------------------------------------------------------------------------------
50.5........................................  ................  .................  .................
70.5........................................  ................  .................  .................
100.5.......................................  ................  .................  .................
141.0.......................................  ................  .................  .................
201.0.......................................  ................  .................  .................
----------------------------------------------------------------------------------------------------------------
(a) Mass median aerodynamic diameter.                                                                           


[[Page 913]]



  
  

[[Page 914]]

       Emission Gas Recycle, Data Reduction, Version 3.4  MAY 1986

    Test ID. Code: Chapel Hill 2.
    Test Location: Baghouse Outlet.
    Test Site: Chapel Hill.
    Test Date: 10/20/86.
    Operators(s): JB RH MH.

                            Entered Run Data

      

                                                                        
Temperatures:                                                           
    T(STK)..............................  251.0 F                       
    T(RCL)..............................  259.0 F                       
    T(LFE)..............................   81.0 F                       
    T(DGM)..............................   76.0 F                       
System Pressures:                                                       
    DH(ORI).............................  1.18 INWG                     
    DP(TOT).............................  1.91 INWG                     
    P(INL)..............................  12.15 INWG                    
    DP(RCL).............................   2.21 INWG                    
    DP(PTO).............................   0.06 INWG                    
Miscellanea:                                                            
    P(BAR)..............................  29.99 INWG                    
    DP(STK).............................  0.10 INWG                     
    V(DGM)..............................  13.744 FT3                    
    TIME................................  60.00 MIN                     
    % CO2...............................  8.00                          
    % O2................................  20.00                         
    NOZ (IN)............................  0.2500                        
Water Content:                                                          
    Estimate............................  0.0%                          
      or                                                                
    Condenser...........................  7.0 ML                        
    Column..............................  0.0 GM                        
Raw Masses:                                                             
    Cyclone 1...........................  21.7 MG                       
    Filter..............................  11.7 MG                       
    Impinger Residue....................  0.0 MG                        
Blank Values:                                                           
    CYC Rinse...........................  0.0 MG                        
    Filter Holder Rinse.................  0.0 MG                        
    Filter Blank........................  0.0 MG                        
    Impinger Rinse......................  0.0 MG                        
                                                                        

      

Calibration Values:                                                     
    CP(PITOT)................................................     0.840 
    DH@(ORI).................................................    10.980 
    M(TOT LFE)...............................................     0.2298
    B(TOT LFE)...............................................     -.0058
    M(RCL LFE)...............................................     0.0948
    B(RCL LFE)...............................................     -.0007
    DGM GAMMA................................................     0.9940
                                                                        

      

                              Reduced Data

Stack Velocity (FT/SEC)........................................  15.95  
Stack Gas Moisture (%).........................................   2.4   
Sample Flow Rate (ACFM)........................................   0.3104
Total Flow Rate (ACFM).........................................   0.5819
Recycle Flow Rate (ACFM).......................................   0.2760
Percent Recycle................................................  46.7   
Isokinetic Ratio (%)...........................................  95.1   
                                                                        

      

----------------------------------------------------------------------------------------------------------------
                                          (Particulate)                                                         
                                       ------------------    (MG/DNCM)      (GR/ACF)     (GR/DCF)     (LB/DSCF) 
                                          (UM)    (% <)                                                (X 1E6)  
----------------------------------------------------------------------------------------------------------------
Cyclone 1.............................    10.15     35.8            56.6      0.01794      0.02470       3.53701
Backup Filter.........................  .......  .......            30.5      0.00968      0.01332       1.907  
Particulate Total.....................  .......  .......            87.2      0.02762      0.03802       5.444  
----------------------------------------------------------------------------------------------------------------
Note: Figure 14. Example inputs and outputs of the EGR reduction program.                                       

  Method 201A--Determination of PM10 Emissions (Constant Sampling 
                             Rate Procedure)

                     1. Applicability and Principle

    1.1  Applicability. This method applies to the in-stack measurement 
of particulate matter (PM) emissions equal to or less than an 
aerodynamic diameter of nominally 10 (PM10) from stationary 
sources. The EPA recognizes that condensible emissions not collected by 
an in-stack method are also PM10, and that emissions that 
contribute to ambient, PM10 levels are the sum of condensible 
emissions and emissions measured by an in-stack PM10 method, such 
as this method or Method 201. Therefore, for establishing source 
contributions to ambient levels of PM10, such as for emission 
inventory purposes, EPA suggests that source PM10 measurement 
include both in-stack PM10 and condensible emissions. Condensible 
emissions may be measured by an impinger analysis in combination with 
this method.
    1.2  Principle. A gas sample is extracted at a constant flow rate 
through an in-stack sizing device, which separates PM greater than 
PM10. Variations from isokinetic sampling conditions are maintained 
within well-defined limits. The particulate mass is determined 
gravimetrically after removal of uncombined water.

                              2. Apparatus

    Note: Methods cited in this method are part of 40 CFR part 60, 
appendix A.


[[Page 915]]


    2.1  Sampling Train. A schematic of the Method 201A sampling train 
is shown in Figure 1 of this method. With the exception of the PM10 
sizing device and in-stack filter, this train is the same as an EPA 
Method 17 train.
    2.1.1  Nozzle. Stainless steel (316 or equivalent) with a sharp 
tapered leading edge. Eleven nozzles that meet the design specification 
in Figure 2 of this method are recommended. A larger number of nozzles 
with small nozzle increments increase the likelihood that a single 
nozzle can be used for the entire traverse. If the nozzles do not meet 
the design specifications in Figure 2 of this method, then the nozzles 
must meet the criteria in Section 5.2 of this method.
    2.1.2  PM10 Sizer. Stainless steel (316 or equivalent), capable 
of determining the PM10 fraction. The sizing device shall be either 
a cyclone that meets the specifications in Section 5.2 of this method or 
a cascade impactor that has been calibrated using the procedure in 
Section 5.4 of this method.
    2.1.3  Filter Holder. 63-mm, stainless steel. An Andersen filter, 
part number SE274, has been found to be acceptable for the in-stack 
filter. Note: Mention of trade names or specific products does not 
constitute endorsement by the Environmental Protection Agency.
    2.1.4  Pitot Tube. Same as in Method 5, Section 2.1.3. The pitot 
lines shall be made of heat resistant tubing and attached to the probe 
with stainless steel fittings.
    2.1.5  Probe Liner. Optional, same as in Method 5, Section 2.1.2.
    2.1.6  Differential Pressure Gauge, Condenser, Metering System, 
Barometer, and Gas Density Determination Equipment. Same as in Method 5, 
Sections 2.1.4, and 2.1.7 through 2.1.10, respectively.
    2.2  Sample Recovery.
    2.2.1  Nozzle, Sizing Device, Probe, and Filter Holder Brushes. 
Nylon bristle brushes with stainless steel wire shafts and handles, 
properly sized and shaped for cleaning the nozzle, sizing device, probe 
or probe liner, and filter holders.
    2.2.2  Wash Bottles, Glass Sample Storage Containers, Petri Dishes, 
Graduated Cylinder and Balance, Plastic Storage Containers, Funnel and 
Rubber Policeman, and Funnel. Same as in Method 5, Sections 2.2.2 
through 2.2.8, respectively.
    2.3  Analysis. Same as in Method 5, Section 2.3.

                               3. Reagents

    The reagents for sampling, sample recovery, and analysis are the 
same as that specified in Method 5, Sections 3.1, 3.2, and 3.3, 
respectively.

                              4. Procedure

    4.1  Sampling. The complexity of this method is such that, in order 
to obtain reliable results, testers should be trained and experienced 
with the test procedures.
    4.1.1  Pretest Preparation. Same as in Method 5, Section 4.1.1.
    4.1.2  Preliminary Determinations. Same as in Method 5, Section 
4.1.2, except use the directions on nozzle size selection and sampling 
time in this method. Use of any nozzle greater than 0.16 in. in diameter 
requires a sampling port diameter of 6 inches. Also, the required 
maximum number of traverse points at any location shall be 12.
    4.1.2.1  The sizing device must be in-stack or maintained at stack 
temperature during sampling. The blockage effect of the CSR sampling 
assembly will be minimal if the cross-sectional area of the sampling 
assembly is 3 percent or less of the cross-sectional area of the duct. 
If the cross-sectional area of the assembly is greater than 3 percent of 
the cross-sectional area of the duct, then either determine the pitot 
coefficient at sampling conditions or use a standard pitot with a known 
coefficient in a configuration with the CSR sampling assembly such that 
flow disturbances are minimized.
    4.1.2.2  The setup calculations can be performed by using the 
following procedures.
    4.1.2.2.1  In order to maintain a cut size of 10 m in the 
sizing device, the flow rate through the sizing device must be 
maintained at a constant, discrete value during the run. If the sizing 
device is a cyclone that meets the design specifications in Figure 3 of 
this method, use the equations in Figure 4 of this method to calculate 
three orifice heads (H): one at the average stack temperature, 
and the other two at temperatures 28  deg.C (50 
deg.F) of the average stack temperature. Use H calculated at 
the average stack temperature as the pressure head for the sample flow 
rate as long as the stack temperature during the run is within 28  deg.C 
(50  deg.F) of the average stack temperature. If the stack temperature 
varies by more than 28  deg.C (50  deg.F), then use the appropriate 
H.
    4.1.2.2.2  If the sizing device is a cyclone that does not meet the 
design specifications in Figure 3 of this method, use the equations in 
Figure 4 of this method, except use the procedures in Section 5.3 of 
this method to determine Qs, the correct cyclone flow rate for a 10 
m size.
    4.1.2.2.3  To select a nozzle, use the equations in Figure 5 of this 
method to calculate pmin and pmax for each 
nozzle at all three temperatures. If the sizing device is a cyclone that 
does not meet the design specifications in Figure 3 of this method, the 
example worksheets can be used.
    4.1.2.2.4  Correct the Method 2 pitot readings to Method 201A pitot 
readings by multiplying the Method 2 pitot readings by the

[[Page 916]]

square of a ratio of the Method 201A pitot coefficient to the Method 2 
pitot coefficient. Select the nozzle for which pmin and 
pmax bracket all of the corrected Method 2 pitot readings. 
If more than one nozzle meets this requirement, select the nozzle giving 
the greatest symmetry. Note that if the expected pitot reading for one 
or more points is near a limit for a chosen nozzle, it may be outside 
the limits at the time of the run.
    4.1.2.2.5  Vary the dwell time, or sampling time, at each traverse 
point proportionately with the point velocity. Use the equations in 
Figure 6 of this method to calculate the dwell time at the first point 
and at each subsequent point. It is recommended that the number of 
minutes sampled at each point be rounded to the nearest 15 seconds.
    4.1.3  Preparation of Collection Train. Same as in Method 5, Section 
4.1.3, except omit directions about a glass cyclone.
    4.1.4  Leak-Check Procedure. The sizing device is removed before the 
post-test leak-check to prevent any disturbance of the collected sample 
prior to analysis.
    4.1.4.1  Pretest Leak-Check. A pretest leak-check of the entire 
sampling train, including the sizing device, is required. Use the leak-
check procedure in Method 5, Section 4.1.4.1 to conduct a pretest leak-
check.
    4.1.4.2  Leak-Checks During Sample Run. Same as in Method 5, Section 
4.1.4.1.
    4.1.4.3  Post-Test Leak-Check. A leak-check is required at the 
conclusion of each sampling run. Remove the cyclone before the leak-
check to prevent the vacuum created by the cooling of the probe from 
disturbing the collected sample and use the procedure in Method 5, 
Section 4.1.4.3 to conduct a post-test leak-check.
    4.1.5  Method 201A Train Operation. Same as in Method 5, Section 
4.1.5, except use the procedures in this section for isokinetic sampling 
and flow rate adjustment. Maintain the flow rate calculated in Section 
4.1.2.2.1 of this method throughout the run provided the stack 
temperature is within 28  deg.C (50  deg.F) of the temperature used to 
calculate H. If stack temperatures vary by more than 28  deg.C 
(50  deg.F), use the appropriate H value calculated in Section 
4.1.2.2.1 of this method. Calculate the dwell time at each traverse 
point as in Figure 6 of this method.
    4.2  Sample Recovery. If a cascade impactor is used, use the 
manufacturer's recommended procedures for sample recovery. If a cyclone 
is used, use the same sample recovery as that in Method 5, Section 4.2, 
except an increased number of sample recovery containers is required.
    4.2.1  Container Number 1 (In-Stack Filter). The recovery shall be 
the same as that for Container Number 1 in Method 5, Section 4.2.
    4.2.3  Container Number 2 (Cyclone or Large PM Catch). This step is 
optional. The anisokinetic error for the cyclone PM is theoretically 
larger than the error for the PM10 catch. Therefore, adding all the 
fractions to get a total PM catch is not as accurate as Method 5 or 
Method 201. Disassemble the cyclone and remove the nozzle to recover the 
large PM catch. Quantitatively recover the PM from the interior surfaces 
of the nozzle and cyclone, excluding the ``turn around'' cup and the 
interior surfaces of the exit tube. The recovery shall be the same as 
that for Container Number 2 in Method 5, Section 4.2.
    4.2.4  Container Number 3 (PM10). Quantitatively recover the PM 
from all of the surfaces from the cyclone exit to the front half of the 
in-stack filter holder, including the ``turn around'' cup inside the 
cyclone and the interior surfaces of the exit tube. The recovery shall 
be the same as that for Container Number 2 in Method 5, Section 4.2.
    4.2.6  Container Number 4 (Silica Gel). The recovery shall be the 
same as that for Container Number 3 in Method 5, Section 4.2.
    4.2.7  Impinger Water. Same as in Method 5, Section 4.2, under 
``Impinger Water.''
    4.3  Analysis. Same as in Method 5, Section 4.3, except handle 
Method 201A Container Number 1 like Container Number 1, Method 201A 
Container Numbers 2 and 3 like Container Number 2, and Method 201A 
Container Number 4 like Container Number 3. Use Figure 7 of this method 
to record the weights of PM collected. Use Figure 5-3 in Method 5, 
Section 4.3, to record the volume of water collected.
    4.4  Quality Control Procedures. Same as in Method 5, Section 4.4.
    4.5  PM10 Emission Calculation and Acceptability of Results. 
Use the procedures in section 6 to calculate PM10 emissions and the 
criteria in section 6.3.5 to determine the acceptability of the results.

                             5. Calibration

    Maintain an accurate laboratory log of all calibrations.
    5.1  Probe Nozzle, Pitot Tube, Metering System, Probe Heater 
Calibration, Temperature Gauges, Leak-check of Metering System, and 
Barometer. Same as in Method 5, Section 5.1 through 5.7, respectively.
    5.2  Probe Cyclone and Nozzle Combinations. The probe cyclone and 
nozzle combinations need not be calibrated if both meet design 
specifications in Figures 2 and 3 of this method. If the nozzles do not 
meet design specifications, then test the cyclone and nozzle 
combinations for conformity with performance specifications (PS's) in 
Table 1 of this method. If the cyclone does not meet design 
specifications, then the cylcone and nozzle combination shall conform to 
the PS's and calibrate the cyclone to determine the relationship between 
flow rate, gas viscosity, and gas density. Use the procedures in Section 
5.2 of this method to conduct PS tests and the procedures in Section 5.3 
of this method to calibrate the cyclone. The purpose

[[Page 917]]

of the PS tests are to conform that the cyclone and nozzle combination 
has the desired sharpness of cut. Conduct the PS tests in a wind tunnel 
described in Section 5.2.1 of this method and particle generation system 
described in Section 5.2.2 of this method. Use five particle sizes and 
three wind velocities as listed in Table 2 of this method. A minimum of 
three replicate measurements of collection efficiency shall be performed 
for each of the 15 conditions listed, for a minimum of 45 measurements.
    5.2.1  Wind Tunnel. Perform the calibration and PS tests in a wind 
tunnel (or equivalent test apparatus) capable of establishing and 
maintaining the required gas stream velocities within 10 percent.
    5.2.2  Particle Generation System. The particle generation system 
shall be capable of producing solid monodispersed dye particles with the 
mass median aerodynamic diameters specified in Table 2 of this method. 
Perform the particle size distribution verification on an integrated 
sample obtained during the sampling period of each test. An acceptable 
alternative is to verify the size distribution of samples obtained 
before and after each test, with both samples required to meet the 
diameter and monodispersity requirements for an acceptable test run.
    5.2.2.1  Establish the size of the solid dye particles delivered to 
the test section of the wind tunnel by using the operating parameters of 
the particle generation system, and verify them during the tests by 
microscopic examination of samples of the particles collected on a 
membrane filter. The particle size, as established by the operating 
parameters of the generation system, shall be within the tolerance 
specified in Table 2 of this method. The precision of the particle size 
verification technique shall be at least 0.5, m, 
and particle size determined by the verification technique shall not 
differ by more than 10 percent from that established by the operating 
parameters of the particle generation system.
    5.2.2.2  Certify the monodispersity of the particles for each test 
either by microscopic inspection of collected particles on filters or by 
other suitable monitoring techniques such as an optical particle counter 
followed by a multichannel pulse height analyzer. If the proportion of 
multiplets and satellites in an aerosol exceeds 10 percent by mass, the 
particle generation system is unacceptable for the purpose of this test. 
Multiplets are particles that are agglomerated, and satellites are 
particles that are smaller than the specified size range.
    5.2.3  Schematic Drawings. Schematic drawings of the wind tunnel and 
blower system and other information showing complete procedural details 
of the test atmosphere generation, verification, and delivery techniques 
shall be furnished with calibration data to the reviewing agency.
    5.2.4  Flow Measurements. Measure the cyclone air flow rates with a 
dry gas meter and a stopwatch, or a calibrated orifice system capable of 
measuring flow rates to within 2 percent.
    5.2.5  Performance Specification Procedure. Establish test particle 
generator operation and verify particle size microscopically. If 
monodisperity is to be verified by measurements at the beginning and the 
end of the run rather than by an integrated sample, these measurements 
may be made at this time.
    5.2.5.1  The cyclone cut size, or D50, of a cyclone is defined 
here as the particle size having a 50 percent probability of 
penetration. Determine the cyclone flow rate at which D50 is 10 
m. A suggested procedure is to vary the cyclone flow rate while 
keeping a constant particle size of 10 m. Measure the PM 
collected in the cyclone (mc), the exit tube (mt), and the 
filter (mf). Calculate cyclone efficiency (Ec) for each flow 
rate as follows:

                                                                                                                
                                                              mc                                                
                                               Ec =  -------------------  x  100                                
                                                          (mc+mt+mf)                                            
                                                                                                                

    5.2.5.2.  Do three replicates and calculate the average cyclone 
efficiency [Ec(avg)] as follows:

        Ec(avg)=(E1+E2+E3)/3

Where E1, E2, and E3 are replicate measurements of 
Ec.
    5.2.5.3  Calculate the standard deviation () for the 
replicate measurements of Ec as follows:

  .......                      (E1+E2+E3)2                                             \1/2\                    
  .......      (E12+E22+E32) - ------------------                                                               
  .......  <5                          3                                            <5-ln ]>                    
            -                                                                                                   
     exceeds 0.10, repeat the replicated runs.
    5.2.5.4  Measure the overall efficiency of the cyclone and nozzle, 
Eo, at the particle sizes and nominal gas velocities in Table 2 of 
this method using the following procedure.
    5.2.5.5  Set the air velocity and particle size from one of the 
conditions in Table 2 of this method. Establish isokinetic sampling 
conditions and the correct flow rate in the

[[Page 918]]

cyclone (obtained by procedures in this section) such that the D50 
is 10 m. Sample long enough to obtain 5 percent 
precision on total collected mass as determined by the precision and the 
sensitivity of measuring technique. Determine separately the nozzle 
catch (mn), cyclone catch (mc), cyclone exit tube (Mt), 
and collection filter catch (mf) for each particle size and nominal 
gas velocity in Table 2 of this method. Calculate overall efficiency 
(Eo) as follows:

                                                                        
                                      (mn+mc)                           
     Eo            =      ------------------------------       x 100    
                                   (mn+mc+mt+mf)                        
                                                                        


    5.2.5.6  Do three replicates for each combination of gas velocity 
and particle size in Table 2 of this method. Use the equation below to 
calculate the average overall efficiency [Eo(avg)] for each 
combination following the procedures described in this section for 
determining efficiency.

        Eo(avg)=(E1+E2+E3)/3

Where E1, E2, and E3 are replicate measurements of 
Eo.

    5.2.5.7  Use the formula in Section 5.2.5.3 to calculate  
for the replicate measurements. If  exceeds 0.10 or if the 
particle sizes and nominal gas velocities are not within the limits 
specified in Table 2 of this method, repeat the replicate runs.
    5.2.6  Criteria for Acceptance. For each of the three gas stream 
velocities, plot the Eo(avg) as a function of particle size on 
Figure 8 of this method. Draw smooth curves through all particle sizes. 
Eo(avg) shall be within the banded region for all sizes, and the 
Ec(avg) shall be 500.5 percent at 10 m.
    5.3  Cyclone Calibration Procedure. The purpose of this procedure is 
to develop the relationship between flow rate, gas viscosity, gas 
density, and D50.
    5.3.1  Calculate Cyclone Flow Rate. Determine flow rates and 
D50's for three different particle sizes between 5 m and 
15 m, one of which shall be 10 m. All sizes must be 
determined within 0.5 m. For each size, use a different 
temperature within 60  deg.C (108  deg.F) of the temperature at which 
the cyclone is to be used and conduct triplicate runs. A suggested 
procedure is to keep the particle size constant and vary the flow rate.
    5.3.1.1  On log-log graph paper, plot the Reynolds number (Re) on 
the abscissa, and the square root of the Stokes 50 number 
[(Stk50)12] on the ordinate for each temperature. Use the 
following equations to compute both values:

                                                                        
                                                 4  Qcyc       
         Re                    =         -------------------------------
                                             dcyc  s  
                                                                        



                                                                        
                                    4 Qcyc (D50)2                       
 (Stk50) \1/                  -------------------------              1/2
     2\        =    <3-ln [>     9         
                                    m>s)3 (dcyc)3                       
                                                                        

where:
    Qcyc=Cyclone flow rate, cm3/sec.
    =Gas density, g/cm3.
    dcyc=Diameter of cyclone inlet, cm.
    s=Viscosity of stack gas, micropoise.
    D50=Aerodynamic diameter of a particle having a 50 percent 
probability of penetration, cm.

    5.3.1.2  Use a linear regression analysis to determine the slope (m) 
and the Y-intercept (b). Use the following formula to determine Q, the 
cyclone flow rate required for a cut size of 10 m.

                                                                                                                
                                                                   Ts                                  
          s                            <3-ln ]>-(0.5-           --------  <3-ln ]>m/                   
 Qs   = ------------- <3-ln [>   (3000)(K1)-b         m)        <3-ln [>            (m-0.5)     d(m-1.5)/(m-0.5)
              4                                                            Mw Ps                                
                                                                                                                


where:
    m=Slope of the calibration line.
    b=y-intercept of the calibration line.
    Qs=Cyclone flow rate for a cut size of 10 m, cm3/
sec.
    d=Diameter of nozzle, cm.
    Ts=Stack gas temperature, bulletR.
    Ps=Absolute stack pressure, in. Hg.
    Mw=Wet molecular weight of the stack gas, lb/1b-mole.
    K1=4.077 x 10-3.

    5.3.1.3  Refer to the Method 201A operators manual, entitled 
Application Guide for Source PM10 Measurement with Constant 
Sampling Rate, for directions in the use of this equation for Q in the 
setup calculations.
    5.4  Cascade Impactor. The purpose of calibrating a cascade impactor 
is to determine the empirical constant (STK50), which is specific 
to the impactor and which permits the accurate determination of the cut 
size of the impactor stages at field conditions. It is not necessary to 
calibrate each individual impactor. Once an impactor has been 
calibrated, the calibration data can be applied to other impactors of 
identical design.
    5.4.1  Wind Tunnel. Same as in Section 5.2.1 of this method.
    5.4.2  Particle Generation System. Same as in Section 5.2.2 of this 
method.

[[Page 919]]

    5.4.3  Hardware Configuration for Calibrations. An impaction stage 
constrains an aerosol to form circular or rectangular jets, which are 
directed toward a suitable substrate where the larger aerosol particles 
are collected. For calibration purposes, three stages of the cascade 
impactor shall be discussed and designated calibration stages 1, 2, and 
3. The first calibration stage consists of the collection substrate of 
an impaction stage and all upstream surfaces up to and including the 
nozzle. This may include other preceding impactor stages. The second and 
third calibration stages consist of each respective collection substrate 
and all upstream surfaces up to but excluding the collection substrate 
of the preceding calibration stage. This may include intervening 
impactor stages which are not designated as calibration stages. The cut 
size, or D50, of the adjacent calibration stages shall differ by a 
factor of not less than 1.5 and not more than 2.0. For example, if the 
first calibration stage has a D50 of 12 m, then the 
D50 of the downstream stage shall be between 6 and 8 m.
    5.4.3.1  It is expected, but not necessary, that the complete 
hardware assembly will be used in each of the sampling runs of the 
calibration and performance determinations. Only the first calibration 
stage must be tested under isokinetic sampling conditions. The second 
and third calibration stages must be calibrated with the collection 
substrate of the preceding calibration stage in place, so that gas flow 
patterns existing in field operation will be simulated.
    5.4.3.2  Each of the PM10 stages should be calibrated with the 
type of collection substrate, viscid material (such as grease) or glass 
fiber, used in PM10 measurements. Note that most materials used as 
substrates at elevated temperatures are not viscid at normal laboratory 
conditions. The substrate material used for calibrations should minimize 
particle bounce, yet be viscous enough to withstand erosion or 
deformation by the impactor jets and not interfere with the procedure 
for measuring the collected PM.
    5.4.4  Calibration Procedure. Establish test particle generator 
operation and verify particle size microscopically. If monodispersity is 
to be verified by measurements at the beginning and the end of the run 
rather than by an integrated sample, these measurements shall be made at 
this time. Measure in triplicate the PM collected by the calibration 
stage (m) and the PM on all surfaces downstream of the respective 
calibration stage (m') for all of the flow rates and particle size 
combinations shown in Table 2 of this method. Techniques of mass 
measurement may include the use of a dye and spectrophotometer. 
Particles on the upstream side of a jet plate shall be included with the 
substrate downstream, except agglomerates of particles, which shall be 
included with the preceding or upstream substrate. Use the following 
formula to calculate the collection efficiency (E) for each stage.
    5.4.4.1  Use the formula in Section 5.2.5.3 of this method to 
calculate the standard deviation () for the replicate 
measurements. If  exceeds 0.10, repeat the replicate runs.
    5.4.4.2  Use the following formula to calculate the average 
collection efficiency (Eavg) for each set of replicate 
measurements.

    Eavg=(E1+E2+E3)/3

where E1, E2, and E3 are replicate measurements of E.
    5.4.4.3  Use the following formula to calculate Stk for each 
Eavg.

                                                                        
                                                    D2 Q                
               Stk=                -------------------------------------
                                              9  A dj          
                                                                        

where:

D=Aerodynamic diameter of the test particle, cm (g/cm3)\1/2\.
Q=Gas flow rate through the calibration stage at inlet conditions, 
          cm3/sec.
=Gas viscosity, micropoise.
A=Total cross-sectional area of the jets of the calibration stage, 
          cm2.
dj=Diameter of one jet of the calibration stage, cm.

    5.4.4.4  Determine Stk50 for each calibration stage by plotting 
Eavg versus Stk on log-log paper. Stk50 is the Stk number at 
50 percent efficiency. Note that particle bounce can cause efficiency to 
decrease at high values of Stk. Thus, 50 percent efficiency can occur at 
multiple values of Stk. The calibration data should clearly indicate the 
value of Stk50 for minimum particle bounce. Impactor efficiency 
versus Stk with minimal particle bounce is characterized by a 
monotonically increasing function with constant or increasing slope with 
increasing Stk.
    5.4.4.5  The Stk50 of the first calibration stage can 
potentially decrease with decreasing nozzle size. Therefore, 
calibrations should be performed with enough nozzle sizes to provide a 
measured value within 25 percent of any nozzle size used in PM10 
measurements.
    5.4.5  Criteria For Acceptance. Plot Eavg for the first 
calibration stage versus the square root of the ratio of Stk to 
Stk50 on Figure 9 of this method. Draw a smooth curve through all 
of the points. The curve shall be within the banded region.

                             6. Calculations

Calculations are as specified in Method 5, sections 6.3 through 6.7, and 
6.9 through 6.11, with the addition of the following:

6.1 Nomenclature.


[[Page 920]]


    Bws=Moisture fraction of stack, by volume, dimensionless.
    C1=Viscosity constant, 51.12 micropoise for  deg.K (51.05 
micropoise for  deg.R).
    C2=Viscosity constant, 0.372 micropoise/ deg.K (0.207 
micropoise/ deg.R).
    C3=Viscosity constant, 1.05 x 10-4 micropoise/ deg.K2 
(3.24 x 10-5 micropoise/ deg.R2).
    C4=Viscosity constant, 53.147 micropoise/fraction O2.
    C5=Viscosity constant, 74.143 micropoise/fraction H2O.
    D50=Diameter of particles having a 50 percent probability of 
penetration, m.
    fo=Stack gas fraction O2, by volume, dry basis.
    K1=0.3858  deg.K/mm Hg (17.64  deg.R/in. Hg).
    Mw=Wet molecular weight of stack gas, g/g-mole (lb/lb-mole).
    Md=Dry molecular weight of stack gas, g/g-mole (1b/1b-mole).
    Pbar=Barometric pressure at sampling site, mm Hg (in. Hg).
    Ps=Absolute stack pressure, mm Hg (in. Hg).
    Qs=Total cyclone flow rate at wet cyclone conditions, m3/
min (ft3/min).
    Qs(std)=Total cyclone flow rate at standard conditions, dscm/
min (dscf/min).
    Tm=Average absolute temperature of dry meter,  deg.K ( deg.R).
    Ts=Average absolute stack gas temperature,  deg.K ( deg.R).
    Vw(std)=Volume of water vapor in gas sample (standard 
conditions), scm (scf).
    =Total sampling time, min.
    s=Viscosity of stack gas, micropoise.

    6.2  Analysis of Cascade Impactor Data. Use the manufacturer's 
recommended procedures to analyze data from cascade impactors.
    6.3  Analysis of Cyclone Data. Use the following procedures to 
analyze data from a single stage cyclone.
    6.3.1  PM10 Weight. Determine the PM catch in the PM10 
range from the sum of the weights obtained from Container Numbers 1 and 
3 less the acetone blank.
    6.3.2  Total PM Weight (optional). Determine the PM catch for 
greater than PM10 from the weight obtained from Container Number 2 
less the acetone blank, and add it to the PM10 weight.
    6.3.3  PM10 Fraction. Determine the PM10 fraction of the 
total particulate weight by dividing the PM10 particulate weight by 
the total particulate weight.
    6.3.4  Aerodynamic Cut Size. Calculate the stack gas viscosity as 
follows:

    s=C1+C2Ts+C3Ts2+C4f0
2-C5Bws

    6.3.4.1  The PM10 flow rate, at actual cyclone conditions, is 
calculated as follows:

                                                                        
               Ts                                  Vw(std)              
   Qs=    ------------  <3-ln [>     Qs(std)+  --------------  <3-ln ]> 
              K1 Ps                                           
                                                                        

    6.3.4.2  Calculate the molecular weight on a wet basis of the stack 
gas as follows:

    Mw=Md(1-Bws)+18.0(Bws)

    6.3.4.3  Calculate the actual D50 of the cyclone for the given 
conditions as follows:

                                                                                                                
                                  Ts                    0.2091                s                 0.7091 
 D50=1    <3-ln [>  ------------  <3-ln ]>  -----------  <3-ln [>  --------------  <3-ln ]>  ----------
                                 Mw Ps                                            Qs                            
                                                                                                                

where 1=0.027754 for metric units (0.15625 for English 
units).
    6.3.5  Acceptable Results. The results are acceptable if two 
conditions are met. The first is that 9.0 m  
D50  11.0 m. The second is that no sampling 
points are outside pmin and pmax, or that 80 
percent  I  120 percent and no more than one 
sampling point is outside pmin and pmax. If 
D50 is less than 9.0 m, reject the results and repeat the 
test.

                             7. Bibliography

    1. Same as Bibliography in Method 5.
    2. McCain, J.D., J.W. Ragland, and A.D. Williamson. Recommended 
Methodology for the Determination of Particle Size Distributions in 
Ducted Sources, Final Report. Prepared for the California Air Resources 
Board by Southern Research Institute. May 1986.
    3. Farthing, W.E., S.S. Dawes, A.D. Williamson, J.D. McCain, R.S. 
Martin, and J.W. Ragland. Development of Sampling Methods for Source 
PM10 Emissions. Southern Research Institute for the Environmental 
Protection Agency. April 1989. NTIS PB 89 190375, EPA/600/3-88-056.
    4. Application Guide for Source PM10 Measurement with Constant 
Sampling Rate, EPA/600/3-88-057.

[[Page 921]]




  
  

[[Page 922]]




  
  

[[Page 923]]




  
  

[[Page 924]]

    Barometric pressure,
Pbar, in. Hg= ______
    Stack static pressure,
Pg, in. H2O= ______
    Average stack temperature,
ts,  deg.F= ______
    Meter temperature, tm,  deg.F= ______
    Orifice H@, in. H2O= ______
Gas analysis:
    %CO2= ______
    %O2= ______
    %N2+%CO= ______
    Fraction moisture content,
Bws= ______
Molecular weight of stack gas, dry basis:
    Md=0.44 (%CO2)+0.32 (%O2)+0.28 (%N2+%CO)= ______ 
lb/lb mole
Molecular weight of stack gas, wet basis:
    Mw=Md (1-Bws)+18 (Bws)= ______ lb/lb mole
Absolute stack pressure:

                                                                        
                              Pg                                        
       Ps=Pbar+       ------------------         = ______ in. Hg        
                             13.6                                       
                                                                        

Viscosity of stack gas:
    s=152.418+0.2552 ts+3.2355 x 10-5 
ts2+0.53147 (%02)-74.143 Bws= ______ micropoise
Cyclone flow rate:

                                                                                                                
                                           (ts+460)                                                             
Qs=0.002837 s     <3-ln [>   -----------------    <3-ln ]>    0.2949             = ______ ft3/min      
                                            Mw Ps                                                               
                                                                                                                

    Figure 4. Example worksheet 1, cyclone flow rate and H.

Orifice pressure head (H) needed for cyclone flow rate:

                                                                                                                
                               Qs (1-Bws) Ps                 tm+460 Md 1.083 H@                                      
 H =     <3-ln [>                      <3-ln ]> 2 --------------------------      = ______ in. H2O     
                                  ts+460                              Pbar                                      
                                                                                                                

Calculate H for three temperatures:

                                                                        
                                                                        
     ts,  deg.F                                                         
------------------------------------------------------------------------
H, in. H2O                                                     
                                                                        

    Stack viscosity, s,
micropoise = ______
    Absolute stack pressure,
Ps, in. Hg = ______
    Average stack temperature,
ts,  deg.F = ______
    Meter temperature, tm,  deg.F = ______
    Method 201A pitot coefficient,
Cp = ______
    Cyclone flow rate, ft3/min,
Qs = ______
    Method 2 pitot coefficient,
Cp' = ______
    Molecular weight of stack gas, wet basis,
Mw = ______
    Nozzle diameter, Dn, in. = ______

Nozzle velocity:

                                                                        
                          3.056 Qs                                      
     vn =      -----------------------------       = ______ ft/sec      
                            Dn2                                         
                                                                        



                                                                                                                                                        
                                                                            0.2603 Qs\1/2\                                                              
                                                                              s                     1/2                                        
   vmin = vn       <5-ln [>      0.2457 +      <3-ln [>      0.3072 -   ----------------------   <3-ln ]>            <5-ln ]>        = ______ ft/sec    
                                                                                 vn1.5                                                                  
                                                                                                                                                        



                                                                                                                                                        
                                                                            0.2603 Qs\1/2\                                                              
                                                                              s                     1/2                                        
   vmax = vn       <5-ln [>      0.4457 +      <3-ln [>      0.5690 -   ----------------------   <3-ln ]>            <5-ln ]>        = ______ ft/sec    
                                                                                 vn1.5                                                                  
                                                                                                                                                        


    Maximum and minimum velocities:
    Calculate Rmin

Rmin = 0.2457 +

                                                                        
             0.2603(Qs)                                        
                  s                                            
  0.3072-   ---------------------  =____                                
                    vn1.5                                               
                                                                        

    If Rmin is less than 0.5, or if an imaginary number occurs when 
calculating Rmin, use Equation 1 to calculate vmin. Otherwise, 
use Equation 2.
    Eq. 1  vmin = vn (0.5) = ____ ft/sec
    Eq. 2  vmin =vn Rmin = ____ ft/sec

[[Page 925]]

    Calculate Rmax.

Rmax = 0.4457 +

                                                                        
                   0.2603                                               
               (Qs)                                            
  0.5690 +       s      =____                                  
            -------------------                                         
                   vn1.5                                                
                                                                        

    If Rmax is greater than 1.5, use Equation 3 to calculate 
vmax. Otherwise, use Equation 4.
    Eq. 3  vmax = vn (1.5) = ____ ft/sec
    Eq. 4  vmax =vn Rmax = ____ ft/sec

            Figure 5. Example worksheet 2, nozzle selection.

Maximum and minimum velocity head values:

                                                                                                                
                                                    Ps Mw (vmin)2                                               
     pmin = 1.3686  x  10-4      ---------------------------------            = ______ in. H2O         
                                                    (ts + 460) Cp2                                              
                                                                                                                


                                                                                                                
                                                    Ps Mw (vmax)2                                               
     pmax = 1.3686  x  10-4      ---------------------------------            = ______ in. H2O         
                                                    (ts + 460) Cp2                                              
                                                                                                                


------------------------------------------------------------------------
                     Nozzle No.                                         
------------------------------------------------------------------------
Dn, in..............................................  ...  ...  ...  ...
vn, ft/sec..........................................  ...  ...  ...  ...
vmin, ft/sec........................................  ...  ...  ...  ...
vmax, ft/sec........................................  ...  ...  ...  ...
pmin, in. H2O..............................  ...  ...  ...  ...
pmax, in. H2O..............................  ...  ...  ...  ...
------------------------------------------------------------------------

Velocity traverse data:


                                                                        
                                                       Cp               
    p(Method 201A) =  ------- <3-ln ]>   2
              D>p(Method 2)                           Cp'               
                                                                        


  Total run time, minutes = ______
Number of traverse points =

                                                                        
                    p'1             1/      (Total run time)   
                  ----------------            2 ------------------------
  t1=    <3-ln [>                  <3-ln ]>                             
                   p'avg                   (Number of points)  
                                                                        

where:
    t1=dwell time at first traverse point, minutes.
    p'1=the velocity head at the first traverse point 
(from a previous traverse), in. H20.
    p'avg=the square of the average square root of the 
p's (from a previous velocity traverse), in. H20.
At subsequent traverse points, measure the velocity p and 
          calculate the dwell time by using the following equation:

                                                                                                                
                             t1                                                                                 
      tn=       ---------------------------    (pn)1/2 , n=2,3,* * * total number of sampling points   
                     (p1)1/2                                                                           
                                                                                                                

where:
    tn=dwell time at traverse point n, minutes.
    pn=measured velocity head at point n, in. H20.
    p1=measured velocity head at point 1 in. H20.

[[Page 926]]

               Figure 6. Example worksheet 3, dwell time.

----------------------------------------------------------------------------------------------------------------
                          Port                                                                                  
   Point No.   -------------------------------------------------------------------------------------------------
                  p       t       p       t      p       t      p       t   
----------------------------------------------------------------------------------------------------------------
1.............  .............  .........  ............  ........  ............  ........  ............  ........
2.............  .............  .........  ............  ........  ............  ........  ............  ........
3.............  .............  .........  ............  ........  ............  ........  ............  ........
4.............  .............  .........  ............  ........  ............  ........  ............  ........
5.............  .............  .........  ............  ........  ............  ........  ............  ........
6.............  .............  .........  ............  ........  ............  ........  ............  ........
----------------------------------------------------------------------------------------------------------------

    Plant ______
    Date ______
    Run no. ______
    Filter no. ______
    Amount of liquid lost during
transport ______
    Acetone blank volume, ml ______
    Acetone wash volume, ml (4) ______
(5) ______
    Acetone blank conc., mg/mg (Equation 5-4,
Method 5) ______
    Acetone wash blank, mg (Equation 5-5,
Method 5) ______

------------------------------------------------------------------------
                                                 Weight of PM10 (mg)    
                                           -----------------------------
               Container No.                  Final     Tare     Weight 
                                             weight    weight     gain  
------------------------------------------------------------------------
1.........................................  ........  ........  ........
3.........................................  ........  ........  ........
                                                               ---------
    Total.................................  ........  ........  ........
                                                               ---------
    Less acetone blank....................  ........  ........  ........
                                                               ---------
    Weight of PM10........................  ........  ........  ........
------------------------------------------------------------------------

                  Figure 7. Method 201A analysis sheet.

Table 1.--Performance Specifications for Source PM10 Cyclones and Nozzle
                              Combinations                              
------------------------------------------------------------------------
            Parameter                    Units          Specifications  
------------------------------------------------------------------------
1. Collection efficiency.........  Percent.........  Such that          
                                                      collection        
                                                      efficiency falls  
                                                      within envelope   
                                                      specified by      
                                                      Section 5.2.6 and 
                                                      Figure 8.         
2. Cyclone cut size (D50)........  m......  101    
                                                      m        
                                                      aerodynamic       
                                                      diameter.         
------------------------------------------------------------------------


                       Table 2.--Particle Sizes and Nominal Gas Velocities for Efficiency                       
----------------------------------------------------------------------------------------------------------------
                                                                       Target gas velocities (m/sec)            
               Particle size (m)a               -------------------------------------------------------
                                                          71.0  151.5  252.5
----------------------------------------------------------------------------------------------------------------
50.5........................................  ................  .................  .................
70.5........................................  ................  .................  .................
100.5.......................................  ................  .................  .................
141.0.......................................  ................  .................  .................
201.0.......................................  ................  .................  .................
----------------------------------------------------------------------------------------------------------------

(a) Mass median aerodynamic diameter.

[[Page 927]]




  
  

[[Page 928]]




  
[55 FR 14249, Apr. 17, 1990; 55 FR 24687, June 18, 1990, as amended at 
55 FR 37607, Sept. 10, 1990; 56 FR 6278, Feb. 15, 1991]

[[Page 929]]

  Method 202--Determination of Condensible Particulate Emissions From 
                           Stationary Sources

                     1. Applicability and Principle

    1.1  Applicability. 1.1.1  This method applies to the determination 
of condensible particulate matter (CPM) emissions from stationary 
sources. It is intended to represent condensible matter as material that 
condenses after passing through a filter and as measured by this method 
(Note: The filter catch can be analyzed according to the appropriate 
method).
    1.1.2  This method may be used in conjunction with Method 201 or 
201A if the probes are glass-lined. Using Method 202 in conjunction with 
Method 201 or 201A, only the impinger train configuration and analysis 
is addressed by this method. The sample train operation and front end 
recovery and analysis shall be conducted according to Method 201 or 
201A.
    1.1.3  This method may also be modified to measure material that 
condenses at other temperatures by specifying the filter and probe 
temperature. A heated Method 5 out-of-stack filter may be used instead 
of the in-stack filter to determine condensible emissions at wet 
sources.
    1.2  Principle. 1.2.1  The CPM is collected in the impinger portion 
of a Method 17 (appendix A, 40 CFR part 60) type sampling train. The 
impinger contents are immediately purged after the run with nitrogen 
(N2) to remove dissolved sulfur dioxide (SO2) gases from the 
impinger contents. The impinger solution is then extracted with 
methylene chloride (MeCl2). The organic and aqueous fractions are 
then taken to dryness and the residues weighed. The total of both 
fractions represents the CPM.
    1.2.2  The potential for low collection efficiency exist at oil-
fired boilers. To improve the collection efficiency at these type of 
sources, an additional filter placed between the second and third 
impinger is recommended.

                      2. Precision and Interference

    2.1  Precision. The precision based on method development tests at 
an oil-fired boiler and a catalytic cracker were 11.7 and 4.8 percent, 
respectively.
    2.2  Interference. Ammonia. In sources that use ammonia injection as 
a control technique for hydrogen chloride (HC1), the ammonia interferes 
by reacting with HC1 in the gas stream to form ammonium chloride 
(NH4C1) which would be measured as CPM. The sample may be analyzed 
for chloride and the equivalent amount of NH4C1 can be subtracted 
from the CPM weight. However, if NH4C1 is to be counted as CPM, the 
inorganic fraction should be taken to near dryness (less than 1 ml 
liquid) in the oven and then allowed to air dry at ambient temperature 
to prevent any NH4C1 from vaporizing.

                              3. Apparatus

    3.1  Sampling Train. Same as in Method 17, section 2.1, with the 
following exceptions noted below (see Figure 202-1). Note: Mention of 
trade names or specific products does not constitute endorsement by EPA.
    3.1.1  The probe extension shall be glass-lined or Teflon.
    3.1.2  Both the first and second impingers shall be of the 
Greenburg-Smith design with the standard tip.
    3.1.3  All sampling train glassware shall be cleaned prior to the 
test with soap and tap water, water, and rinsed using tap water, water, 
acetone, and finally, MeCl2. It is important to completely remove 
all silicone grease from areas that will be exposed to the MeCl2 
during sample recovery.
    3.2  Sample Recovery. Same as in Method 17, section 2.2, with the 
following additions:
    3.2.1  N2 Purge Line. Inert tubing and fittings capable of 
delivering 0 to 28 liters/min of N2 gas to the impinger train from 
a standard gas cylinder (see Figure 202-2). Standard 0.95 cm (\3/8\-
inch) plastic tubing and compression fittings in conjunction with an 
adjustable pressure regulator and needle valve may be used.
    3.2.2  Rotameter. Capable of measuring gas flow at 20 liters/min.
    3.3  Analysis. The following equipment is necessary in addition to 
that listed in Method 17, section 2.3:
    3.3.1  Separatory Funnel. Glass, 1-liter.
    3.3.2  Weighing Tins. 350-ml.
    3.3.3  Dry Equipment. Hot plate and oven with temperature control.
    3.3.4  Pipets. 5-ml.
    3.3.5  Ion Chromatograph. Same as in Method 5F, Section 2.1.6.

                               4. Reagents

    Unless otherwise indicated, all reagents must conform to the 
specifications established by the Committee on Analytical Reagents of 
the American Chemical Society. Where such specifications are not 
available, use the best available grade.
    4.1  Sampling. Same as in Method 17, section 3.1, with the addition 
of deionized distilled water to conform to the American Society for 
Testing and Materials Specification D 1193-74, Type II and the omittance 
of section 3.1.4.
    4.2  Sample Recovery. Same as in Method 17, section 3.2, with the 
following additions:
    4.2.1  N2 Gas. Zero N2 gas at delivery pressures high 
enough to provide a flow of 20 liters/min for 1 hour through the 
sampling train.
    4.2.2  Methylene Chloride, ACS grade. Blanks shall be run prior to 
use and only

[[Page 930]]

methylene chloride with low blank values (0.001 percent) shall be used.
    4.2.3  Water. Same as in section 4.1.
    4.3  Analysis. Same as in Method 17, section 3.3, with the following 
additions:
    4.3.1  Methylene Chloride. Same as section 4.2.2.
    4.3.2  Ammonium Hydroxide. Concentrated (14.8 M) NH4OH.
    4.3.3  Water. Same as in section 4.1.
    4.3.4  Phenolphthalein. The pH indicator solution, 0.05 percent in 
50 percent alcohol.

                              5. Procedure

    5.1  Sampling. Same as in Method 17, section 4.1, with the following 
exceptions:
    5.1.1  Place 100 ml of water in the first three impingers.
    5.1.2  The use of silicone grease in train assembly is not 
recommended because it is very soluble in MeCl2 which may result in 
sample contamination. Teflon tape or similar means may be used to 
provide leak-free connections between glassware.
    5.2  Sample Recovery. Same as in Method 17, section 4.2 with the 
addition of a post-test N2 purge and specific changes in handling 
of individual samples as described below.
    5.2.1  Post-test N2 Purge for Sources Emitting SO2. (Note: 
This step is recommended, but is optional. With little or no SO2 is 
present in the gas stream, i.e., the pH of the impinger solution is 
greater than 4.5, purging has been found to be unnecessary.) As soon as 
possible after the post-test leak check, detach the probe and filter 
from the impinger train. Leave the ice in the impinger box to prevent 
removal of moisture during the purge. If necessary, add more ice during 
the purge to maintain the gas temperature below 20  deg.C. With no flow 
of gas through the clean purge line and fittings, attach it to the input 
of the impinger train (see Figure 202-2). To avoid over- or under-
pressurizing the impinger array, slowly commence the N2 gas flow 
through the line while simultaneously opening the meter box pump 
valve(s). When using the gas cylinder pressure to push the purge gas 
through the sample train, adjust the flow rate to 20 liters/min through 
the rotameter. When pulling the purge gas through the sample train using 
the meter box vacuum pump, set the orifice pressure differential to 
H@ and maintain an overflow rate through the rotameter of 
less than 2 liters/min. This will guarantee that the N2 delivery 
system is operating at greater than ambient pressure and prevents the 
possibility of passing ambient air (rather than N2) through the 
impingers. Continue the purge under these conditions for 1 hour, 
checking the rotameter and H value(s) periodically. After 1 
hour, simultaneously turn off the delivery and pumping systems.
    5.2.2  Sample Handling.
    5.2.2.1  Container Nos. 1, 2, and 3. If filter catch is to be 
determined, as detailed in Method 17, section 4.2.
    5.2.2.2  Container No. 4 (Impinger Contents). Measure the liquid in 
the first three impingers to within 1 ml using a clean graduated 
cylinder or by weighing it to within 0.5 g using a balance. Record the 
volume or weight of liquid present to be used to calculate the moisture 
content of the effluent gas. Quantitatively transfer this liquid into a 
clean sample bottle (glass or plastic); rinse each impinger and the 
connecting glassware, including probe extension, twice with water, 
recover the rinse water, and add it to the same sample bottle. Mark the 
liquid level on the bottle.
    5.2.2.3  Container No. 5 (MeCl2 Rinse). Follow the water rinses 
of each impinger and the connecting glassware, including the probe 
extension with two rinses of MeCl2; save the rinse products in a 
clean, glass sample jar. Mark the liquid level on the jar.
    5.2.2.4  Container No. 6 (Water Blank). Once during each field test, 
place 500 ml of water in a separate sample container.
    5.2.2.5  Container No. 7 (MeCl2 Blank). Once during each field 
test, place in a separate glass sample jar a volume of MeCl2 
approximately equivalent to the volume used to conduct the MeCl2 
rinse of the impingers.
    5.3  Analysis. Record the data required on a sheet such as the one 
shown in Figure 202-3. Handle each sample container as follows:
    5.3.1  Container Nos. 1, 2, and 3. If filter catch is analyzed, as 
detailed in Method 17, section 4.3.
    5.3.2  Container Nos. 4 and 5. Note the level of liquid in the 
containers and confirm on the analytical data sheet whether leakage 
occurred during transport. If a noticeable amount of leakage has 
occurred, either void the sample or use methods, subject to the approval 
of the Administrator, to correct the final results. Measure the liquid 
in Container No. 4 either volumetrically to plus-minus1 ml or 
gravimetrically to plus-minus0.5 g. Remove a 5-ml aliquot and set 
aside for later ion chromatographic (IC) analysis of sulfates. (Note: Do 
not use this aliquot to determine chlorides since the HCl will be 
evaporated during the first drying step; Section 8.2 details a procedure 
for this analysis.)
    5.3.2.1  Extraction. Separate the organic fraction of the sample by 
adding the contents of Container No. 4 (MeCl2) to the contents of 
Container No. 4 in a 1000-ml separatory funnel. After mixing, allow the 
aqueous and organic phases to fully separate, and drain off most of the 
organic/MeCl2 phase. Then add 75 ml of MeCl2 to the funnel, 
mix well, and drain off the lower organic phase. Repeat with another 75 
ml of MeCl2. This extraction should yield about 250 ml of organic 
extract. Each time, leave a small amount of the organic/MeCl2 phase 
in the separatory funnel ensuring that no water is

[[Page 931]]

collected in the organic phase. Place the organic extract in a tared 
350-ml weighing tin.
    5.3.2.2  Organic Fraction Weight Determination (Organic Phase from 
Container Nos. 4 and 5). Evaporate the organic extract at room 
temperature and pressure in a laboratory hood. Following evaporation, 
desiccate the organic fraction for 24 hours in a desiccator containing 
anhydrous calcium sulfate. Weigh to a constant weight and report the 
results to the nearest 0.1 mg.
    5.3.2.3  Inorganic Fraction Weight Determination. (Note: If 
NH4Cl is to be counted as CPM, the inorganic fraction should be 
taken to near dryness (less than 1 ml liquid) in the oven and then allow 
to air dry at ambient temperature. If multiple acid emissions are 
suspected, the ammonia titration procedure in section 8.1 may be 
preferred.) Using a hot plate, or equivalent, evaporate the aqueous 
phase to approximately 50 ml; then, evaporate to dryness in a 105  deg.C 
oven. Redissovle the residue in 100 ml of water. Add five drops of 
phenolphthalein to this solution; then, add concentrated (14.8 M) 
NH4OH until the sample turns pink. Any excess NH2OH will be 
evaporated during the drying step. Evaporate the sample to dryness in a 
105  deg.C oven, desiccate the sample for 24 hours, weigh to a constant 
weight, and record the results to the nearest 0.1 mg. (Note: The 
addition of NH4OH is recommended, but is optional when little or no 
SO2 is present in the gas stream, i.e., when the pH of the impinger 
solution is greater than 4.5, the addition of NH4OH is not 
necessary.)
    5.3.2.4  Analysis of Sulfate by IC to Determine Ammonium Ion 
(NH4+) Retained in the Sample. (Note: If NH4OH is not 
added, omit this step.) Determine the amount of sulfate in the aliquot 
taken from Container No. 4 earlier as described in Method 5F (appendix 
A, 40 CFR part 60). Based on the IC SO4-2 analysis of the 
aliquot, calculate the correction factor to subtract the NH4+ 
retained in the sample and to add the combined water removed by the 
acid-base reaction (see section 7.2).
    5.3.3  Analysis of Water and MeCl2 Blanks (Container Nos. 6 and 
7). Analyze these sample blanks as described above in sections 5.3.2.3 
and 5.3.2.2, respectively.
    5.3.4  Analysis of Acetone Blank (Container No. 8). Same as in 
Method 17, section 4.3.

                             6. Calibration

    Same as in Method 17, section 5, except for the following:
    6.1  IC Calibration. Same as Method 5F, section 5.
    6.2  Audit Procedure. Concurrently, analyze the audit sample and a 
set of compliance samples in the same manner to evaluate the technique 
of the analyst and the standards preparation. The same analyst, 
analytical reagents, and analytical system shall be used both for 
compliance samples and the EPA audit sample. If this condition is met, 
auditing of subsequent compliance analyses for the same enforcement 
agency within 30 days is not required. An audit sample set may not be 
used to validate different sets of compliance samples under the 
jurisdiction of different enforcement agencies, unless prior 
arrangements are made with both enforcement agencies.
    6.3  Audit Samples. Audit Sample Availability. Audit samples will be 
supplied only to enforcement agencies for compliance tests. The 
availability of audit samples may be obtained by writing:

Source Test Audit Coordinator (MD-77B), Quality Assurance Division, 
Atmospheric Research and Exposure Assessment Laboratory, U.S. 
Environmental Protection Agency, Research Triangle, Park, NC 27711

or by calling the Source Test Audit Coordinator (STAC) at (919) 541-
7834. The request for the audit sample must be made at least 30 days 
prior to the scheduled compliance sample analysis.
    6.4  Audit Results. Calculate the audit sample concentration 
according to the calculation procedure described in the audit 
instructions included with the audit sample. Fill in the audit sample 
concentration and the analyst's name on the audit response form included 
with the audit instructions. Send one copy to the EPA Regional Office or 
the appropriate enforcement agency and a second copy to the STAC. The 
EPA Regional Office or the appropriate enforcement agency will report 
the results of the audit to the laboratory being audited. Include this 
response with the results of the compliance samples in relevant reports 
to the EPA Regional Office or the appropriate enforcement agency.

                             7. Calculations

    Same as in Method 17, section 6, with the following additions:
    7.1  Nomenclature. Same as in Method 17, section 6.1 with the 
following additions.

Ccpm=Concentration of the CPM in the stack gas, dry basis, 
corrected to standard conditions, g/dscm (g/dscf).
CSO4=Concentration of SO4-2 in the sample, mg/ml.
mb=Sum of the mass of the water and MeCl2 blanks, mg.
mc=Mass of the NH4+ added to sample to form ammonium 
sulfate, mg.
mi=Mass of inorganic CPM matter, mg.
mo=Mass of organic CPM, mg.
mr=Mass of dried sample from inorganic fraction, mg.
Vb=Volume of aliquot taken for IC analysis, ml.
Vic=Volume of impinger contents sample, ml.

    7.2  Correction for NH4+ and H2O. Calculate the 
correction factor to subtract the

[[Page 932]]

NH4+ retained in the sample based on the IC SO4-2 
and if desired, add the combined water removed by the acid-base 
reaction.

                                                                        
  mc=K Cso2 Vic                                               Eq. 202-1 
                                                                        
                                                                        
                                                                        

where:

K=0.0205, when correcting for NH4+ and H2O.
  =0.1840, when only correcting for NH4+.

    7.3  Mass of Inorganic CPM.

                                                                        
            Vic                                                         
 mi=mr  ----------  -mc                                       Eq. 202-2 
          Vic-Vb                                                        
                                                                        

7.4
    Concentration of CPM.

                                                                        
          mo+mi-mb                                                      
 Ccpm=  ------------                                          Eq. 202-3 
            VMstd                                                       
                                                                        

                        8. Alternative Procedures

    8.1  Determination of NH4+ Retained in Sample by 
Titration.
    8.1.1  An alternative procedure to determine the amount of 
NH4+ added to the inorganic fraction by titration may be used. 
After dissolving the inorganic residue in 100 ml of water, titrate the 
solution with 0.1 N NH4OH to a pH of 7.0, as indicated by a pH 
meter. The 0.1 N NH4OH is made as follows: Add 7 ml of concentrated 
(14.8 M) NH4OH to 1 liter of water. Standardize against 
standardized 0.1 N H2SO4 and calculate the exact normality 
using a procedure parallel to that described in section 5.5 of Method 6 
(appendix A, 40 CFR part 60). Alternatively, purchase 0.1 N NH4OH 
that has been standardized against a National Institute of Standards and 
Technology reference material.
    8.1.2  Calculate the concentration of SO4-2 in the sample 
using the following equation.

                                                                        
               48.03 VtN                                                
    CSO4=    ------------                                     Eq. 202-4 
                  100                                                   
                                                                        

where

N=Normality of the NH4OH, mg/ml.
Vt=Volume of NH4OH titrant, ml.
48.03=mg/meq.
100=Volume of solution, ml.

    8.3.1  Calculate the CPM as described in section 7.
    8.2  Analysis of Chlorides by IC. At the conclusion of the final 
weighing as described in section 5.3.2.3, redissolve the inorganic 
fraction in 100 ml of water. Analyze an aliquot of the redissolved 
sample for chlorides by IC using techniques similar to those described 
in Method 5F for sulfates. Previous drying of the sample should have 
removed all HCl. Therefore, the remaining chlorides measured by IC can 
be assumed to be NH4Cl, and this weight can be subtracted from the 
weight determined for CPM.
    8.3  Air Purge to Remove SO2 from Impinger Contents. As an 
alternative to the post-test N2 purge described in section 5.2.1, 
the tester may opt to conduct the post-test purge with air at 20 liter/
min. Note: The use of an air purge is not as effective as a N2 
purge.
    8.4  Chloroform-ether Extraction. As an alternative to the methylene 
chloride extraction described in section 5.3.2.1, the tester may opt to 
conduct a chloroform-ether extraction. Note: The Chloroform-ether was 
not as effective as the MeCl2 in removing the organics, but it was 
found to be an acceptable organic extractant. Chloroform and 
diethylether of ACS grade, with low blank values (0.001 percent), shall 
be used. Analysis of the chloroform and diethylether blanks shall be 
conducted according to Section 5.3.3 for MeCl2.
    8.4.1  Add the contents of Container No. 4 to a 1000-ml separatory 
funnel. Then add 75 ml of chloroform to the funnel, mix well, and drain 
off the lower organic phase. Repeat two more times with 75 ml of 
chloroform. Then perform three extractions with 75 ml of diethylether. 
This extraction should yield approximately 450 ml of organic extraction. 
Each time, leave a small amount of the organic/MeCl2 phase in the 
separatory funnel ensuring that no water is collected in the organic 
phase.
    8.4.2  Add the contents of Container No. 5 to the organic 
extraction. Place approximately 300 ml of the organic extract in a tared 
350-ml weighing tin while storing the remaining organic extract in a 
sample container. As the organic extract evaporates, add the remaining 
extract to the weighing tin.
    8.4.3  Determine the weight of the organic phase as described in 
Section 5.3.2.2.
    8.5  Improving Collection Efficiency. If low impinger collection 
efficiency is suspected, the following procedure may be used.
    8.5.1  Place an out-of-stock filter as described in Method 8 between 
the second and third impingers.
    8.5.2  Recover and analyze the filter according to Method 17, 
Section 4.2. Include the filter holder as part of the connecting 
glassware and handle as described in sections 5.2.2.2 and 5.2.2.3.
    8.5.3  Calculate the Concentration of CPM as follows:

                                                                        
                mo+mi+mf-mb                                             
 Ccpm=  ---------------------------      Eq. 202-5                      
                   VMstd                                                
                                                                        

where:

[[Page 933]]

mf = amount of CPM collected on out-of-stack filter, mg.
    8.6  Wet Source Testing. When testing at a wet source, use a heated 
out-of-stack filter as described in Method 5.

                             9. Bibliography

    1. DeWees, W.D., S.C. Steinsberger, G.M. Plummer, L.T. Lay, G.D. 
McAlister, and R.T. Shigehara. ``Laboratory and Field Evaluation of the 
EPA Method 5 Impinger Catch for Measuring Condensible Matter from 
Stationary Sources.'' Paper presented at the 1989 EPA/AWMA International 
Symposium on Measurement of Toxic and Related Air Pollutants. Raleigh, 
North Carolina. May 1-5, 1989.
    2. DeWees, W.D. and K.C. Steinsberger. ``Method Development and 
Evaluation of Draft Protocol for Measurement of Condensible Particulate 
Emissions.'' Draft Report. November 17, 1989.
    3. Texas Air Control Board, Laboratory Division. ``Determination of 
Particulate in Stack Gases Containing Sulfuric Acid and/or Sulfur 
Dioxide.'' Laboratory Methods for Determination of Air Pollutants. 
Modified December 3, 1976.
    4. Nothstein, Greg. Masters Thesis. University of Washington. 
Department of Environmental Health. Seattle, Washington.
    5. ``Particulate Source Test Procedures Adopted by Puget Sound Air 
Pollution Control Agency Board of Directors.'' Puget Sound Air Pollution 
Control Agency, Engineering Division. Seattle, Washington. August 11, 
1983.
    6. Commonwealth of Pennsylvania, Department of Environmental 
Resources. Chapter 139, Sampling and Testing (Title 25, Rules and 
Regulations, Part I, Department of Environmental Resources, Subpart C, 
Protection of Natural Resources, Article III, Air Resources). January 8, 
1960.
    7. Wisconsin Department of Natural Resources. Air Management 
Operations Handbook, Revision 3. January 11, 1988.

[[Page 934]]




  

[[Page 935]]




  
  

[[Page 936]]

                         Moisture Determination

Volume or weight of liquid in impingers: ______ ml or g
Weight of moisture in silica gel: ______ g

                  Sample Preparation (Container No. 4)

Amount of liquid lost during transport: ______ ml
Final volume: ______ ml
pH of sample prior to analysis: ______
Addition of NH4OH required: ______
Sample extracted 2X with 75 ml MeCl2?: ______

                        For Titration of Sulfate

Normality of NH2OH: ______ N
Volume of sample titrated: ______ ml
Volume of titrant: ______ ml

                             Sample Analysis

------------------------------------------------------------------------
                                                 Weight of condensible  
                                                    particulate, mg     
               Container number               --------------------------
                                                Final     Tare    Weight
                                                weight   weight    gain 
------------------------------------------------------------------------
4 (Inorganic)................................  .......  .......  .......
4 & 5 (Organic)..............................  .......  .......  .......
------------------------------------------------------------------------

Total: ______
Less Blank: ______
Weight of Consensible Particulate:
Figure 202-3. Analytical data sheet.

 Method 205--Verification of Gas Dilution Systems for Field Instrument 
                              Calibrations

                             1. Introduction

    1.1  Applicability. A gas dilution system can provide known values 
of calibration gases through controlled dilution of high-level 
calibration gases with an appropriate dilution gas. The instrumental 
test methods in 40 CFR part 60--e.g., Methods 3A, 6C, 7E, 10, 15, 16, 
20, 25A and 25B--require on-site, multi-point calibration using gases of 
known concentrations. A gas dilution system that produces known low-
level calibration gases from high-level calibration gases, with a degree 
of confidence similar to that for Protocol \1\ gases, may be used for 
compliance tests in lieu of multiple calibration gases when the gas 
dilution system is demonstrated to meet the requirements of this method. 
The Administrator may also use a gas dilution system in order to produce 
a wide range of Cylinder Gas Audit concentrations when conducting 
performance specifications according to appendix F, 40 CFR part 60. As 
long as the acceptance criteria of this method are met, this method is 
applicable to gas dilution systems using any type of dilution 
technology, not solely the ones mentioned in this method.
    1.2  Principle. The gas dilution system shall be evaluated on one 
analyzer once during each field test. A precalibrated analyzer is 
chosen, at the discretion of the source owner or operator, to 
demonstrate that the gas dilution system produces predictable gas 
concentrations spanning a range of concentrations. After meeting the 
requirements of this method, the remaining analyzers may be calibrated 
with the dilution system in accordance to the requirements of the 
applicable method for the duration of the field test. In Methods 15 and 
16, 40 CFR part 60, appendix A, reactive compounds may be lost in the 
gas dilution system. Also, in Methods 25A and 25B, 40 CFR part 60, 
appendix A, calibration with target compounds other than propane is 
allowed. In these cases, a laboratory evaluation is required once per 
year in order to assure the Administrator that the system will dilute 
these reactive gases without significant loss.

    Note: The laboratory evaluation is required only if the source owner 
or operator plans to utilize the dilution system to prepare gases 
mentioned above as being reactive.

                            2. Specifications

    2.1  Gas Dilution System. The gas dilution system shall produce 
calibration gases whose measured values are within 2 percent 
of the predicted values. The predicted values are calculated based on 
the certified concentration of the supply gas (Protocol gases, when 
available, are recommended for their accuracy) and the gas flow rates 
(or dilution ratios) through the gas dilution system.
    2.1.1  The gas dilution system shall be recalibrated once per 
calendar year using NIST-traceable primary flow standards with an 
uncertainty 0.25 percent. A label shall be affixed at all 
times to the gas dilution system listing the date of the most recent 
calibration, the due date for the next calibration, and the person or 
manufacturer who carried out the calibration. Follow the manufacturer's 
instructions for the operation and use of the gas dilution system. A 
copy of the manufacturer's instructions for the operation of the 
instrument, as well as the most recent recalibration documentation shall 
be made available for the Administrator's inspection upon request.
    2.1.2  Some manufacturers of mass flow controllers recommend that 
flow rates below 10 percent of flow controller capacity be avoided; 
check for this recommendation and follow the manufacturer's 
instructions. One study has indicated that silicone oil from a positive 
displacement pump produces an interference in SO2 analyzers 
utilizing ultraviolet fluorescence; follow laboratory procedures similar 
to those outlined in Section 3.1 in order to demonstrate the 
significance of any resulting effect on instrument performance.

[[Page 937]]

    2.2  High-Level Supply Gas. An EPA Protocol calibration gas is 
recommended, due to its accuracy, as the high-level supply gas.
    2.3  Mid-Level Supply Gas. An EPA Protocol gas shall be used as an 
independent check of the dilution system. The concentration of the mid-
level supply gas shall be within 10 percent of one of the dilution 
levels tested in Section 3.2.

                          3. Performance Tests

    3.1  Laboratory Evaluation (Optional). If the gas dilution system is 
to be used to formulate calibration gases with reactive compounds (Test 
Methods 15, 16, and 25A/25B (only if using a calibration gas other than 
propane during the field test) in 40 CFR part 60, appendix A), a 
laboratory certification must be conducted once per calendar year for 
each reactive compound to be diluted. In the laboratory, carry out the 
procedures in Section 3.2 on the analyzer required in each respective 
test method to be laboratory certified (15, 16, or 25A and 25B for 
compounds other than propane). For each compound in which the gas 
dilution system meets the requirements in Section 3.2, the source must 
provide the laboratory certification data for the field test and in the 
test report.
    3.2  Field Evaluation (Required). The gas dilution system shall be 
evaluated at the test site with an analyzer or monitor chosen by the 
source owner or operator. It is recommended that the source owner or 
operator choose a precalibrated instrument with a high level of 
precision and accuracy for the purposes of this test. This method is not 
meant to replace the calibration requirements of test methods. In 
addition to the requirements in this method, all the calibration 
requirements of the applicable test method must also be met.
    3.2.1  Prepare the gas dilution system according to the 
manufacturer's instructions. Using the high-level supply gas, prepare, 
at a minimum, two dilutions within the range of each dilution device 
utilized in the dilution system (unless, as in critical orifice systems, 
each dilution device is used to make only one dilution; in that case, 
prepare one dilution for each dilution device). Dilution device in this 
method refers to each mass flow controller, critical orifice, capillary 
tube, positive displacement pump, or any other device which is used to 
achieve gas dilution.
    3.2.2  Calculate the predicted concentration for each of the 
dilutions based on the flow rates through the gas dilution system (or 
the dilution ratios) and the certified concentration of the high-level 
supply gas.
    3.2.3  Introduce each of the dilutions from Section 3.2.1 into the 
analyzer or monitor one at a time and determine the instrument response 
for each of the dilutions.
    3.2.4  Repeat the procedure in Section 3.2.3 two times, i.e., until 
three injections are made at each dilution level. Calculate the average 
instrument response for each triplicate injection at each dilution 
level. No single injection shall differ by more than 2 
percent from the average instrument response for that dilution.
    3.2.5  For each level of dilution, calculate the difference between 
the average concentration output recorded by the analyzer and the 
predicted concentration calculated in Section 3.2.2. The average 
concentration output from the analyzer shall be within 2 
percent of the predicted value.
    3.2.6  Introduce the mid-level supply gas directly into the 
analyzer, bypassing the gas dilution system. Repeat the procedure twice 
more, for a total of three mid-level supply gas injections. Calculate 
the average analyzer output concentration for the mid-level supply gas. 
The difference between the certified concentration of the mid-level 
supply gas and the average instrument response shall be within 
2 percent.
    3.3  If the gas dilution system meets the criteria listed in Section 
3.2, the gas dilution system may be used throughout that field test. If 
the gas dilution system fails any of the criteria listed in Section 3.2, 
and the tester corrects the problem with the gas dilution system, the 
procedure in Section 3.2 must be repeated in its entirety and all the 
criteria in Section 3.2 must be met in order for the gas dilution system 
to be utilized in the test.

                              4. References

    1. ``EPA Traceability Protocol for Assay and Certification of 
Gaseous Calibration Standards,'' EPA-600/R93/224, Revised September 
1993.

[55 FR 14249, Apr. 17, 1990; 55 FR 24687, June 18, 1990, as amended at 
55 FR 37607, Sept. 10, 1990; 56 FR 6278, Feb. 15, 1991; 56 FR 65435, 
Dec. 17, 1991; 60 FR 28054, May 30, 1995]

                       Appendices N-O--[Reserved]

     Appendix P to Part 51--Minimum Emission Monitoring Requirements

                              1.0  Purpose.

    This appendix P sets forth the minimum requirements for continuous 
emission monitoring and recording that each State Implementation Plan 
must include in order to be approved under the provisions of 40 CFR 
51.165(b). These requirements include the source categories to be 
affected; emission monitoring, recording, and reporting requirements for 
those sources; performance specifications for accuracy, reliability, and 
durability of acceptable monitoring systems; and techniques to convert 
emission data to units of the applicable State emission standard. Such 
data must be reported to the State as an indication of whether proper 
maintenance and operating procedures are being

[[Page 938]]

utilized by source operators to maintain emission levels at or below 
emission standards. Such data may be used directly or indirectly for 
compliance determination or any other purpose deemed appropriate by the 
State. Though the monitoring requirements are specified in detail, 
States are given some flexibility to resolve difficulties that may arise 
during the implementation of these regulations.

                           1.1  Applicability

    The State plan shall require the owner or operator of an emission 
source in a category listed in this appendix to: (1) Install, calibrate, 
operate, and maintain all monitoring equipment necessary for 
continuously monitoring the pollutants specified in this appendix for 
the applicable source category; and (2) complete the installation and 
performance tests of such equipment and begin monitoring and recording 
within 18 months of plan approval or promulgation. The source categories 
and the respective monitoring requirements are listed below.
    1.1.1  Fossil fuel-fired steam generators, as specified in paragraph 
2.1 of this appendix, shall be monitored for opacity, nitrogen oxides 
emissions, sulfur dioxide emissions, and oxygen or carbon dioxide.
    1.1.2  Fluid bed catalytic cracking unit catalyst regenerators, as 
specified in paragraph 2.4 of this appendix, shall be monitored for 
opacity.
    1.1.3  Sulfuric acid plants, as specified in paragraph 2.3 of this 
appendix, shall be monitored for sulfur dioxide emissions.
    1.1.4  Nitric acid plants, as specified in paragraph 2.2 of this 
appendix, shall be monitored for nitrogen oxides emissions.

                             1.2  Exemptions

    The States may include provisions within their regulations to grant 
exemptions from the monitoring requirements of paragraph 1.1 of this 
appendix for any source which is:
    1.2.1  Subject to a new source performance standard promulgated in 
40 CFR part 60 pursuant to section 111 of the Clean Air Act; or
    1.2.2  not subject to an applicable emission standard of an approved 
plan; or
    1.2.3  scheduled for retirement within 5 years after inclusion of 
monitoring requirements for the source in appendix P, provided that 
adequate evidence and guarantees are provided that clearly show that the 
source will cease operations prior to such date.

                             1.3  Extensions

    States may allow reasonable extensions of the time provided for 
installation of monitors for facilities unable to meet the prescribed 
timeframe (i.e., 18 months from plan approval or promulgation) provided 
the owner or operator of such facility demonstrates that good faith 
efforts have been made to obtain and install such devices within such 
prescribed timeframe.

                   1.4  Monitoring System Malfunction

    The State plan may provide a temporary exemption from the monitoring 
and reporting requirements of this appendix during any period of 
monitoring system malfunction, provided that the source owner or 
operator shows, to the satisfaction of the State, that the malfunction 
was unavoidable and is being repaired as expeditiously as practicable.

                   2.0  Minimum Monitoring Requirement

    States must, as a minimum, require the sources listed in paragraph 
1.1 of this appendix to meet the following basic requirements.

                 2.1  Fossil fuel-fired steam generators

    Each fossil fuel-fired steam generator, except as provided in the 
following subparagraphs, with an annual average capacity factor of 
greater than 30 percent, as reported to the Federal Power Commission for 
calendar year 1974, or as otherwise demonstrated to the State by the 
owner or operator, shall conform with the following monitoring 
requirements when such facility is subject to an emission standard of an 
applicable plan for the pollutant in question.
    2.1.1  A continuous monitoring system for the measurement of opacity 
which meets the performance specifications of paragraph 3.1.1 of this 
appendix shall be installed, calibrated, maintained, and operated in 
accordance with the procedures of this appendix by the owner or operator 
of any such steam generator of greater than 250 million BTU per hour 
heat input except where:
    2.1.1.1  gaseous fuel is the only fuel burned, or
    2.1.1.2  oil or a mixture of gas and oil are the only fuels burned 
and the source is able to comply with the applicable particulate matter 
and opacity regulations without utilization of particulate matter 
collection equipment, and where the source has never been found, through 
any administrative or judicial proceedings, to be in violation of any 
visible emission standard of the applicable plan.
    2.1.2  A continuous monitoring system for the measurement of sulfur 
dioxide which meets the performance specifications of paragraph 3.1.3 of 
this appendix shall be installed, calibrated, maintained, and operated 
on any fossil fuel-fired steam generator of greater than 250 million BTU 
per hour heat input which has installed sulfur dioxide pollutant control 
equipment.
    2.1.3  A continuous monitoring system for the measurement of 
nitrogen oxides which meets the performance specification of paragraph 
3.1.2 of this appendix shall be installed,

[[Page 939]]

calibrated, maintained, and operated on fossil fuel-fired steam 
generators of greater than 1000 million BTU per hour heat input when 
such facility is located in an Air Quality Control Region where the 
Administrator has specifically determined that a control strategy for 
nitrogen dioxide is necessary to attain the national standards, unless 
the source owner or operator demonstrates during source compliance tests 
as required by the State that such a source emits nitrogen oxides at 
levels 30 percent or more below the emission standard within the 
applicable plan.
    2.1.4  A continuous monitoring system for the measurement of the 
percent oxygen or carbon dioxide which meets the performance 
specifications of paragraphs 3.1.4 or 3.1.5 of this appendix shall be 
installed, calibrated, operated, and maintained on fossil fuel-fired 
steam generators where measurements of oxygen or carbon dioxide in the 
flue gas are required to convert either sulfur dioxide or nitrogen 
oxides continuous emission monitoring data, or both, to units of the 
emission standard within the applicable plan.

                         2.2  Nitric acid plants

    Each nitric acid plant of greater than 300 tons per day production 
capacity, the production capacity being expressed as 100 percent acid, 
located in an Air Quality Control Region where the Administrator has 
specifically determined that a control strategy for nitrogen dioxide is 
necessary to attain the national standard shall install, calibrate, 
maintain, and operate a continuous monitoring system for the measurement 
of nitrogen oxides which meets the performance specifications of 
paragraph 3.1.2 for each nitric acid producing facility within such 
plant.

                        2.3  Sulfuric acid plants

    Each Sulfuric acid plant of greater than 300 tons per day production 
capacity, the production being expressed as 100 percent acid, shall 
install, calibrate, maintain and operate a continuous monitoring system 
for the measurement of sulfur dioxide which meets the performance 
specifications of paragraph 3.1.3 for each sulfuric acid producing 
facility within such plant.

    2.4  Fluid bed catalytic cracking unit catalyst regenerators at 
                          petroleum refineries

    Each catalyst regenerator for fluid bed catalytic cracking units of 
greater than 20,000 barrels per day fresh feed capacity shall install, 
calibrate, maintain, and operate a continuous monitoring system for the 
measurement of opacity which meets the performance specifications of 
paragraph 3.1.1.

                       3.0  Minimum specifications

    All State plans shall require owners or operators of monitoring 
equipment installed to comply with this appendix, except as provided in 
paragraph 3.2, to demonstrate compliance with the following performance 
specifications.

                     3.1  Performance specifications

    The performance specifications set forth in appendix B of part 60 
are incorporated herein by reference, and shall be used by States to 
determine acceptability of monitoring equipment installed pursuant to 
this appendix except that (1) where reference is made to the 
``Administrator'' in appendix B, part 60, the term State should be 
inserted for the purpose of this appendix (e.g., in Performance 
Specification 1, 1.2, `` * * * monitoring systems subject to approval by 
the Administrator,'' should be interpreted as, ``* * * monitoring 
systems subject to approval by the State''), and (2) where reference is 
made to the ``Reference Method'' in appendix B, part 60, the State may 
allow the use of either the State approved reference method or the 
Federally approved reference method as published in part 60 of this 
chapter. The Performance Specifications to be used with each type of 
monitoring system are listed below.
    3.1.1  Continuous monitoring systems for measuring opacity shall 
comply with Performance Specification 1.
    3.1.2  Continuous monitoring systems for measuring nitrogen oxides 
shall comply with Performance Specification 2.
    3.1.3  Continuous monitoring systems for measuring sulfur dioxide 
shall comply with Performance Specification 2.
    3.1.4  Continuous monitoring systems for measuring oxygen shall 
comply with Performance Specification 3.
    3.1.5  Continuous monitoring systems for measuring carbon dioxide 
shall comply with Performance Specification 3.

                             3.2  Exemptions

    Any source which has purchased an emission monitoring system(s) 
prior to September 11, 1974, may be exempt from meeting such test 
procedures prescribed in appendix B of part 60 for a period not to 
exceed five years from plan approval or promulgation.

                         3.3  Calibration Gases

    For nitrogen oxides monitoring systems installed on fossil fuel-
fired steam generators the pollutant gas used to prepare calibration gas 
mixtures (Section 2.1, Performance Specification 2, appendix B, part 60) 
shall be nitric oxide (NO). For nitrogen oxides monitoring systems, 
installed on nitric acid plants the pollutant gas used to prepare 
calibration gas mixtures (Section 2.1, Performance Specification 2, 
appendix B, part 60 of this chapter) shall be nitrogen dioxide

[[Page 940]]

(NO2). These gases shall also be used for daily checks under 
paragraph 3.7 of this appendix as applicable. For sulfur dioxide 
monitoring systems installed on fossil fuel-fired steam generators or 
sulfuric acid plants the pollutant gas used to prepare calibration gas 
mixtures (Section 2.1, Performance Specification 2, appendix B, part 60 
of this chapter) shall be sulfur dioxide (SO2). Span and zero gases 
should be traceable to National Bureau of Standards reference gases 
whenever these reference gases are available. Every six months from date 
of manufacture, span and zero gases shall be reanalyzed by conducting 
triplicate analyses using the reference methods in appendix A, part 60 
of this chapter as follows: for sulfur dioxide, use Reference Method 6; 
for nitrogen oxides, use Reference Method 7; and for carbon dioxide or 
oxygen, use Reference Method 3. The gases may be analyzed at less 
frequent intervals if longer shelf lives are guaranteed by the 
manufacturer.

                           3.4  Cycling times

    Cycling times include the total time a monitoring system requires to 
sample, analyze and record an emission measurement.
    3.4.1  Continuous monitoring systems for measuring opacity shall 
complete a minimum of one cycle of operation (sampling, analyzing, and 
data recording) for each successive 10-second period.
    3.4.2  Continuous monitoring systems for measuring oxides of 
nitrogen, carbon dioxide, oxygen, or sulfur dioxide shall complete a 
minimum of one cycle of operation (sampling, analyzing, and data 
recording) for each successive 15-minute period.

                          3.5  Monitor location

    State plans shall require all continuous monitoring systems or 
monitoring devices to be installed such that representative measurements 
of emissions or process parameters (i.e., oxygen, or carbon dioxide) 
from the affected facility are obtained. Additional guidance for 
location of continuous monitoring systems to obtain representative 
samples are contained in the applicable Performance Specifications of 
appendix B of part 60 of this chapter.

                         3.6  Combined effluents

    When the effluents from two or more affected facilities of similar 
design and operating characteristics are combined before being released 
to the atmosphere, the State plan may allow monitoring systems to be 
installed on the combined effluent. When the affected facilities are not 
of similar design and operating characteristics, or when the effluent 
from one affected facility is released to the atmosphere through more 
than one point, the State should establish alternate procedures to 
implement the intent of these requirements.

                           3.7  Zero and drift

    State plans shall require owners or operators of all continuous 
monitoring systems installed in accordance with the requirements of this 
appendix to record the zero and span drift in accordance with the method 
prescribed by the manufacturer of such instruments; to subject the 
instruments to the manufacturer's recommended zero and span check at 
least once daily unless the manufacturer has recommended adjustments at 
shorter intervals, in which case such recommendations shall be followed; 
to adjust the zero and span whenever the 24-hour zero drift or 24-hour 
calibration drift limits of the applicable performance specifications in 
appendix B of part 60 are exceeded; and to adjust continuous monitoring 
systems referenced by paragraph 3.2 of this appendix whenever the 24-
hour zero drift or 24-hour calibration drift exceed 10 percent of the 
emission standard.

                                3.8  Span

    Instrument span should be approximately 200 per cent of the expected 
instrument data display output corresponding to the emission standard 
for the source.

              3.9  Alternative procedures and requirements

    In cases where States wish to utilize different, but equivalent, 
procedures and requirements for continuous monitoring systems, the State 
plan must provide a description of such alternative procedures for 
approval by the Administrator. Some examples of situations that may 
require alternatives follow:
    3.9.1  Alternative monitoring requirements to accommodate continuous 
monitoring systems that require corrections for stack moisture 
conditions (e.g., an instrument measuring steam generator SO2 
emissions on a wet basis could be used with an instrument measuring 
oxygen concentration on a dry basis if acceptable methods of measuring 
stack moisture conditions are used to allow accurate adjustments of the 
measured SO2 concentration to dry basis.)
    3.9.2  Alternative locations for installing continuous monitoring 
systems or monitoring devices when the owner or operator can demonstrate 
that installation at alternative locations will enable accurate and 
representative measurements.
    3.9.3  Alternative procedures for performing calibration checks 
(e.g., some instruments may demonstrate superior drift characteristics 
that require checking at less frequent intervals).
    3.9.4  Alternative monitoring requirements when the effluent from 
one affected facility

[[Page 941]]

or the combined effluent from two or more identical affected facilities 
is released to the atmosphere through more than one point (e.g., an 
extractive, gaseous monitoring system used at several points may be 
approved if the procedures recommended are suitable for generating 
accurate emission averages).
    3.9.5  Alternative continuous monitoring systems that do not meet 
the spectral response requirements in Performance Specification 1, 
appendix B of part 60, but adequately demonstrate a definite and 
consistent relationship between their measurements and the opacity 
measurements of a system complying with the requirements in Performance 
Specification 1. The State may require that such demonstration be 
performed for each affected facility.

                     4.0  Minimum data requirements

    The following paragraphs set forth the minimum data reporting 
requirements necessary to comply with Sec. 51.214(d) and (e).
    4.1  The State plan shall require owners or operators of facilities 
required to install continuous monitoring systems to submit a written 
report of excess emissions for each calendar quarter and the nature and 
cause of the excess emissions, if known. The averaging period used for 
data reporting should be established by the State to correspond to the 
averaging period specified in the emission test method used to determine 
compliance with an emission standard for the pollutant/source category 
in question. The required report shall include, as a minimum, the data 
stipulated in this appendix.
    4.2  For opacity measurements, the summary shall consist of the 
magnitude in actual percent opacity of all one-minute (or such other 
time period deemed appropriate by the State) averages of opacity greater 
than the opacity standard in the applicable plan for each hour of 
operation of the facility. Average values may be obtained by integration 
over the averaging period or by arithmetically averaging a minimum of 
four equally spaced, instantaneous opacity measurements per minute. Any 
time period exempted shall be considered before determining the excess 
averages of opacity (e.g., whenever a regulation allows two minutes of 
opacity measurements in excess of the standard, the State shall require 
the source to report all opacity averages, in any one hour, in excess of 
the standard, minus the two-minute exemption). If more than one opacity 
standard applies, excess emissions data must be submitted in relation to 
all such standards.
    4.3  For gaseous measurements the summary shall consist of emission 
averages, in the units of the applicable standard, for each averaging 
period during which the applicable standard was exceeded.
    4.4  The date and time identifying each period during which the 
continuous monitoring system was inoperative, except for zero and span 
checks, and the nature of system repairs or adjustments shall be 
reported. The State may require proof of continuous monitoring system 
performance whenever system repairs or adjustments have been made.
    4.5  When no excess emissions have occurred and the continuous 
monitoring system(s) have not been inoperative, repaired, or adjusted, 
such information shall be included in the report.
    4.6  The State plan shall require owners or operators of affected 
facilities to maintain a file of all information reported in the 
quarterly summaries, and all other data collected either by the 
continuous monitoring system or as necessary to convert monitoring data 
to the units of the applicable standard for a minimum of two years from 
the date of collection of such data or submission of such summaries.

                           5.0  Data Reduction

    The State plan shall require owners or operators of affected 
facilities to use the following procedures for converting monitoring 
data to units of the standard where necessary.
    5.1  For fossil fuel-fired steam generators the following procedures 
shall be used to convert gaseous emission monitoring data in parts per 
million to g/million cal (lb/million BTU) where necessary:
    5.1.1  When the owner or operator of a fossil fuel-fired steam 
generator elects under paragraph 2.1.4 of this appendix to measure 
oxygen in the flue gases, the measurements of the pollutant 
concentration and oxygen concentration shall each be on a dry basis and 
the following conversion procedure used:

                       E=CF [20.9/20.9--%O2]

    5.1.2  When the owner or operator elects under paragraph 2.1.4 of 
this appendix to measure carbon dioxide in the flue gases, the 
measurement of the pollutant concentration and the carbon dioxide 
concentration shall each be on a consistent basis (wet or dry) and the 
following conversion procedure used:

                       E=CFc (100/% CO2)

    5.1.3  The values used in the equations under paragraph 5.1 are 
derived as follows:

E=pollutant emission, g/million cal (lb/million BTU),
C=pollutant concentration, g/dscm (lb/dscf), determined by multiplying 
          the average concentration (ppm) for each hourly period by 
          4.16 x 10-5 M g/dscm per ppm (2.64 x 10-9 M lb/dscf 
          per ppm) where M = pollutant molecular weight, g/g-mole (lb/
          lb-mole). M = 64 for sulfur dioxide and 46 for oxides of 
          nitrogen.

[[Page 942]]

%O2, %CO2=Oxygen or carbon dioxide volume (expressed as 
          percent) determined with equipment specified under paragraph 
          4.1.4 of this appendix,
F, Fc=a factor representing a ratio of the volume of dry flue gases 
          generated to the calorific value of the fuel combusted (F), 
          and a factor representing a ratio of the volume of carbon 
          dioxide generated to the calorific value of the fuel combusted 
          (Fc) respectively. Values of F and Fc are given in 
          Sec. 60.45(f) of part 60, as applicable.

    5.2  For sulfuric acid plants the owner or operator shall:
    5.2.1  establish a conversion factor three times daily according to 
the procedures to Sec. 60.84(b) of this chapter;
    5.2.2  multiply the conversion factor by the average sulfur dioxide 
concentration in the flue gases to obtain average sulfur dioxide 
emissions in Kg/metric ton (lb/short ton); and
    5.2.3  report the average sulfur dioxide emission for each averaging 
period in excess of the applicable emission standard in the quarterly 
summary.
    5.3  For nitric acid plants the owner or operator shall:
    5.3.1  establish a conversion factor according to the procedures of 
Sec. 60.73(b) of this chapter;
    5.3.2  multiply the conversion factor by the average nitrogen oxides 
concentration in the flue gases to obtain the nitrogen oxides emissions 
in the units of the applicable standard;
    5.3.3  report the average nitrogen oxides emission for each 
averaging period in excess of the applicable emission standard, in the 
quarterly summary.
    5.4  Any State may allow data reporting or reduction procedures 
varying from those set forth in this appendix if the owner or operator 
of a source shows to the satisfaction of the State that his procedures 
are at least as accurate as those in this appendix. Such procedures may 
include but are not limited to, the following:
    5.4.1  Alternative procedures for computing emission averages that 
do not require integration of data (e.g., some facilities may 
demonstrate that the variability of their emissions is sufficiently 
small to allow accurate reduction of data based upon computing averages 
from equally spaced data points over the averaging period).
    5.4.2  Alternative methods of converting pollutant concentration 
measurements to the units of the emission standards.

                       6.0  Special Consideration

    The State plan may provide for approval, on a case-by-case basis, of 
alternative monitoring requirements different from the provisions of 
parts 1 through 5 of this appendix if the provisions of this appendix 
(i.e., the installation of a continuous emission monitoring system) 
cannot be implemented by a source due to physical plant limitations or 
extreme economic reasons. To make use of this provision, States must 
include in their plan specific criteria for determining those physical 
limitations or extreme economic situations to be considered by the 
State. In such cases, when the State exempts any source subject to this 
appendix by use of this provision from installing continuous emission 
monitoring systems, the State shall set forth alternative emission 
monitoring and reporting requirements (e.g., periodic manual stack 
tests) to satisfy the intent of these regulations. Examples of such 
special cases include, but are not limited to, the following:
    6.1  Alternative monitoring requirements may be prescribed when 
installation of a continuous monitoring system or monitoring device 
specified by this appendix would not provide accurate determinations of 
emissions (e.g., condensed, uncombined water vapor may prevent an 
accurate determination of opacity using commercially available 
continuous monitoring systems).
    6.2  Alternative monitoring requirements may be prescribed when the 
affected facility is infrequently operated (e.g., some affected 
facilities may operate less than one month per year).
    6.3  Alternative monitoring requirements may be prescribed when the 
State determines that the requirements of this appendix would impose an 
extreme economic burden on the source owner or operator.
    6.4  Alternative monitoring requirements may be prescribed when the 
State determines that monitoring systems prescribed by this appendix 
cannot be installed due to physical limitations at the facility.

[40 FR 46247, Oct. 6, 1975, as amended at 51 FR 40675, Nov. 7, 1986]

                       Appendices Q-R--[Reserved]

      Appendix S to Part 51--Emission Offset Interpretative Ruling

                             I. Introduction

    This appendix sets forth EPA's Interpretative Ruling on the 
preconstruction review requirements for stationary sources of air 
pollution (not including indirect sources) under 40 CFR subpart I and 
section 129 of the Clean Air Act Amendments of 1977, Public Law 95-95, 
(note under 42 U.S.C. 7502). A major new source or major modification 
which would locate in an area designated in 40 CFR 81.300 et seq., as 
nonattainment for a pollutant for which the source or modification would 
be major may be allowed to construct only if the stringent conditions 
set forth below are met. These conditions are designed to insure

[[Page 943]]

that the new source's emissions will be controlled to the greatest 
degree possible; that more than equivalent offsetting emission 
reductions (emission offsets) will be obtained from existing sources; 
and that there will be progress toward achievement of the NAAQS.
    For each area designated as exceeding an NAAQS (nonattainment area) 
under 40 CFR 81.300 et seq., this Interpretative Ruling will be 
superseded after June 30, 1979--(a) by preconstruction review provisions 
of the revised SIP, if the SIP meets the requirements of Part D, Title 
1, of the Act; or (b) by a prohibition on construction under the 
applicable SIP and section 110(a)(2)(I) of the Act, if the SIP does not 
meet the requirements of Part D. The Ruling will remain in effect to the 
extent not superseded under the Act. This prohibition on major new 
source construction does not apply to a source whose permit to construct 
was applied for during a period when the SIP was in compliance with Part 
D, or before the deadline for having a revised SIP in effect that 
satisfies Part D.
    The requirement of this Ruling shall not apply to any major 
stationary source or major modification that was not subject to the 
Ruling as in effect on January 16, 1979, if the owner or operator:
    A. Obtained all final Federal, State, and local preconstruction 
approvals or permits necessary under the applicable State Implementation 
Plan before August 7, 1980;
    B. Commenced construction within 18 months from August 7, 1980, or 
any earlier time required under the applicable State Implementation 
Plan; and
    C. Did not discontinue construction for a period of 18 months or 
more and completed construction within a reasonable time.

     II. Initial Screening Analyses and Determination of Applicable 
                              Requirements

    A. Definitions--For the purposes of this Ruling:
    1. Stationary source means any building, structure, facility, or 
installation which emits or may emit any air pollutant subject to 
regulation under the Act.
    2. Building, structure, facility or installation means all of the 
pollutant-emitting activities which belong to the same industrial 
grouping, are located on one or more contiguous or adjacent properties, 
and are under the control of the same person (or persons under common 
control) except the activities of any vessel. Pollutant-emitting 
activities shall be considered as part of the same industrial grouping 
if they belong to the same ``Major Group'' (i.e., which have the same 
two digit code) as described in the Standard Industrial Classification 
Manual, 1972, as amended by the 1977 Supplement (U.S. Government 
Printing Office stock numbers 4101-0066 and 003-005-00176-0, 
respectively).
    3. Potential to emit means the maximum capacity of a stationary 
source to emit a pollutant under its physical and operational design. 
Any physical or operational limitation on the capacity of the source to 
emit a pollutant, including air pollution control equipment and 
restrictions on hours of operation or on the type or amount of material 
combusted, stored, or processed, shall be treated as part of its design 
only if the limitation or the effect it would have on emissions is 
federally enforceable. Secondary emissions do not count in determining 
the potential to emit of a stationary source.
    4. (i) Major stationary source means:
    (a) Any stationary source of air pollutants which emits, or has the 
potential to emit, 100 tons per year or more of any pollutant subject to 
regulation under the Act; or
    (b) Any physical change that would occur at a stationary source not 
qualifying under paragraph 5.(i)(a) of section II of this appendix as a 
major stationary source, if the change would constitute a major 
stationary source by itself.
    (ii) A major stationary source that is major for volatile organic 
compounds shall be considered major for ozone.
    (iii) The fugitive emissions of a stationary source shall not be 
included in determining for any of the purposes of this ruling whether 
it is a major stationary source, unless the source belongs to one of the 
following categories of stationary sources:

    (a) Coal cleaning plants (with thermal dryers);
    (b) Kraft pulp mills;
    (c) Portland cement plants;
    (d) Primary zinc smelters;
    (e) Iron and steel mills;
    (f) Primary aluminum ore reduction plants;
    (g) Primary copper smelters;
    (h) Municipal incinerators capable of charging more than 250 tons of 
refuse per day;
    (i) Hydrofluoric, sulfuric, or nitric acid plants;
    (j) Petroleum refineries;
    (k) Lime plants;
    (l) Phosphate rock processing plants;
    (m) Coke oven batteries;
    (n) Sulfur recovery plants;
    (o) Carbon black plants (furnace process);
    (p) Primary lead smelters;
    (q) Fuel conversion plants;
    (r) Sintering plants;
    (s) Secondary metal production plants;
    (t) Chemical process plants;
    (u) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (v) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (w) Taconite ore processing plants;
    (x) Glass fiber processing plants;
    (y) Charcoal production plants;

[[Page 944]]

    (z) Fossil fuel-fired steam electric plants of more than 250 million 
British thermal units per hour heat input;
    (aa) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
    5. (i) Major modification means any physical change in or change in 
the method of operation of a major stationary source that would result 
in a significant net emissions increase of any pollutant subject to 
regulation under the Act.
    (ii) Any net emissions increase that is considered significant for 
volatile organic compounds shall be considered significant for ozone.
    (iii) A physical change or change in the method of operation shall 
not include:
    (a) Routine maintenance, repair, and replacement;
    (b) Use of an alternative fuel or raw material by reason of an order 
under section 2 (a) and (b) of the Energy Supply and Environmental 
Coordination Act of 1974 (or any superseding legislation) or by reason 
of a natural gas curtailment plan pursuant to the Federal Power Act;
    (c) Use of an alternative fuel by reason of an order or rule under 
section 125 of the Act;
    (d) Use of an alternative fuel at a steam generating unit to the 
extent that the fuel is generated from municipal solid waste;
    (e) Use of an alternative fuel or raw material by a stationary 
source which:
    (1) The source was capable of accommodating before December 21, 
1976, unless such change would be prohibited under any federally 
enforceable permit condition which was established after December 21, 
1976, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 
40 CFR subpart I or Sec. 51.166; or
    (2) The source is approved to use under any permit issued under this 
ruling;
    (f) An increase in the hours of operation or in the production rate, 
unless such change is prohibited under any federally enforceable permit 
condition which was established after December 21, 1976 pursuant to 40 
CFR 52.21 or under regulations approved pursuant to 40 CFR subpart I or 
Sec. 51.166;
    (g) Any change in ownership at a stationary source.
    6. (i) Net emissions increase means the amount by which the sum of 
the following exceeds zero:
    (a) Any increase in actual emissions from a particular physical 
change or change in the method of operation at a stationary source; and
    (b) Any other increases and decreases in actual emissions at the 
source that are contemporaneous with the particular change and are 
otherwise creditable.
    (ii) An increase or decrease in actual emissions is contemporaneous 
with the increase from the particular change only if it occurs between:
    (a) The date five years before construction on the particular change 
commences and
    (b) The date that the increase from the particular change occurs.
    (iii) An increase or decrease in actual emissions is creditable only 
if the Administrator has not relied on it in issuing a permit for the 
source under this Ruling which permit is in effect when the increase in 
actual emissions from the particular change occurs.
    (iv) An increase in actual emissions is creditable only to the 
extent that the new level of actual emissions exceeds the old level.
    (v) A decrease in actual emissions is creditable only to the extent 
that:
    (a) The old level of actual emissions or the old level of allowable 
emissions, whichever is lower, exceeds the new level of actual 
emissions;
    (b) It is federally enforceable at and after the time that actual 
construction on the particular change begins;
    (c) The reviewing authority has not relied on it in issuing any 
permit under regulations approved pursuant to 40 CFR 51.18; and
    (d) It has approximately the same qualitative significance for 
public health and welfare as that attributed to the increase from the 
particular change.
    (vi) An increase that results from a physical change at a source 
occurs when the emissions unit on which construction occurred becomes 
operational and begins to emit a particular pollutant. Any replacement 
unit that requires shakedown becomes operational only after a reasonable 
shakedown period, not to exceed 180 days.
    7. Emissions unit means any part of a stationary source which emits 
or would have the potential to emit any pollutant subject to regulation 
under the Act.
    8. Secondary emissions means emissions which would occur as a result 
of the construction or operation of a major stationary source or major 
modification, but do not come from the major stationary source or major 
modification itself. For the purpose of this Ruling, secondary emissions 
must be specific, well defined, quantifiable, and impact the same 
general area as the stationary source or modification which causes the 
secondary emissions. Secondary emissions include emissions from any 
offsite support facility which would not be constructed or increase its 
emissions except as a result of the construction or operation of the 
major stationary source or major modification. Secondary emissions do 
not include any emissions which come directly from a mobile source, such 
as emissions from the tailpipe of a motor vehicle, from a train, or from 
a vessel.
    9. Fugitive emissions means those emissions which could not 
reasonably pass through a stack, chimney, vent, or other functionally 
equivalent opening.

[[Page 945]]

    10. (i) Significant means, in reference to a net emissions increase 
or the potential of a source to emit any of the following pollutants, a 
rate of emissions that would equal or exceed any of the following rates:

                      Pollutant and Emissions Rate

Carbon monoxide: 100 tons per year (tpy)
Nitrogen oxides: 40 tpy
Sulfur dioxide: 40 tpy
Particulate matter: 25 tpy of particulate matter emissions
Ozone: 40 tpy of volatile organic compounds
Lead: 0.6 tpy
    11. Allowable emissions means the emissions rate calculated using 
the maximum rated capacity of the source (unless the source is subject 
to federally enforceable limits which restrict the operating rate, or 
hours of operation, or both) and the most stringent of the following:
    (i) Applicable standards as set forth in 40 CFR parts 60 and 61;
    (ii) Any applicable State Implementation Plan emissions limitation, 
including those with a future compliance date; or
    (iii) The emissions rate specified as a federally enforceable permit 
condition, including those with a future compliance date.
     12. Federally enforceable means all limitations and conditions 
which are enforceable by the Administrator, including those requirements 
developed pursuant to 40 CFR parts 60 and 61, requirements within any 
applicable State implementation plan, any permit requirements 
established pursuant to 40 CFR 52.21 or under regulations approved 
pursuant to 40 CFR part 51, subpart I, including operating permits 
issued under an EPA-approved program that is incorporated into the State 
implementation plan and expressly requires adherence to any permit 
issued under such program.
    13. (i) Actual emissions means the actual rate of emissions of a 
pollutant from an emissions unit as determined in accordance with 
paragraphs 16. (ii) through (iv) of Section II.A. of this appendix.
    (ii) In general, actual emissions as of a particular date shall 
equal the average rate, in tons per year, at which the unit actually 
emitted the pollutant during a two-year period which precedes the 
particular date and which is representative of normal source operation. 
The reviewing authority shall allow the use of a different time period 
upon a determination that it is more representative of normal source 
operation. Actual emissions shall be calculated using the unit's actual 
operating hours, production rates, and types of materials processed, 
stored or combusted during the selected time period.
    (iii) The reviewing authority may presume that source-specific 
allowable emissions for the unit are equivalent to the actual emissions 
of the unit.
    (iv) For any emissions unit which has not begun normal operations on 
the particular date, actual emissions shall equal the potential to emit 
of the unit on that date.
    14. Construction means any physical change or change in the method 
of operation (including fabrication, erection, installation, demolition, 
or modification of an emissions unit) which would result in a change in 
actual emissions.
    15. Commence as applied to construction of a major stationary source 
or major modification means that the owner or operator has all necessary 
preconstruction approvals or permits and either has:
    (i) Begun, or caused to begin, a continuous program of actual on-
site construction of the source, to be completed within a reasonable 
time; or
    (ii) Entered into binding agreements or contractual obligations, 
which cannot be cancelled or modified without substantial loss to the 
owner or operator, to undertake a program of actual construction of the 
source to be completed within a reasonable time.
    16. Necessary preconstruction approvals or permits means those 
permits or approvals required under federal air quality control laws and 
regulations and those air quality control laws and regulations which are 
part of the applicable State Implementation Plan.
    17. Begin actual construction means, in general, initiation of 
physical on-site construction activities on an emissions unit which are 
of a permanent nature. Such activities include, but are not limited to, 
installation of building supports and foundations, laying of underground 
pipework, and construction of permanent storage structures. With respect 
to a change in method of operating this term refers to those on-site 
activities other than preparatory activities which mark the initiation 
of the change.
    18. Lowest achievable emission rate means, for any source, the more 
stringent rate of emissions based on the following:
    (i) The most stringent emissions limitation which is contained in 
the implementation plan of any State for such class or category of 
stationary source, unless the owner or operator of the proposed 
stationary source demonstrates that such limitations are not achievable; 
or
    (ii) The most stringent emissions limitation which is achieved in 
practice by such class or category of stationary source. This 
limitation, when applied to a modification, means the lowest achievable 
emissions rate for the new or modified emissions units within the 
stationary source. In no event shall the application of this term permit 
a proposed new or modified stationary source to emit any pollutant in 
excess of the amount allowable under applicable new source standards of 
performance.
    19. Resource recovery facility means any facility at which solid 
waste is processed for

[[Page 946]]

the purpose of extracting, converting to energy, or otherwise separating 
and preparing solid waste for reuse. Energy conversion facilities must 
utilize solid waste to provide more than 50 percent of the heat input to 
be considered a resource recovery facility under this Ruling.
    20. Volatile organic compounds (VOC)  is as defined in 
Sec. 51.100(s) of this part.
    B. Review of all sources for emission limitation compliance. The 
reviewing authority must examine each proposed major new source and 
proposed major modification 1 to determine if such a source will 
meet all applicable emission requirements in the SIP, any applicable new 
source performance standard in 40 CFR part 60, or any national emission 
standard for hazardous air pollutants in 40 CFR part 61. If the 
reviewing authority determines that the proposed major new source cannot 
meet the applicable emission requirements, the permit to construct must 
be denied.

    1 Hereafter the term source will be used to denote both any 
source and any modification.
---------------------------------------------------------------------------

    C. Review of specified sources for air quality impact. In addition, 
the reviewing authority must determine whether the major stationary 
source or major modification would be constructed in an area designated 
in 40 CFR 81.300 et seq. as nonattainment for a pollutant for which the 
stationary source or modification is major.
    D.--E. [Reserved]
    F. Fugitive emissions sources. Section IV. A. of this Ruling shall 
not apply to a source or modification that would be a major stationary 
source or major modification only if fugitive emissions, to the extent 
quantifiable, are considered in calculating the potential to emit of the 
stationary source or modification and the source does not belong to any 
of the following categories:
    (1) Coal cleaning plants (with thermal dryers);
    (2) Kraft pulp mills;
    (3) Portland cement plants;
    (4) Primary zinc smelters;
    (5) Iron and steel mills;
    (6) Primary aluminum ore reduction plants;
    (7) Primary copper smelters;
    (8) Municipal incinerators capable of charging more than 250 tons of 
refuse per day;
    (9) Hydrofluoric, sulfuric, or nitric acid plants;
    (10) Petroleum refineries;
    (11) Lime plants;
    (12) Phosphate rock processing plants;
    (13) Coke oven batteries;
    (14) Sulfur recovery plants;
    (15) Carbon black plants (furnace process);
    (16) Primary lead smelters;
    (17) Fuel conversion plants;
    (18) Sintering plants;
    (19) Secondary metal production plants;
    (20) Chemical process plants;
    (21) Fossil-fuel boilers (or combination thereof) totaling more than 
250 million British thermal units per hour heat input;
    (22) Petroleum storage and transfer units with a total storage 
capacity exceeding 300,000 barrels;
    (23) Taconite ore processing plants;
    (24) Glass fiber processing plants;
    (25) Charcoal production plants;
    (26) Fossil fuel-fired steam electric plants of more than 250 
million British thermal units per hour heat input;
    (27) Any other stationary source category which, as of August 7, 
1980, is being regulated under section 111 or 112 of the Act.
    G. Secondary emissions. Secondary emissions need not be considered 
in determining whether the emission rates in Section II.C. above would 
be exceeded. However, if a source is subject to this Ruling on the basis 
of the direct emissions from the source, the applicable conditions of 
this Ruling must also be met for secondary emissions. However, secondary 
emissions may be exempt from Conditions 1 and 2 of Section IV. Also, 
since EPA's authority to perform or require indirect source review 
relating to mobile sources regulated under Title II of the Act (motor 
vehicles and aircraft) has been restricted by statute, consideration of 
the indirect impacts of motor vehicles and aircraft traffic is not 
required under this Ruling.

III. Sources Locating in Designated Clean or Unclassifiable Areas Which 
   Would Cause or Contribute to a Violation of a National Ambient Air 
                            Quality Standard

    A. This section applies only to major sources or major modifications 
which would locate in an area designated in 40 CFR 81.300 et seq. as 
attainment or unclassifiable in a state where EPA has not yet approved 
the state preconstruction review program required by 40 CFR 51.165(b), 
if the source or modification would exceed the following significance 
levels at any locality that does not meet the NAAQS:


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                Averaging time (hours)                                  
             Pollutant                       Annual         --------------------------------------------------------------------------------------------
                                                                       24                      8                      3                      1          
--------------------------------------------------------------------------------------------------------------------------------------------------------
SO2................................  1.0 g/m3.....  5 g/m3.......  .....................  25 g/m3.....  .....................

[[Page 947]]

                                                                                                                                                        
TSP................................  1.0 g/m3.....  5 g/m3.......  .....................  .....................  .....................
NO2................................  1.0 g/m3.....  ......................  .....................  .....................  .....................
CO.................................  ......................  ......................  0.5 mg/m3............  .....................  2 mg/m3.             
--------------------------------------------------------------------------------------------------------------------------------------------------------

    B. Sources to which this section applies must meet Conditions 1, 2, 
and 4 of Section IV.A. of this ruling.\2\ However, such sources may be 
exempt from Condition 3 of Section IV.A. of this ruling.
---------------------------------------------------------------------------

    \2\ The discussion in this paragraph is a proposal, but represents 
EPA's interim policy until final rulemaking is completed.
---------------------------------------------------------------------------

    C. Review of specified sources for air quality impact. For stable 
air pollutants (i.e. SO2, particulate matter and CO), the 
determination of whether a source will cause or contribute to a 
violation of an NAAQS generally should be made on a case-by-case basis 
as of the proposed new source's start-up date using the source's 
allowable emissions in an atmospheric simulation model (unless a source 
will clearly impact on a receptor which exceeds an NAAQS).
    For sources of nitrogen oxides, the initial determination of whether 
a source would cause or contribute to a violation of the NAAQS for 
NO2 should be made using an atmospheric simulation model assuming 
all the nitric oxide emitted is oxidized to NO2 by the time the 
plume reaches ground level. The initial concentration estimates may be 
adjusted if adequate data are available to account for the expected 
oxidation rate.
    For ozone, sources of volatile organic compounds, locating outside a 
designated ozone nonattainment area, will be presumed to have no 
significant impact on the designated nonattainment area. If ambient 
monitoring indicates that the area of source location is in fact 
nonattainment, then the source may be permitted under the provisions of 
any state plan adopted pursuant to section 110(a)(2)(D) of the Act until 
the area is designated nonattainment and a State Implementation Plan 
revision is approved. If no state plan pursuant to section 110(a)(2)(D) 
has been adopted and approved, then this Ruling shall apply.
    As noted above, the determination as to whether a source would cause 
or contribute to a violation of an NAAQS should be made as of the new 
source's start-up date. Therefore, if a designated nonattainment area is 
projected to be an attainment area as part of an approved SIP control 
strategy by the new source start-up date, offsets would not be required 
if the new source would not cause a new violation.
    D. Sources locating in clean areas, but would cause a new violating 
of an NAAQS. If the reviewing authority finds that the emissions from a 
proposed source would cause a new violation of an NAAQS, but would not 
contribute to an existing violation, approval may be granted only if 
both of the following conditions are met:
    Condition 1. The new source is required to meet a more stringent 
emission limitation\3\ and/or the control of existing sources below 
allowable levels is required so that the source will not cause a 
violation of any NAAQS.
---------------------------------------------------------------------------

    \3\ If the reviewing authority determines that technological or 
economic limitations on the application of measurement methodology to a 
particular class of sources would make the imposition of an enforceable 
numerical emission standard infeasible, the authority may instead 
prescribe a design, operational or equipment standard. In such cases, 
the reviewing authority shall make its best estimate as to the emission 
rate that will be achieved and must specify that rate in the required 
submission to EPA (see Part V). Any permits issued without an 
enforceable numerical emission standard must contain enforceable 
conditions which assure that the design characteristics or equipment 
will be properly maintained (or that the operational conditions will be 
properly performed) so as to continuously achieve the assumed degree of 
control. Such conditions shall be enforceable as emission limitations by 
private parties under section 304. Hereafter, the term emission 
limitation shall also include such design, operational, or equipment 
standards.
---------------------------------------------------------------------------

    Condition 2. The new emission limitations for the new source as well 
as any existing sources affected must be enforceable in accordance with 
the mechanisms set forth in Section V of this appendix.

    IV. Sources That Would Locate in a Designated Nonattainment Area

    A. Conditions for approval. If the reviewing authority finds that 
the major stationary source or major modification would be constructed 
in an area designated in 40 CFR 81.300 et seq as nonattainment for a 
pollutant for which the stationary source or modification is major, 
approval may be granted only if the following conditions are met:

[[Page 948]]

    Condition 1. The new source is required to meet an emission 
Limitation\4\ which specifies the lowest achievable emission rate for 
such source.\5\
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    \4\ If the reviewing authority determines that technological or 
economic limitations on the application of measurement methodology to a 
particular class of sources would make the imposition of an enforceable 
numerical emission standard infeasible, the authority may instead 
prescribe a design, operational or equipment standard. In such cases, 
the reviewing authority shall make its best estimate as to the emission 
rate that will be achieved and must specify that rate in the required 
submission to EPA (see Part V). Any permits issued without an 
enforceable numerical emission standard must contain enforceable 
conditions which assure that the design characteristics or equipment 
will be properly maintained (or that the operational conditions will be 
properly performed) so as to continuously achieve the assumed degree of 
control. Such conditions shall be enforceable as emission limitations by 
private parties under section 304. Hereafter, the term emission 
limitation shall also include such design, operational, or equipment 
standards.
    \5\ Required only for those pollutants for which the increased 
allowable emissions exceed 50 tons per year, 1000 pounds per day, or 100 
pounds per hour, although the reviewing authority may address other 
pollutants if deemed appropriate. The preceding hourly and daily rates 
shall apply only with respect to a pollutant for which a national 
ambient air quality standard, for a period less than 24 hours or for a 
24-hour period, as appropriate, has been established.
---------------------------------------------------------------------------

    Condition 2. The applicant must certify that all existing major 
sources owned or operated by the applicant (or any entity controlling, 
controlled by, or under common control with the appplicant) in the same 
State as the proposed source are in compliance with all applicable 
emission limitations and standards under the Act (or are in compliance 
with an expeditious schedule which is Federally enforceable or contained 
in a court decree).
    Condition 3. Emission reductions (offsets) from existing sources\6\ 
in the area of the proposed source (whether or not under the same 
ownership) are required such that there will be reasonable progress 
toward attainment of the applicable NAAQs.\7\
---------------------------------------------------------------------------

    \6\ Subject to the provisions of section IV.C. below.
    \7\ The discussion in this paragraph is a proposal, but represents 
EPA's interim policy until final rulemaking is completed.
---------------------------------------------------------------------------

    Only intrapollutant emission offsets will be acceptable (e.g., 
hydrocarbon increases may not be offset against SO2 reductions).
    Condition 4. The emission offsets will provide a positive net air 
quality benefit in the affected area (see Section IV.D. below).\8\ 
Atmospheric simulation modeling is not necessary for volatile organic 
compounds and NOx. Fulfillment of Condition 3 and Section IV.D. 
will be considered adequate to meet this condition.
---------------------------------------------------------------------------

    \8\ Required only for those pollutants for which the increased 
allowable emissions exceed 50 tons per year, 1000 pounds per day, or 100 
pounds per hour, although the reviewing authority may address other 
pollutants if deemed appropriate. The preceding hourly and daily rates 
shall apply only with respect to a pollutant for which a national 
ambient air quality standard, for a period less than 24 hours or for a 
24-hour period, as appropriate, has been established.
---------------------------------------------------------------------------

    B. Exemptions from certain conditions. The reviewing authority may 
exempt the following sources from Condition 1 under Section III or 
Conditions 3 and 4. Section IV.A.:
    (i) Resource recovery facilities burning municipal solid waste, and 
(ii) sources which must switch fuels due to lack of adequate fuel 
supplies or where a source is required to be modified as a result of EPA 
regulations (e.g., lead-in-fuel requirements) and no exemption from such 
regulation is available to the source. Such an exemption may be granted 
only if:
    1. The applicant demonstrates that it made its best efforts to 
obtain sufficient emission offsets to comply with Condition 1 under 
Section III or Conditions 3 and 4 under Section IV.A. and that such 
efforts were unsuccessful;
    2. The applicant has secured all available emission offsets; and
    3. The applicant will continue to seek the necessary emission 
offsets and apply them when they become available.
    Such an exemption may result in the need to revise the SIP to 
provide additional control of existing sources.
    Temporary emission sources, such as pilot plants, portable 
facilities which will be relocated outside of the nonattainment area 
after a short period of time, and emissions resulting from the 
construction phase of a new source, are exempt from Conditions 3 and 4 
of this section.
    C. Baseline for determining credit for emission and air quality 
offsets. The baseline for determining credit for emission and air 
quality offsets will be the SIP emission limitations in effect at the 
time the application to construct or modify a source is filed. Thus, 
credit for emission offset purposes may be allowable for existing 
control that goes beyond that required by the SIP. Emission offsets 
generally should be made on a pounds per hour basis when all facilities 
involved in the emission offset calculations are operating at

[[Page 949]]

their maximum expected or allowed production rate. The reviewing agency 
should specify other averaging periods (e.g., tons per year) in addition 
to the pounds per hour basis if necessary to carry out the intent of 
this Ruling. When offsets are calculated on a tons per year basis, the 
baseline emissions for existing sources providing the offsets should be 
calculated using the actual annual operating hours for the previous one 
or two year period (or other appropriate period if warranted by cyclical 
business conditions). Where the SIP requires certain hardware controls 
in lieu of an emission limitation (e.g., floating roof tanks for 
petroleum storage), baseline allowable emissions should be based on 
actual operating conditions for the previous one or two year period 
(i.e., actual throughput and vapor pressures) in conjunction with the 
required hardware controls.
    1. No meaningful or applicable SIP requirement. Where the applicable 
SIP does not contain an emission limitation for a source or source 
category, the emission offset baseline involving such sources shall be 
the actual emissions determined in accordance with the discussion above 
regarding operating conditions.
    Where the SIP emission limit allows greater emissions than the 
uncontrolled emission rate of the source (as when a State has a single 
particulate emission limit for all fuels), emission offset credit will 
be allowed only for control below the uncontrolled emission rate.
    2. Combustion of fuels. Generally, the emissions for determining 
emission offset credit involving an existing fuel combustion source will 
be the allowable emissions under the SIP for the type of fuel being 
burned at the time the new source application is filed (i.e., if the 
existing source has switched to a different type of fuel at some earlier 
date, any resulting emission reduction [either actual or allowable] 
shall not be used for emission offset credit). If the existing source 
commits to switch to a cleaner fuel at some future date, emission offset 
credit based on the allowable emissions for the fuels involved is not 
acceptable unless the permit is conditioned to require the use of a 
specified alternative control measure which would achieve the same 
degree of emission reduction should the source switch back to a dirtier 
fuel at some later date. The reviewing authority should ensure that 
adequate long-term supplies of the new fuel are available before 
granting emission offset credit for fuel switches.
    3. (i) Operating hours and source shutdown.
    A source may generally be credited with emissions reductions 
achieved by shutting down an existing source or permanently curtailing 
production or operating hours below baseline levels (see initial 
discussion in this Section IV.C), if such reductions are permanent, 
quantifiable, and federally enforceable, and if the area has an EPA-
approved attainment plan. In addition, the shutdown or curtailment is 
creditable only if it occurred on or after the date specified for this 
purpose in the plan, and if such date is on or after the date of the 
most recent emissions inventory used in the plan's demonstration of 
attainment. Where the plan does not specify a cutoff date for shutdown 
credits, the date of the most recent emissions inventory or attainment 
demonstration, as the case may be, shall apply. However, in no event may 
credit be given for shutdowns which occurred prior to August 7, 1977. 
For purposes of this paragraph, a permitting authority may choose to 
consider a prior shutdown or curtailment to have occurred after the date 
of its most recent emissions inventory, if the inventory explicitly 
includes as current ``existing'' emissions the emissions from such 
previously shutdown or curtailed sources.
    (ii) Such reductions may be credited in the absence of an approved 
attainment demonstration only if the shutdown or curtailment occurred on 
or after the date the new source application is filed, or, if the 
applicant can establish that the proposed new source is a replacement 
for the shutdown or curtailed source and the cutoff date provisions of 
section IV.C.3.(i) are observed.
    4. Credit for VOC substitution. As set forth in the Agency's 
``Recommended Policy on Control of Volatile Organic Compounds'' (42 FR 
35314, July 8, 1977), EPA has found that almost all non-methane VOCs are 
photochemically reactive and that low reactivity VOCs eventually form as 
much ozone as the highly reactive VOCs. Therefore, no emission offset 
credit may be allowed for replacing one VOC compound with another of 
lesser reactivity, except for those compounds listed in Table 1 of the 
above policy statement.
    5. ``Banking'' of emission offset credit. For new sources obtaining 
permits by applying offsets after January 16, 1979, the reviewing 
authority may allow offsets that exceed the requirements of reasonable 
progress toward attainment (Condition 3) to be ``banked'' (i.e., saved 
to provide offsets for a source seeking a permit in the future) for use 
under this Ruling. Likewise, the reviewing authority may allow the owner 
of an existing source that reduces its own emissions to bank any 
resulting reductions beyond those required by the SIP for use under this 
Ruling, even if none of the offsets are applied immediately to a new 
source permit. A reviewing authority may allow these banked offsets to 
be used under the preconstruction review program required by Part D, as 
long as these banked emissions are identified and accounted for in the 
SIP control strategy. A reviewing authority may not approve the 
construction of a source using banked offsets if the new source would 
interfere with the SIP control strategy or if such use would

[[Page 950]]

violate any other condition set forth for use of offsets. To preserve 
banked offsets, the reviewing authority should identify them in either a 
SIP revision or a permit, and establish rules as to how and when they 
may be used.
    6. Offset credit for meeting NSPS or NESHAPS. Where a source is 
subject to an emission limitation established in a New Source 
Performance Standard (NSPS) or a National Emission Standard for 
Hazardous Air Pollutants (NESHAPS), (i.e., requirements under sections 
111 and 112, respectively, of the Act), and a different SIP limitation, 
the more stringent limitation shall be used as the baseline for 
determining credit for emission and air quality offsets. The difference 
in emissions between the SIP and the NSPS or NESHAPS, for such source 
may not be used as offset credit. However, if a source were not subject 
to an NSPS or NESHAPS, for example if its construction had commenced 
prior to the proposal of an NSPS or NESHAPS for that source category, 
offset credit can be permitted for tightening the SIP to the NSPS or 
NESHAPS level for such source.
    D. Location of offsetting emissions. In the case of emission offsets 
involving volatile organic compounds (VOC), the offsets may be obtained 
from sources located anywhere in the broad vicinity of the proposed new 
source. Generally, offsets will be acceptable if obtained from within 
the same AQCR as the new source or from other areas which may be 
contributing to the ozone problem at the proposed new source location. 
As with other pollutants, it is desirable to obtain offsets from sources 
located as close to the proposed new source site as possible. If the 
proposed offsets would be from sources located at greater distances from 
the new source, the reviewing authority should increase the ratio of the 
required offsets and require a showing that nearby offsets were 
investigated and reasonable alternatives were not available.9
---------------------------------------------------------------------------

    9 The discussion in this paragraph is a proposal, but represents 
EPA's interim policy until final rulemaking is completed.
---------------------------------------------------------------------------

    Offsets for NOx!sources may also be obtained within the broad 
vicinity of the proposed new source. This is because areawide ozone and 
NO2 levels are generally not as dependent on specific VOC or 
NOx source location as they are on overall area emissions. Since 
the air quality impact of SO2, particulate and carbon monoxide 
sources is site dependent, simple areawide mass emission offsets are not 
appropriate. For these pollutants, the reviewing authority should 
consider atmospheric simulation modeling to ensure that the emission 
offsets provide a positive net air quality benefit. However, to avoid 
unnecessary consumption of limited, costly and time consuming modeling 
resources, in most cases it can be assumed that if the emission offsets 
are obtained from an existing source on the same premises or in the 
immediate vicinity of the new source, and the pollutants disperse from 
substantially the same effective stack height, the air quality test 
under Condition 4 of Section IV.A. of this appendix will be met. Thus, 
when stack emissions are offset against a ground level source at the 
same site, modeling would be required. The reviewing authority may 
perform this analysis or require the applicant to submit appropriate 
modeling results.
    E. Reasonable progress towards attainment. As long as the emission 
offset is greater than one-for-one, and the other criteria set forth 
above are met, EPA does not intend to question a reviewing authority's 
judgment as to what constitutes reasonable progress towards attainment 
as required under Condition 3 in Section IV.A. of this appendix. This 
does not apply to ``reasonable further progress'' as required by Section 
173.
    F. Source obligation. At such time that a particular source or 
modification becomes a major stationary source or major modification 
solely by virtue of a relaxation in any enforceable limitation which was 
established after August 7, 1980, on the capacity of the source or 
modification otherwise to emit a pollutant, such as a restriction on 
hours of operation, then the requirements of this Ruling shall apply to 
the source or modification as though construction had not yet commenced 
on the source or modification.

                      V. Administrative Procedures

    The necessary emission offsets may be proposed either by the owner 
of the proposed source or by the local community or the State. The 
emission reduction committed to must be enforceable by authorized State 
and/or local agencies and under the Clean Air Act, and must be 
accomplished by the new source's start-up date. If emission reductions 
are to be obtained in a State that neighbors the State in which the new 
source is to be located, the emission reductions committed to must be 
enforceable by the neighboring State and/or local agencies and under the 
Clean Air Act. Where the new facility is a replacement for a facility 
that is being shut down in order to provide the necessary offsets, the 
reviewing authority may allow up to 180 days for shakedown of the new 
facility before the existing facility is required to cease operation.
    A. Source initiated emission offsets. A source may propose emission 
offsets which involve:
    (1) Reductions from sources controlled by the source owner (internal 
emission offsets); and/or (2) reductions from neighboring sources 
(external emission offsets). The source does not have to investigate all 
possible emission offsets. As long as the emission offsets obtained 
represent reasonable

[[Page 951]]

progress toward attainment, they will be acceptable. It is the reviewing 
authority's responsibility to assure that the emission offsets will be 
as effective as proposed by the source. An internal emission offset will 
be considered enforceable if it is made a SIP requirement by inclusion 
as a condition of the new source permit and the permit is forwarded to 
the appropriate EPA Regional Office.10 An external emission offset 
will not be enforceable unless the affected source(s) providing the 
emission reductions is subject to a new SIP requirement to ensure that 
its emissions will be reduced by a specified amount in a specified time. 
Thus, if the source(s) providing the emission reductions does not obtain 
the necessary reduction, it will be in violation of a SIP requirement 
and subject to enforcement action by EPA, the State and/or private 
parties.
---------------------------------------------------------------------------

    10 The emission offset will, therefore, be enforceable by EPA under 
section 113 as an applicable SIP requirement and will be enforceable by 
private parties under section 304 as an emission limitation.
---------------------------------------------------------------------------

    The form of the SIP revision may be a State or local regulation, 
operating permit condition, consent or enforcement order, or any other 
mechanism available to the State that is enforceable under the Clean Air 
Act. If a SIP revision is required, the public hearing on the revision 
may be substituted for the normal public comment procedure required for 
all major sources under 40 CFR 51.18. The formal publication of the SIP 
revision approval in the Federal Register need not appear before the 
source may proceed with construction. To minimize uncertainty that may 
be caused by these procedures, EPA will, if requested by the State, 
propose a SIP revision for public comment in the Federal Register 
concurrently with the State public hearing process. Of course, any major 
change in the final permit/SIP revision submitted by the State may 
require a reproposal by EPA.
    B. State or community initiated emission offsets. A State or 
community which desires that a source locate in its area may commit to 
reducing emissions from existing sources (including mobile sources) to 
sufficiently outweigh the impact of the new source and thus open the way 
for the new source. As with source-initiated emission offsets, the 
commitment must be something more than one-for-one. This commitment must 
be submitted as a SIP revision by the State.

            VI. Policy Where Attainment Dates have not Passed

    In some cases, the dates for attainment of primary standards 
specified in the SIP under section 110 have not yet passed due to a 
delay in the promulgation of a plan under this section of the Act. In 
addition the Act provides more flexibility with respect to the dates for 
attainment of secondary NAAQS than for primary standards. Rather than 
setting specific deadlines, section 110 requires secondary NAAQS to be 
achieved within a ``reasonable time''. Therefore, in some cases, the 
date for attainment of secondary standards specified in the SIP under 
section 110 may also not yet have passed. In such cases, a new source 
locating in an area designated in 40 CFR 81.3000 et seq. as 
nonattainment (or, where Section III of this Ruling is applicable, a new 
source which would cause or contribute to an NAAQS violation) may be 
exempt from the Conditions of Section IV. A. so long as the new source 
meets the applicable SIP emissions limitations and will not interfere 
with the attainment date specified in the SIP under section 110 of the 
Act.

(Secs. 101(b)(1), 110, 160-169, 171-178, and 301(a), Clean Air Act, as 
amended (42 U.S.C. 7401(b)(1), 7410, 7470-7479, 7501-7508, and 7601(a)); 
sec. 129(a), Clean Air Act Amendments of 1977 (Pub. L. 95-95, 91 Stat. 
685 (Aug., 7, 1977)))

[44 FR 3282, Jan. 16, 1979, as amended at 45 FR 31311, May 13, 1980; 45 
FR 52741, Aug. 7, 1980; 45 FR 59879, Sept. 11, 1980; 46 FR 50771, Oct. 
14, 1981; 47 FR 27561, June 25, 1982; 49 FR 43210, Oct. 26, 1984; 51 FR 
40661, 40675, Nov. 7, 1986; 52 FR 24714, July 1, 1987; 52 FR 29386, Aug 
7, 1987; 54 FR 27285, 27299, June 28, 1989; 57 FR 3946, Feb. 3, 1992]

                       Appendixes T-U--[Reserved]

Appendix V to Part 51--Criteria for Determining the Completeness of Plan 
                               Submissions

                              1.0. Purpose

    This appendix V sets forth the minimum criteria for determining 
whether a State implementation plan submitted for consideration by EPA 
is an official submission for purposes of review under Sec. 51.103.
    1.1 The EPA shall return to the submitting official any plan or 
revision thereof which fails to meet the criteria set forth in this 
appendix V, and request corrective action, identifying the component(s) 
absent or insufficient to perform a review of the submitted plan.
    1.2 The EPA shall inform the submitting official whether or not a 
plan submission meets the requirements of this appendix V within 60 days 
of EPA's receipt of the submittal, but no later than 6 months after the 
date by which the State was required to submit the plan or revision. If 
a completeness determination is not made by 6 months from receipt of a 
submittal, the submittal shall be deemed complete by operation of law on 
the date 6 months from receipt. A determination of completeness under 
this paragraph means

[[Page 952]]

that the submission is an official submission for purposes of 
Sec. 51.103.

                              2.0. Criteria

    The following shall be included in plan submissions for review by 
EPA:
    2.1. Administrative Materials
    (a) A formal letter of submittal from the Governor or his designee, 
requesting EPA approval of the plan or revision thereof (hereafter ``the 
plan'').
    (b) Evidence that the State has adopted the plan in the State code 
or body of regulations; or issued the permit, order, consent agreement 
(hereafter ``document'') in final form. That evidence shall include the 
date of adoption or final issuance as well as the effective date of the 
plan, if different from the adoption/issuance date.
    (c) Evidence that the State has the necessary legal authority under 
State law to adopt and implement the plan.
    (d) A copy of the actual regulation, or document submitted for 
approval and incorporation by reference into the plan, including 
indication of the changes made to the existing approved plan, where 
applicable. The submittal shall be a copy of the official State 
regulation /document signed, stamped, dated by the appropriate State 
official indicating that it is fully enforceable by the State. The 
effective date of the regulation/document shall, whenever possible, be 
indicated in the document itself.
    (e) Evidence that the State followed all of the procedural 
requirements of the State's laws and constitution in conducting and 
completing the adoption/issuance of the plan.
    (f) Evidence that public notice was given of the proposed change 
consistent with procedures approved by EPA, including the date of 
publication of such notice.
    (g) Certification that public hearings(s) were held in accordance 
with the information provided in the public notice and the State's laws 
and constitution, if applicable.
    (h) Compilation of public comments and the State's response thereto.
    2.2. Technical Support
    (a) Identification of all regulated pollutants affected by the plan.
    (b) Identification of the locations of affected sources including 
the EPA attainment/nonattainment designation of the locations and the 
status of the attainment plan for the affected areas(s).
    (c) Quantification of the changes in plan allowable emissions from 
the affected sources; estimates of changes in current actual emissions 
from affected sources or, where appropriate, quantification of changes 
in actual emissions from affected sources through calculations of the 
differences between certain baseline levels and allowable emissions 
anticipated as a result of the revision.
    (d) The State's demonstration that the national ambient air quality 
standards, prevention of significant deterioration increments, 
reasonable further progress demonstration, and visibility, as 
applicable, are protected if the plan is approved and implemented. For 
all requests to redesignate an area to attainment for a national primary 
ambient air quality standard, under section 107 of the Act, a revision 
must be submitted to provide for the maintenance of the national primary 
ambient air quality standards for at least 10 years as required by 
section 175A of the Act.
    (e) Modeling information required to support the proposed revision, 
including input data, output data, models used, justification of model 
selections, ambient monitoring data used, meteorological data used, 
justification for use of offsite data (where used), modes of models 
used, assumptions, and other information relevant to the determination 
of adequacy of the modeling analysis.
    (f) Evidence, where necessary, that emission limitations are based 
on continuous emission reduction technology.
    (g) Evidence that the plan contains emission limitations, work 
practice standards and recordkeeping/reporting requirements, where 
necessary, to ensure emission levels.
    (h) Compliance/enforcement strategies, including how compliance will 
be determined in practice.
    (i) Special economic and technological justifications required by 
any applicable EPA policies, or an explanation of why such 
justifications are not necessary.
    2.3. Exceptions
    2.3.1. The EPA, for the purposes of expediting the review of the 
plan, has adopted a procedure referred to as ``parallel processing.'' 
Parallel processing allows a State to submit the plan prior to actual 
adoption by the State and provides an opportunity for the State to 
consider EPA comments prior to submission of a final plan for final 
review and action. Under these circumstances, the plan submitted will 
not be able to meet all of the requirements of paragraph 2.1 (all 
requirements of paragraph 2.2 will apply). As a result, the following 
exceptions apply to plans submitted explicitly for parallel processing:
    (a) The letter required by paragraph 2.1(a) shall request that EPA 
propose approval of the proposed plan by parallel processing.
    (b) In lieu of paragraph 2.1(b) the State shall submit a schedule 
for final adoption or issuance of the plan.
    (c) In lieu of paragraph 2.1(d) the plan shall include a copy of the 
proposed/draft regulation or document, including indication of the 
proposed changes to be made to the existing approved plan, where 
applicable.
    (d) The requirements of paragraphs 2.1(e)-2.1(h) shall not apply to 
plans submitted for parallel processing.

[[Page 953]]

    2.3.2. The exceptions granted in paragraph 2.3.1 shall apply only to 
EPA's determination of proposed action and all requirements of paragraph 
2.1 shall be met prior to publication of EPA's final determination of 
plan approvability.

[55 FR 5830, Feb. 16, 1990, as amended at 56 FR 42219, Aug. 26, 1991; 56 
FR 57288, Nov. 8, 1991]

    Appendix W to Part 51--Guideline on Air Quality Models (Revised)

                 [EPA Document Number EPA-450/2-78-027R]

                                 Preface

    Industry and control agencies have long expressed a need for 
consistency in the application of air quality models for regulatory 
purposes. In the 1977 Clean Air Act, Congress mandated such consistency 
and encouraged the standardization of model applications. The Guideline 
on Air Quality Models was first published in April 1978 to satisfy these 
requirements by specifying models and providing guidance for their use. 
This guideline provides a common basis for estimating the air quality 
concentrations used in assessing control strategies and developing 
emission limits.
    The continuing development of new air quality models in response to 
regulatory requirements and the expanded requirements for models to 
cover even more complex problems have emphasized the need for periodic 
review and update of guidance on these techniques. Four primary on-going 
activities provide direct input to revisions of this modeling guideline. 
The first is a series of annual EPA workshops conducted for the purpose 
of ensuring consistency and providing clarification in the application 
of models. The second activity, directed toward the improvement of 
modeling procedures, is the cooperative agreement that EPA has with the 
scientific community represented by the American Meteorological Society. 
This agreement provides scientific assessment of procedures and proposed 
techniques and sponsors workshops on key technical issues. The third 
activity is the solicitation and review of new models from the technical 
and user community. In the March 27, 1980 Federal Register, a procedure 
was outlined for the submittal to EPA of privately developed models. 
After extensive evaluation and scientific review, these models, as well 
as those made available by EPA, are considered for recognition in this 
guideline. The fourth activity is the extensive on-going research 
efforts by EPA and others in air quality and meteorological modeling.
    Based primarily on these four activities, this document embodies 
revisions to the ``Guideline on Air Quality Models.'' Although the text 
has been revised from the 1978 guide, the present content and topics are 
similar. As necessary, new sections and topics are included. EPA does 
not make changes to the guidance on a predetermined schedule, but rather 
on an as needed basis. EPA believes that revisions to this guideline 
should be timely and responsive to user needs and should involve public 
participation to the greatest possible extent. All future changes to the 
guidance will be proposed and finalized in the Federal Register. 
Information on the current status of modeling guidance can always be 
obtained from EPA's Regional Offices.

                            Table of Contents

                             List of Tables

1.0  Introduction
2.0  Overview of Model Use
    2.1  Suitability of Models
    2.2  Classes of Models
    2.3  Levels of Sophistication of Models
3.0  Recommended Air Quality Models
    3.1  Preferred Modeling Techniques
    3.1.1  Discussion
    3.1.2  Recommendations
    3.2  Use of Alternative Models
    3.2.1  Discussion
    3.2.2  Recommendations
    3.3  Availability of Supplementary Modeling Guidance
    3.3.1  The Model Clearinghouse
    3.3.2  Regional Meteorologists Workshops
4.0  Simple-Terrain Stationary-Source Models
    4.1  Discussion
    4.2  Recommendations
    4.2.1  Screening Techniques
    4.2.2  Refined Analytical Techniques
5.0  Model Use in Complex Terrain
    5.1  Discussion
    5.2  Recommendations
    5.2.1  Screening Techniques
    5.2.2  Refined Analytical Techniques
6.0  Models for Ozone, Carbon Monoxide and Nitrogen Dioxide
    6.1  Discussion
    6.2  Recommendations
    6.2.1  Models for Ozone
    6.2.2  Models for Carbon Monoxide
    6.2.3  Models for Nitrogen Dioxide (Annual Average)
7.0  Other Model Requirements
    7.1  Discussion
    7.2  Recommendations
    7.2.1  Fugitive Dust/Fugitive Emissions
    7.2.2  Particulate Matter
    7.2.3  Lead
    7.2.4  Visibility
    7.2.5  Good Engineering Practice Stack Height
    7.2.6  Long Range Transport (LRT) (i.e., beyond 50km)
    7.2.7  Modeling Guidance for Other Governmental Programs

[[Page 954]]

    7.2.8  Air Pathway Analyses (Air Toxics and Hazardous Waste)
8.0  General Modeling Considerations
    8.1  Discussion
    8.2  Recommendations
    8.2.1  Design Concentrations
    8.2.2  Critical Receptor Sites
    8.2.3  Dispersion Coefficients
    8.2.4  Stability Categories
    8.2.5  Plume Rise
    8.2.6  Chemical Transformation
    8.2.7  Gravitational Settling and Deposition
    8.2.8  Urban/Rural Classification
    8.2.9  Fumigation
    8.2.10  Stagnation
    8.2.11  Calibration of Models
9.0  Model Input Data
    9.1  Source Data
    9.1.1  Discussion
    9.1.2  Recommendations
    9.2  Background Concentrations
    9.2.1  Discussion
    9.2.2  Recommendations (Isolated Single Source)
    9.2.3  Recommendations (Multi-Source Areas)
    9.3  Meteorological Input Data
    9.3.1  Length of Record of Meteorological Data
    9.3.2  National Weather Service Data
    9.3.3  Site-Specific Data
    9.3.4  Treatment of Calms
10.0  Accuracy and Uncertainty of Models
    10.1  Discussion
    10.1.1  Overview of Model Uncertainty
    10.1.2  Studies of Model Accuracy
    10.1.3  Use of Uncertainty in Decision-Making
    10.1.4  Evaluation of Models
    10.2  Recommendations
11.0  Regulatory Application of Models
    11.1  Discussion
    11.2  Recommendations
    11.2.1  Analysis Requirements
    11.2.2  Use of Measured Data in Lieu of Model Estimates
    11.2.3  Emission Limits
12.0  References
13.0  Bibliography
14.0  Glossary of Terms
Appendix A to Appendix W of Part 51--Summaries of Preferred Air Quality 
          Models
Appendix B to Appendix W of Part 51--Summaries of Alternative Air 
          Quality Models
Appendix C to Appendix W of Part 51--Example Air Quality Analysis 
          Checklist

                             List of Tables                             
------------------------------------------------------------------------
 Table                                                                  
  No.                                 Title                             
------------------------------------------------------------------------
4-1...  Preferred Models for Selected Applications in Simple Terrain.   
5-1a..  Neutral/Stable Meteorological Matrix for CTSCREEN.              
5-1b..  Unstable/Convective Meteorological Matrix for CTSCREEN.         
5-2...  Preferred Options for the SHORTZ/LONGZ Computer Codes When Used 
         in a Screening Mode.                                           
5-3...  Preferred Options for the RTDM Computer Code When Used in a     
         Screening Mode.                                                
9-1...  Model Emission Input Data for Point Sources.                    
9-2...  Point Source Model Input Data (Emissions) for PSD NAAQS         
         Compliance Demonstrations.                                     
9-3...  Averaging Times for Site-Specific Wind and Turbulence           
         Measurements.                                                  
------------------------------------------------------------------------

                            1.0  Introduction

    This guideline recommends air quality modeling techniques that 
should be applied to State Implementation Plan (SIP) \1\ revisions for 
existing sources and to new source reviews,\2\ including prevention of 
significant deterioration (PSD).\3\ It is intended for use by EPA 
Regional Offices in judging the adequacy of modeling analyses performed 
by EPA, State and local agencies and by industry. The guidance is 
appropriate for use by other Federal agencies and by State agencies with 
air quality and land management responsibilities. It serves to identify, 
for all interested parties, those techniques and data bases EPA 
considers acceptable. The guide is not intended to be a compendium of 
modeling techniques. Rather, it should serve as a basis by which air 
quality managers, supported by sound scientific judgment, have a common 
measure of acceptable technical analysis.
    Due to limitations in the spatial and temporal coverage of air 
quality measurements, monitoring data normally are not sufficient as the 
sole basis for demonstrating the adequacy of emission limits for 
existing sources. Also, the impacts of new sources that do not yet exist 
can only be determined through modeling. Thus, models, while uniquely 
filling one program need, have become a primary analytical tool in most 
air quality assessments. Air quality measurements though can be used in 
a complementary manner to dispersion models, with due regard for the 
strengths and weaknesses of both analysis techniques. Measurements are 
particularly useful in assessing the accuracy of model estimates. The 
use of air quality measurements alone however could be preferable, as 
detailed in a later section of this document, when models are found to 
be unacceptable and monitoring data with sufficient spatial and temporal 
coverage are available.
    It would be advantageous to categorize the various regulatory 
programs and to apply a designated model to each proposed source needing 
analysis under a given program. However, the diversity of the nation's 
topography and climate, and variations in source configurations and 
operating characteristics dictate against a strict modeling 
``cookbook.'' There is no one model capable of

[[Page 955]]

properly addressing all conceivable situations even within a broad 
category such as point sources. Meteorological phenomena associated with 
threats to air quality standards are rarely amenable to a single 
mathematical treatment; thus, case-by-case analysis and judgment are 
frequently required. As modeling efforts become more complex, it is 
increasingly important that they be directed by highly competent 
individuals with a broad range of experience and knowledge in air 
quality meteorology. Further, they should be coordinated closely with 
specialists in emissions characteristics, air monitoring and data 
processing. The judgment of experienced meteorologists and analysts is 
essential.
    The model that most accurately estimates concentrations in the area 
of interest is always sought. However, it is clear from the needs 
expressed by the States and EPA Regional Offices, by many industries and 
trade associations, and also by the deliberations of Congress, that 
consistency in the selection and application of models and data bases 
should also be sought, even in case-by-case analyses. Consistency 
ensures that air quality control agencies and the general public have a 
common basis for estimating pollutant concentrations, assessing control 
strategies and specifying emission limits. Such consistency is not, 
however, promoted at the expense of model and data base accuracy. This 
guide provides a consistent basis for selection of the most accurate 
models and data bases for use in air quality assessments.
    Recommendations are made in this guide concerning air quality 
models, data bases, requirements for concentration estimates, the use of 
measured data in lieu of model estimates, and model evaluation 
procedures. Models are identified for some specific applications. The 
guidance provided here should be followed in all air quality analyses 
relative to State Implementation Plans and in analyses required by EPA, 
State and local agency air programs. The EPA may approve the use of 
another technique that can be demonstrated to be more appropriate than 
those recommended in this guide. This is discussed at greater length in 
Section 3.0. In all cases, the model applied to a given situation should 
be the one that provides the most accurate representation of atmospheric 
transport, dispersion, and chemical transformations in the area of 
interest. However, to ensure consistency, deviations from this guide 
should be carefully documented and fully supported.
    From time to time situations arise requiring clarification of the 
intent of the guidance on a specific topic. Periodic workshops are held 
with the EPA Regional Meteorologists to ensure consistency in modeling 
guidance and to promote the use of more accurate air quality models and 
data bases. The workshops serve to provide further explanations of 
guideline requirements to the Regional Offices and workshop reports are 
issued with this clarifying information. In addition, findings from on-
going research programs, new model submittals, or results from model 
evaluations and applications are continuously evaluated. Based on this 
information changes in the guidance may be indicated.
    All changes to this guidance must follow rulemaking requirements 
since the guideline is codified in Appendix W of part 51. EPA will 
promulgate proposed and final rules in the Federal Register to amend 
this Appendix. Ample opportunity for public comment will also be 
provided for each proposed change and public hearings scheduled if 
requested. Final rule changes will also be made available through the 
National Technical Information Service (NTIS).
    A wide range of topics on modeling and data bases are discussed in 
the remainder of this guideline. Chapter 2 gives an overview of models 
and their appropriate use. Chapter 3 provides specific guidance on the 
use of ``preferred'' air quality models and on the selection of 
alternative techniques. Chapters 4 through 7 provide recommendations on 
modeling techniques for application to simple-terrain stationary source 
problems, complex terrain problems, and mobile source problems. Specific 
modeling requirements for selected regulatory issues are also addressed. 
Chapter 8 discusses issues common to many modeling analyses, including 
acceptable model components. Chapter 9 makes recommendations for data 
inputs to models including source, meteorological and background air 
quality data. Chapter 10 covers the uncertainty in model estimates and 
how that information can be useful to the regulatory decision-maker. The 
last chapter summarizes how estimates and measurements of air quality 
are used in assessing source impact and in evaluating control 
strategies.
    Appendix W to 40 CFR part 51 (the ``Guideline on Air Quality Models 
(Revised)'') itself contains three appendices: A, B, and C. Thus, when 
reference is made to ``appendix A'' in this document, it refers to the 
appendix A to appendix W to 40 CFR part 51. Appendices B and C are 
referenced in the same way.
    Appendix A contains summaries of refined air quality models that are 
``preferred'' for specific applications; both EPA models and models 
developed by others are included. Appendix B contains summaries of other 
refined models that may be considered with a case-specific 
justification. Appendix C contains a checklist of requirements for an 
air quality analysis.

                       2.0  Overview of Model Use

    Before attempting to implement the guidance contained in this 
document, the reader

[[Page 956]]

should be aware of certain general information concerning air quality 
models and their use. Such information is provided in this section.

                       2.1  Suitability of Models

    The extent to which a specific air quality model is suitable for the 
evaluation of source impact depends upon several factors. These include: 
(1) The meteorological and topographic complexities of the area; (2) the 
level of detail and accuracy needed for the analysis; (3) the technical 
competence of those undertaking such simulation modeling; (4) the 
resources available; and (5) the detail and accuracy of the data base, 
i.e., emissions inventory, meteorological data, and air quality data. 
Appropriate data should be available before any attempt is made to apply 
a model. A model that requires detailed, precise, input data should not 
be used when such data are unavailable. However, assuming the data are 
adequate, the greater the detail with which a model considers the 
spatial and temporal variations in emissions and meteorological 
conditions, the greater the ability to evaluate the source impact and to 
distinguish the effects of various control strategies.
    Air quality models have been applied with the most accuracy or the 
least degree of uncertainty to simulations of long term averages in 
areas with relatively simple topography. Areas subject to major 
topographic influences experience meteorological complexities that are 
extremely difficult to simulate. Although models are available for such 
circumstances, they are frequently site specific and resource intensive. 
In the absence of a model capable of simulating such complexities, only 
a preliminary approximation may be feasible until such time as better 
models and data bases become available.
    Models are highly specialized tools. Competent and experienced 
personnel are an essential prerequisite to the successful application of 
simulation models. The need for specialists is critical when the more 
sophisticated models are used or the area being investigated has 
complicated meteorological or topographic features. A model applied 
improperly, or with inappropriately chosen data, can lead to serious 
misjudgments regarding the source impact or the effectiveness of a 
control strategy.
    The resource demands generated by use of air quality models vary 
widely depending on the specific application. The resources required 
depend on the nature of the model and its complexity, the detail of the 
data base, the difficulty of the application, and the amount and level 
of expertise required. The costs of manpower and computational 
facilities may also be important factors in the selection and use of a 
model for a specific analysis. However, it should be recognized that 
under some sets of physical circumstances and accuracy requirements, no 
present model may be appropriate. Thus, consideration of these factors 
should not lead to selection of an inappropriate model.

                         2.2  Classes of Models

    The air quality modeling procedures discussed in this guide can be 
categorized into four generic classes: Gaussian, numerical, statistical 
or empirical, and physical. Within these classes, especially Gaussian 
and numerical models, a large number of individual ``computational 
algorithms'' may exist, each with its own specific applications. While 
each of the algorithms may have the same generic basis, e.g., Gaussian, 
it is accepted practice to refer to them individually as models. For 
example, the CRSTER model and the RAM model are commonly referred to as 
individual models. In fact, they are both variations of a basic Gaussian 
model. In many cases the only real difference between models within the 
different classes is the degree of detail considered in the input or 
output data.
    Gaussian models are the most widely used techniques for estimating 
the impact of nonreactive pollutants. Numerical models may be more 
appropriate than Gaussian models for area source urban applications that 
involve reactive pollutants, but they require much more extensive input 
data bases and resources and therefore are not as widely applied. 
Statistical or empirical techniques are frequently employed in 
situations where incomplete scientific understanding of the physical and 
chemical processes or lack of the required data bases make the use of a 
Gaussian or numerical model impractical. Various specific models in 
these three generic types are discussed in this guideline.
    Physical modeling, the fourth generic type, involves the use of wind 
tunnel or other fluid modeling facilities. This class of modeling is a 
complex process requiring a high level of technical expertise, as well 
as access to the necessary facilities. Nevertheless, physical modeling 
may be useful for complex flow situations, such as building, terrain or 
stack down-wash conditions, plume impact on elevated terrain, diffusion 
in an urban environment, or diffusion in complex terrain. It is 
particularly applicable to such situations for a source or group of 
sources in a geographic area limited to a few square kilometers. If 
physical modeling is available and its applicability demonstrated, it 
may be the best technique. A discussion of physical modeling is beyond 
the scope of this guide. The EPA publication ``Guideline for Fluid 
Modeling of Atmospheric Diffusion,'' \4\ provides information on fluid 
modeling applications and the limitations of that method.

[[Page 957]]

                 2.3  Levels of Sophistication of Models

    In addition to the various classes of models, there are two levels 
of sophistication. The first level consists of general, relatively 
simple estimation techniques that provide conservative estimates of the 
air quality impact of a specific source, or source category. These are 
screening techniques or screening models. The purpose of such techniques 
is to eliminate the need of further more detailed modeling for those 
sources that clearly will not cause or contribute to ambient 
concentrations in excess of either the National Ambient Air Quality 
Standards (NAAQS) \5\ or the allowable prevention of significant 
deterioration (PSD) concentration increments.\3\ If a screening 
technique indicates that the concentration contributed by the source 
exceeds the PSD increment or the increment remaining to just meet the 
NAAQS, then the second level of more sophisticated models should be 
applied.
    The second level consists of those analytical techniques that 
provide more detailed treatment of physical and chemical atmospheric 
processes, require more detailed and precise input data, and provide 
more specialized concentration estimates. As a result they provide a 
more refined and, at least theoretically, a more accurate estimate of 
source impact and the effectiveness of control strategies. These are 
referred to as refined models.
    The use of screening techniques followed by a more refined analysis 
is always desirable, however there are situations where the screening 
techniques are practically and technically the only viable option for 
estimating source impact. In such cases, an attempt should be made to 
acquire or improve the necessary data bases and to develop appropriate 
analytical techniques.

                   3.0  Recommended Air Quality Models

    This section recommends refined modeling techniques that are 
preferred for use in regulatory air quality programs. The status of 
models developed by EPA, as well as those submitted to EPA for review 
and possible inclusion in this guidance, is discussed. The section also 
addresses the selection of models for individual cases and provides 
recommendations for situations where the preferred models are not 
applicable. Two additional sources of modeling guidance, the Model 
Clearinghouse \6\ and periodic Regional Meteorologists' workshops, are 
also briefly discussed here.
    In all regulatory analyses, especially if other than preferred 
models are selected for use, early discussions among Regional Office 
staff, State and local control agencies, industry representatives, and 
where appropriate, the Federal Land Manager, are invaluable and are 
encouraged. Agreement on the data base to be used, modeling techniques 
to be applied and the overall technical approach, prior to the actual 
analyses, helps avoid misunderstandings concerning the final results and 
may reduce the later need for additional analyses. The use of an air 
quality checklist, such as presented in appendix C, and the preparation 
of a written protocol help to keep misunderstandings at a minimum.
    It should not be construed that the preferred models identified here 
are to be permanently used to the exclusion of all others or that they 
are the only models available for relating emissions to air quality. The 
model that most accurately estimates concentrations in the area of 
interest is always sought. However, designation of specific models is 
needed to promote consistency in model selection and application.
    The 1980 solicitation of new or different models from the technical 
community \7\ and the program whereby these models are evaluated, 
established a means by which new models are identified, reviewed and 
made available in the guideline. There is a pressing need for the 
development of models for a wide range of regulatory applications. 
Refined models that more realistically simulate the physical and 
chemical process in the atmosphere and that more reliably estimate 
pollutant concentrations are required. Thus, the solicitation of models 
is considered to be continuous.

                   3.1  Preferred Modeling Techniques

                            3.1.1  Discussion

    EPA has developed approximately 10 models suitable for regulatory 
application. More than 20 additional models were submitted by private 
developers for possible inclusion in the guideline. These refined models 
have all been organized into eight categories of use: rural, urban 
industrial complex, reactive pollutants, mobile sources, complex 
terrain, visibility, and long range transport. They are undergoing an 
intensive evaluation by category. The evaluation exercises 8,9,10 
include statistical measures of model performance in comparison with 
measured air quality data as suggested by the American Meteorological 
Society \11\ and, where possible, peer scientific reviews.12,13,14
    When a single model is found to perform better than others in a 
given category, it is recommended for application in that category as a 
preferred model and listed in Appendix A. If no one model is found to 
clearly perform better through the evaluation exercise, then the 
preferred model listed in appendix A is selected on the basis of other 
factors such as past use, public familiarity, cost or resource 
requirements, and availability. No further evaluation of a preferred 
model is required if the source follows EPA recommendations specified 
for the model in this

[[Page 958]]

guideline. The models not specifically recommended for use in a 
particular category are summarized in appendix B. These models should be 
compared with measured air quality data when they are used for 
regulatory applications consistent with recommendations in section 3.2.
    The solicitation of new refined models which are based on sounder 
scientific principles and which more reliably estimate pollutant 
concentrations is considered by EPA to be continuous. Models that are 
submitted in accordance with the provisions outlined in the Federal 
Register notice of March 1980 (45 FR 20157) \7\ will be evaluated as 
submitted. These requirements are:
    1. The model must be computerized and functioning in a common 
Fortran language suitable for use on a variety of computer systems.
    2. The model must be documented in a user's guide which identifies 
the mathematics of the model, data requirements and program operating 
characteristics at a level of detail comparable to that available for 
currently recommended models, e.g., the Single Source [CRSTER] Model.
    3. The model must be accompanied by a complete test data set 
including input parameters and output results. The test data must be 
included in the user's guide as well as provided in computer-readable 
form.
    4. The model must be useful to typical users, e.g., State air 
pollution control agencies, for specific air quality control problems. 
Such users should be able to operate the computer program(s) from 
available documentation.
    5. The model documentation must include a comparison with air 
quality data or with other well-established analytical techniques.
    6. The developer must be willing to make the model available to 
users at reasonable cost or make it available for public access through 
the National Technical Information Service; the model cannot be 
proprietary.
    The evaluation process will include a determination of technical 
merit, in accordance with the above six items including the practicality 
of the model for use in ongoing regulatory programs. Each model will 
also be subjected to a performance evaluation for an appropriate data 
base and to a peer scientific review. Models for wide use (not just an 
isolated case!) found to perform better, based on an evaluation for the 
same data bases used to evaluate models in appendix A, will be proposed 
for inclusion as preferred models in future guideline revisions.

                         3.1.2  Recommendations

    Appendix A identifies refined models that are preferred for use in 
regulatory applications. If a model is required for a particular 
application, the user should select a model from that appendix. These 
models may be used without a formal demonstration of applicability as 
long as they are used as indicated in each model summary of appendix A. 
Further recommendations for the application of these models to specific 
source problems are found in subsequent sections of this guideline.
    If changes are made to a preferred model without affecting the 
concentration estimates, the preferred status of the model is unchanged. 
Examples of modifications that do not affect concentrations are those 
made to enable use of a different computer or those that affect only the 
format or averaging time of the model results. However, when any changes 
are made, the Regional Administrator should require a test case example 
to demonstrate that the concentration estimates are not affected.
    A preferred model should be operated with the options listed in 
appendix A as ``Recommendations for Regulatory Use.'' If other options 
are exercised, the model is no longer ``preferred.'' Any other 
modification to a preferred model that would result in a change in the 
concentration estimates likewise alters its status as a preferred model. 
Use of the model must then be justified on a case-by-case basis.

                     3.2  Use of Alternative Models

    3.2.1  Discussion Selection of the best techniques for each 
individual air quality analysis is always encouraged, but the selection 
should be done in a consistentmanner. A simple listing of models in this 
guide cannot alone achieve that consistency nor can it necessarily 
provide the best model for all possible situations. An EPA document, 
``Interim Procedures for Evaluating Air Quality Models'',15,16 has 
been prepared to assist in developing a consistent approach when 
justifying the use of other than the preferred modeling techniques 
recommended in this guide. An alternative to be considered to the 
performance measures contained in chapter 3 of this document is set 
forth in another EPA document ``Protocol for Determining the Best 
Performing Model''.17 The procedures in both documents provide a 
general framework for objective decision-making on the acceptability of 
an alternative model for a given regulatory application. The documents 
contain procedures for conducting both the technical evaluation of the 
model and the field test or performance evaluation.
    This section discusses the use of alternate modeling techniques and 
defines three situations when alternative models may be used.
    3.2.2  Recommendations. Determination of acceptability of a model is 
a Regional Office responsibility. Where the Regional Administrator finds 
that an alternative model is more appropriate than a preferred model, 
that model may be used subject to the recommendations below. This 
finding will normally result from a determination that (1) a

[[Page 959]]

preferred air quality model is not appropriate for the particular 
application; or (2) a more appropriate model or analytical procedure is 
available and is applicable.
    An alternative model should be evaluated from both a theoretical and 
a performance perspective before it is selected for use. There are three 
separate conditions under which such a model will normally be approved 
for use: (1) If a demonstration can be made that the model produces 
concentration estimates equivalent to the estimates obtained using a 
preferred model; (2) if a statistical performance evaluation has been 
conducted using measured air quality data and the results of that 
evaluation indicate the alternative model performs better for the 
application than a comparable model in appendix A; and (3) if there is 
no preferred model for the specific application but a refined model is 
needed to satisfy regulatory requirements. Any one of these three 
separate conditions may warrant use of an alternative model. Some known 
alternative models that are applicable for selected situations are 
contained in appendix B. However, inclusion there does not infer any 
unique status relative to other alternative models that are being or 
will be developed in the future.
    Equivalency is established by demonstrating that the maximum or 
highest, second highest concentrations are within 2 percent of the 
estimates obtained from the preferred model. The option to show 
equivalency is intended as a simple demonstration of acceptability for 
an alternative model that is so nearly identical (or contains options 
that can make it identical) to a preferred model that it can be treated 
for practical purposes as the preferred model. Two percent was selected 
as the basis for equivalency since it is a rough approximation of the 
fraction that PSD Class I increments are of the NAAQS for SO2, 
i.e., the difference in concentrations that is judged to be significant. 
However, notwithstanding this demonstration, use of models that are not 
equivalent may be used when one of the two other conditions identified 
below are satisfied.
    The procedures and techniques for determining the acceptability of a 
model for an individual case based on superior performance is contained 
in the document entitled ``Interim Procedures for Evaluating Air Quality 
Models'',15 and should be followed, as appropriate.a 
Preparation and implementation of an evaluation protocol which is 
acceptable to both control agencies and regulated industry is an 
important element in such an evaluation.
---------------------------------------------------------------------------

    \a\ Another EPA document, ``Protocol for Determining the Best 
Performing Model'', 17 contains advanced statistical techniques for 
determining which model performs better than other competing models. In 
many cases, this protocol should be considered by users of the ``Interim 
Procedures for Evaluating Air Quality Models'' in preference to the 
material currently in Chapter 3 of that document.
---------------------------------------------------------------------------

    When no appendix A model is applicable to the modeling problem, an 
alternative refined model may be used provided that:
    1. The model can be demonstrated to be applicable to the problem on 
a theoretical basis, and
    2. The data bases which are necessary to perform the analysis are 
available and adequate, and
    3a. Performance evaluations of the model in similar circumstances 
have shown that the model is not biased toward underestimates, or
    3b. After consultation with the EPA Regional Office, a second model 
is selected as a baseline or reference point for performance and the 
interim procedures 15/protocol 17 are then used to demonstrate 
that the proposed model performs better than the reference model.

          3.3  Availability of Supplementary Modeling Guidance

    The Regional Administrator has the authority to select models that 
are appropriate for use in a given situation. However, there is a need 
for assistance and guidance in the selection process so that fairness 
and consistency in modeling decisions is fostered among the various 
Regional Offices and the States. To satisfy that need, EPA established 
the Model Clearinghouse and also holds periodic workshops with 
headquarters, Regional Office and State modeling representatives.

                     3.3.1   The Model Clearinghouse

    3.3.1.1  Discussion. The Model Clearinghouse is the single EPA focal 
point for review of air quality simulation models proposed for use in 
specific regulatory applications. Details concerning the Clearinghouse 
and its operation are found in the document, ``Model Clearinghouse: 
Operational Plan.'' \6\ Three primary functions of the Clearinghouse 
are:
    (1) Review of decisions proposed by EPA Regional Offices on the use 
of modeling techniques and data bases.
    (2) Periodic visits to Regional Offices to gather information 
pertinent to regulatory model usage.
    (3) Preparation of an annual report summarizing activities of the 
Clearinghouse including specific determinations made during the course 
of the year.
    3.3.1.2  Recommendations. The Regional Administrator may request 
assistance from the Model Clearinghouse after an initial evaluation and 
decision has been reached concerning the application of a model, 
analytical

[[Page 960]]

technique or data base in a particular regulatory action. The 
Clearinghouse may also consider and evaluate the use of modeling 
techniques submitted in support of any regulatory action. Additional 
responsibilities are: (1) Review proposed action for consistency with 
agency policy; (2) determine technical adequacy; and (3) make 
recommendations concerning the technique or data base.
    3.3.2  Regional Meteorologists Workshops
    3.3.2.1  Discussion. EPA conducts an annual in-house workshop for 
the purpose of mutual discussion and problem resolution among Regional 
Office modeling specialists, EPA research modeling experts, EPA 
Headquarters modeling and regulatory staff and representatives from 
State modeling programs. A summary of the issues resolved at previous 
workshops was issued in 1981 as ``Regional Workshops on Air Quality 
Modeling: A Summary Report.'' \17\ That report clarified procedures not 
specifically defined in the 1978 guideline and was issued to ensure the 
consistent interpretation of model requirements from Region to Region. 
Similar workshops for the purpose of clarifying guideline procedures or 
providing detailed instructions for the use of those procedures are 
anticipated in the future.
    3.3.2.2  Recommendations. The Regional Office should always be 
consulted for information and guidance concerning modeling methods and 
interpretations of modeling guidance, and to ensure that the air quality 
model user has available the latest most up-to-date policy and 
procedures.

              4.0  Simple-Terrain Stationary Source Models

                             4.1  Discussion

    Simple terrain, as used here, is considered to be an area where 
terrain features are all lower in elevation than the top of the stack of 
the source(s) in question. The models recommended in this section are 
generally used in the air quality impact analysis of stationary sources 
for most criteria pollutants. The averaging time of the concentration 
estimates produced by these models ranges from 1 hour to an annual 
average.
    Model evaluation exercises have been conducted to determine the 
``best, most appropriate point source model'' for use in simple 
terrain.8,12 However, no one model has been found to be clearly 
superior. Thus, based on past use, public familiarity, and availability 
CRSTER remains the recommended model for rural, simple terrain, single 
point source applications. Similar determinations were made for the 
other refined models that are identified in the following sections.

                          4.2  Recommendations

                       4.2.1  Screening Techniques

    Point source screening techniques are an acceptable approach to air 
quality analyses. One such approach is contained in the EPA document 
``Screening Procedures for Estimating the Air Quality Impact of 
Stationary Sources.'' \18\ A computerized version of the screening 
technique, SCREEN2, is available.19,20 For the current version of 
SCREEN, see reference 20.
    All screening procedures should be adjusted to the site and problem 
at hand. Close attention should be paid to whether the area should be 
classified urban or rural in accordance with Section 8.2.8. The 
climatology of the area should be studied to help define the worst-case 
meteorological conditions. Agreement should be reached between the model 
user and the reviewing authority on the choice of the screening model 
for each analysis, and on the input data as well as the ultimate use of 
the results.

                  4.2.2  Refined Analytical Techniques

    Table 4-1 lists preferred models for selected applications. These 
preferred models should be used for the sources, land use categories and 
averaging times indicated in the table. A brief description of each of 
these models is found in appendix A. Also listed in that appendix are 
the model input requirements, the standard options that should be 
selected when running the program and output options.
    When modeling for compliance with short term NAAQS and PSD 
increments is of primary concern, the short term models listed in Table 
4-l may also be used to provide long term concentration estimates. When 
modeling for sources for which long term standards alone are applicable 
(e.g., lead), then the long term models should be used.
    The conversion from long term to short term concentration averages 
by any transformation technique is not acceptable in regulatory 
applications.

Table 4-1.--Preferred Models for Selected Applications in Simple Terrain
------------------------------------------------------------------------
                                       Land use             Model 1     
------------------------------------------------------------------------
Short Term (i.e., 1-24 hours):                                          
  Single Source.................  Rural.............  CRSTER            
                                  Urban.............  RAM               
  Multiple Source...............  Rural.............  MPTER             
                                  Urban.............  RAM               
  Complicated Sources 2.........  Rural/Urban.......  ISCST 3           
  Buoyant Industrial Line         Rural.............  BLP               
   Sources.                                                             
Long Term (i.e., monthly,                                               
 seasonal or annual):                                                   
  Single Source.................  Rural.............  CRSTER            
                                  Urban.............  RAM               
  Multiple Source...............  Rural.............  MPTER             

[[Page 961]]

                                                                        
                                  Urban.............  CDM 2.0 or RAM 4  
  Complicated Sources 2.........  Rural/Urban.......  ISCLT3            
  Buoyant Industrial Line         Rural.............  BLP               
   Sources.                                                             
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------
\1\ The models as listed here reflect the applications for which they   
  were originally intended. Several of these models have been adapted to
  contain options which allow them to be interchanged. For example,     
  ISCST could be substituted for ISCLT. Similarly, for a point source   
  application, ISCST with urban option can be substituted for RAM. Where
  a substitution is convenient to the user and equivalent estimates are 
  assured, it may be made.                                              
\2\ Complicated sources are those with special problems such as         
  aerodynamic downwash, particle deposition, volume and area sources,   
  etc.                                                                  
\3\ For the current version of ISC, see reference 58 and note the model 
  description provided in Appendix A of this document.                  
\4\ If only a few sources in an urban area are to be modeled, RAM should
  be used.                                                              


                    5.0  Model Use in Complex Terrain

                             5.1  Discussion

    For the purpose of this guideline, complex terrain is defined as 
terrain exceeding the height of the stack being modeled. Complex terrain 
dispersion models are normally applied to stationary sources of 
pollutants such as SO2 and particulates.
    A major outcome from the EPA Complex Terrain Model Development 
project has been the publication of a refined dispersion model (CTDM) 
suitable for regulatory application to plume impaction assessments in 
complex terrain.\21\ Although CTDM as originally produced was only 
applicable to those hours characterized as neutral or stable, a computer 
code for all stability conditions, CTDMPLUS,\19\ together with a user's 
guide,\22\ and on-site meteorological and terrain data 
processors,23,24 is now available. Moreover, CTSCREEN,19,25 a 
version of CTDMPLUS that does not require on-site meteorological data 
inputs, is also available as a screening technique.
    The methods discussed in this section should be considered in two 
categories: (1) Screening techniques, and (2) the refined dispersion 
model, CTDMPLUS, discussed below and listed in Appendix A.
    Continued improvements in ability to accurately model plume 
dispersion in complex terrain situations can be expected, e.g., from 
research on lee side effects due to terrain obstacles. New approaches to 
improve the ability of models to realistically simulate atmospheric 
physics, e.g., hybrid models which incorporate an accurate wind field 
analysis, will ultimately provide more appropriate tools for analyses. 
Such hybrid modeling techniques are also acceptable for regulatory 
applications after the appropriate demonstration and evaluation.\15\

                          5.2  Recommendations

    Recommendations in this Section apply primarily to those situations 
where the impaction of plumes on terrain at elevations equal to or 
greater than the plume centerline during stable atmospheric conditions 
are determined to be the problem. If a violation of any NAAQS or the 
controlling increment is indicated by using any of the preferred 
screening techniques, then a refined complex terrain model may be used. 
Phenomena such as fumigation, wind direction shear, lee-side effects, 
building wake- or terrain-induced downwash, deposition, chemical 
transformation, variable plume trajectories, and long range transport 
are not addressed by the recommendations in this section.
    Where site-specific data are used for either screening or refined 
complex terrain models, a data base of at least 1 full-year of 
meteorological data is preferred. If more data are available, they 
should be used. Meteorological data used in the analysis should be 
reviewed for both spatial and temporal representativeness.
    Placement of receptors requires very careful attention when modeling 
in complex terrain. Often the highest concentrations are predicted to 
occur under very stable conditions, when the plume is near, or impinges 
on, the terrain. The plume under such conditions may be quite narrow in 
the vertical, so that even relatively small changes in a receptor's 
location may substantially affect the predicted concentration. Receptors 
within about a kilometer of the source may be even more sensitive to 
location. Thus, a dense array of receptors may be required in some 
cases. In order to avoid excessively large computer runs due to such a 
large array of receptors, it is often desirable to model the area twice. 
The first model run would use a moderate number of receptors carefully 
located over the area of interest. The second model run would use a more 
dense array of receptors in areas showing potential for high 
concentrations, as indicated by the results of the first model run.
    When CTSCREEN or CTDMPLUS is used, digitized contour data must be 
first processed by the CTDM Terrain Processor \23\ to provide hill shape 
parameters in a format suitable for direct input to CTDMPLUS. Then the 
user supplies receptors either through an interactive program that is 
part of the model or directly, by using a text editor; using both 
methods to select receptors will generally be necessary to assure that 
the maximum concentrations are estimated by either model. In cases where 
a terrain feature may ``appear to the plume'' as smaller, multiple 
hills, it may be necessary to model the terrain both as a single feature 
and as

[[Page 962]]

multiple hills to determine design concentrations.
    The user is encouraged to confer with the Regional Office if any 
unresolvable problems are encountered with any screening or refined 
analytical procedures, e.g., meteorological data, receptor siting, or 
terrain contour processing issues.

                       5.2.1  Screening Techniques

    Five preferred screening techniques are currently available to aid 
in the evaluation of concentrations due to plume impaction during stable 
conditions: (1) for 24-hour impacts, the Valley Screening Technique \19\ 
as outlined in the Valley Model User's Guide;\26\ (2) CTSCREEN,\19\ as 
outlined in the CTSCREEN User's Guide;\25\ (3) COMPLEX I;\19\ (4) 
SHORTZ/LONGZ;19,27 and (5) Rough Terrain Dispersion Model 
(RTDM)19,90 in its prescribed mode described below. As 
appropriate, any of these screening techniques may be used consistent 
with the needs, resources, and available data of the user.
    The Valley Model, COMPLEX I, SHORTZ/LONGZ, and RTDM should be used 
only to estimate concentrations at receptors whose elevations are 
greater than or equal to plume height. For receptors at or below stack 
height, a simple terrain model should be used (see Chapter 4). Receptors 
between stack height and plume height present a unique problem since 
none of the above models were designed to handle receptors in this 
narrow regime, the definition of which will vary hourly as 
meteorological conditions vary. CTSCREEN may be used to estimate 
concentrations under all stability conditions at all receptors located 
``on terrain'' above stack top, but has limited applicability in multi-
source situations. As a result, the estimation of concentrations at 
receptors between stack height and plume height should be considered on 
a case-by-case basis after consultation with the EPA Regional Office; 
the most appropriate technique may be a function of the actual source(s) 
and terrain configuration unique to that application. One technique that 
will generally be acceptable, but is not necessarily preferred for any 
specific application, involves applying both a complex terrain model 
(except for the Valley Model) and a simple terrain model. The Valley 
Model should not be used for any intermediate terrain receptor. For each 
receptor between stack height and plume height, an hour-by-hour 
comparison of the concentration estimates from both models is made. The 
higher of the two modeled concentrations should be chosen to represent 
the impact at that receptor for that hour, and then used to compute the 
concentration for the appropriate averaging time(s). For the simple 
terrain models, terrain may have to be ``chopped off'' at stack height, 
since these models are frequently limited to receptors no greater than 
stack height.
    5.2.1.1  Valley Screening Technique. The Valley Screening Technique 
may be used to determine 24-hour averages. This technique uses the 
Valley Model with the following worst-case assumptions for rural areas: 
(1) P-G stability ``F''; (2) wind speed of 2.5 m/s; and (3) 6 hours of 
occurrence. For urban areas the stability should be changed to ``P-G 
stability E.''
    When using the Valley Screening Technique to obtain 24-hour average 
concentrations the following apply: (1) Multiple sources should be 
treated individually and the concentrations for each wind direction 
summed; (2) only one wind direction should be used (see User's 
Guide,\26\ page 2-15) even if individual runs are made for each source; 
(3) for buoyant sources, the BID option may be used, and the option to 
use the 2.6 stable plume rise factor should be selected; (4) if plume 
impaction is likely on any elevated terrain closer to the source than 
the distance from the source to the final plume rise, then the 
transitional (or gradual) plume rise option for stable conditions should 
be selected.
    The standard polar receptor grid found in the Valley Model User's 
Guide may not be sufficiently dense for all analyses if only one 
geographical scale factor is used. The user should choose an additional 
set of receptors at appropriate downwind distances whose elevations are 
equal to plume height minus 10 meters. Alternatively, the user may 
exercise the ``Valley equivalent'' option in COMPLEX I or SCREEN and 
note the comments above on the placement of receptors in complex terrain 
models.
    When using the ``Valley equivalent'' option in COMPLEX I, set the 
wind profile exponents (PL) to 0.0, respectively, for all six stability 
classes.
    5.2.1.2  CTSCREEN. CTSCREEN may be used to obtain conservative, yet 
realistic, worst-case estimates for receptors located on terrain above 
stack height. CTSCREEN accounts for the three-dimensional nature of 
plume and terrain interaction and requires detailed terrain data 
representative of the modeling domain. The model description and user's 
instructions are contained in the user's guide.\25\ The terrain data 
must be digitized in the same manner as for CTDMPLUS and a terrain 
processor is available.\23\ A discussion of the model's performance 
characteristics is provided in a technical paper.\91\ CTSCREEN is 
designed to execute a fixed matrix of meteorological values for wind 
speed (u), standard deviation of horizontal and vertical wind speeds 
(v, w), vertical potential temperature 
gradient (d/dz), friction velocity (u*), Monin-Obukhov 
length (L), mixing height (zi) as a function of terrain height, and 
wind directions for both

[[Page 963]]

neutral/stable conditions and unstable convective conditions. Table 5-1 
contains the matrix of meteorological variables that is used for each 
CTSCREEN analysis. There are 96 combinations, including exceptions, for 
each wind direction for the neutral/stable case, and 108 combinations 
for the unstable case. The specification of wind direction, however, is 
handled internally, based on the source and terrain geometry. The matrix 
was developed from examination of the range of meteorological variables 
associated with maximum monitored concentrations from the data bases 
used to evaluate the performance of CTDMPLUS. Although CTSCREEN is 
designed to address a single source scenario, there are a number of 
options that can be selected on a case-by-case basis to address multi-
source situations. However, the Regional Office should be consulted, and 
concurrence obtained, on the protocol for modeling multiple sources with 
CTSCREEN to ensure that the worst case is identified and assessed. The 
maximum concentration output from CTSCREEN represents a worst-case 1-
hour concentration. Time-scaling factors of 0.7 for 3-hour, 0.15 for 24-
hour and 0.03 for annual concentration averages are applied internally 
by CTSCREEN to the highest 1-hour concentration calculated by the model.
    5.2.1.3  COMPLEX I. If the area is rural, COMPLEX I may be used to 
estimate concentrations for all averaging times. COMPLEX I is a 
modification of the MPTER model that incorporates the plume impaction 
algorithm of the Valley Model.\19\ It is a multiple-source screening 
technique that accepts hourly meteorological data as input. The output 
is the same as the normal MPTER output. When using COMPLEX I the 
following options should be selected: (1) set terrain adjustment IOPT(1) 
= 1; (2) set buoyancy induced dispersion IOPT (4) = 1; (3) set IOPT (25) 
= 1; (4) set the terrain adjustment values to 0.5, 0.5, 0.5 0.5, 0.0, 
0.0, (respectively for six stability classes); and (5) set Z MIN = 10.
    When using the ``Valley equivalent'' option (only) in COMPLEX I, set 
the wind profile exponents (PL) to 0.0, respectively, for all six 
stability classes. For all other regulatory uses of COMPLEX I, set the 
wind profile exponents to the values used in the simple terrain models, 
i.e., 0.07, 0.07, 0.10, 0.15, 0.35, and 0.55, respectively, for rural 
modeling.
    Gradual plume rise should be used to estimate concentrations at 
nearby elevated receptors, if plume impaction is likely on any elevated 
terrain closer to the source than the distance from the source to the 
final plume rise (see Section 8.2.5).
    5.2.1.4  SHORTZ/LONGZ. If the source is located in an urbanized 
(Section 8.2.8) complex terrain valley, then the suggested screening 
technique is SHORTZ for short-term averages or LONGZ for long-term 
averages. SHORTZ and LONGZ may be used as screening techniques in these 
complex terrain applications without demonstration and evaluation. 
Application of these models in other than urbanized valley situations 
will require the same evaluation and demonstration procedures as are 
required for all Appendix B models.
    Both SHORTZ and LONGZ have a number of options. When using these 
models as screening techniques for urbanized valley applications, the 
options listed in Table 5-2 should be selected.
    5.2.1.5  RTDM (Screening Mode). RTDM with the options specified in 
Table 5-3 may be used as a screening technique in rural complex terrain 
situations without demonstration and evaluation.
    The RTDM screening technique can provide a more refined 
concentration estimate if on-site wind speed and direction 
characteristic of plume dilution and transport are used as input to the 
model. In complex terrain, these winds can seldom be estimated 
accurately from the standard surface (10m level) measurements. 
Therefore, in order to increase confidence in model estimates, EPA 
recommends that wind data input to RTDM should be based on fixed 
measurements at stack top height. For stacks greater than 100m, the 
measurement height may be limited to 100m in height relative to stack 
base. However, for very tall stacks, see guidance in section 9.3.3.2. 
This recommendation is broadened to include wind data representative of 
plume transport height where such data are derived from measurements 
taken with remote sensing devices such as SODAR. The data from both 
fixed and remote measurements should meet quality assurance and recovery 
rate requirements. The user should also be aware that RTDM in the 
screening mode accepts the input of measured wind speeds at only one 
height. The default values for the wind speed profile exponents shown in 
Table 5-3 are used in the model to determine the wind speed at other 
heights. RTDM uses wind speed at stack top to calculate the plume rise 
and the critical dividing streamline height, and the wind speed at plume 
transport level to calculate dilution. RTDM treats wind direction as 
constant with height.
    RTDM makes use of the ``critical dividing streamline'' concept and 
thus treats plume interactions with terrain quite differently from other 
models such as SHORTZ and COMPLEX I. The plume height relative to the 
critical dividing streamline determines whether the plume impacts the 
terrain, or is lifted up and over the terrain. The receptor spacing to 
identify maximum impact concentrations is quite critical depending on 
the location of the plume in the vertical. Analysis of the expected 
plume height relative to the height of the critical dividing streamline 
should be performed for differing meteorological conditions in order to 
help develop an

[[Page 964]]

appropriate array of receptors. Then it is advisable to model the area 
twice according to the suggestions in section 5.2.
    5.2.1.6  Restrictions. For screening analyses using the Valley 
Screening Technique, COMPLEX I or RTDM, a sector greater than 22\1/
2\ deg. should not be allowed. Full ground reflection should always be 
used in the Valley Screening Technique and COMPLEX I.

                   5.2.2 Refined Analytical Techniques

    When the results of the screening analysis demonstrate a possible 
violation of NAAQS or the controlling PSD increments, a more refined 
analysis may need to be conducted.
    The Complex Terrain Dispersion Model PLus Algorithms for Unstable 
Situations (CTDMPLUS) is a refined air quality model that is preferred 
for use in all stability conditions for complex terrain applications. 
CTDMPLUS is a sequential model that requires five input files: (1) 
General program specifications; (2) a terrain data file; (3) a receptor 
file; (4) a surface meteorological data file; and (5) a user created 
meteorological profile data file. Two optional input files consist of 
hourly emissions parameters and a file containing upper air data from 
rawinsonde data files, e.g., a National Climatic Data Center TD-6201 
file, unless there are no hours categorized as unstable in the record. 
The model description and user instructions are contained in Volume 1 of 
the User's Guide.22 Separate publications 23,24 describe the 
terrain preprocessor system and the meteorological preprocessor program. 
In Part I of a technical article 92 is a discussion of the model 
and its preprocessors; the model's performance characteristics are 
discussed in Part II of the same article.93 The size of the 
CTDMPLUS executable file on a personal computer is approximately 360K 
bytes. The model produces hourly average concentrations of stable 
pollutants, i.e., chemical transformation or decay of species and 
settling/deposition are not simulated. To obtain concentration averages 
corresponding to the NAAQS, e.g., 3- or 24-hour, or annual averages, the 
user must execute a postprocessor program such as CHAVG.19 CTDMPLUS 
is applicable to all receptors on terrain elevations above stack top. 
However, the model contains no algorithms for simulating building 
downwash or the mixing or recirculation found in cavity zones in the lee 
of a hill. The path taken by a plume through an array of hills cannot be 
simulated. CTDMPLUS does not explicitly simulate calm meteorological 
periods, and for those situations the user should follow the guidance in 
Section 9.3.4. The user should follow the recommendations in the User's 
Guide under General Program Specifications for: (1) Selecting mixed 
layer heights, (2) setting minimum scalar wind speed to 1 m/s, and (3) 
scaling wind direction with height. Close coordination with the Regional 
Office is essential to insure a consistent, technically sound 
application of this model.
    The performance of CTDMPLUS is greatly improved by the use of 
meteorological data from several levels up to plume height. However, due 
to the vast range of source-plume-hill geometries possible in complex 
terrain, detailed requirements for meteorological monitoring in support 
of refined analyses using CTDMPLUS should be determined on a case-by-
case basis. The following general guidance should be considered in the 
development of a meteorological monitoring protocol for regulatory 
applications of CTDMPLUS and reviewed in detail by the Regional Office 
before initiating any monitoring. As appropriate, the On-Site 
Meteorological Program Guidance document 66 should be consulted for 
specific guidance on siting requirements for meteorological towers, 
selection and exposure of sensors, etc. As more experience is gained 
with the model in a variety of circumstances, more specific guidance may 
be developed.
    Site specific meteorological data are critical to dispersion 
modeling in complex terrain and, consequently, the meteorological 
requirements are more demanding than for simple terrain. Generally, 
three different meteorological files (referred to as surface, profile, 
and rawin files) are needed to run CTDMPLUS in a regulatory mode.
    The surface file is created by the meteorological preprocessor 
(METPRO) 24 based on on-site measurements or estimates of solar 
and/or net radiation, cloud cover and ceiling, and the mixed layer 
height. These data are used in METPRO to calculate the various surface 
layer scaling parameters (roughness length, friction velocity, and 
Monin-Obukhov length) which are needed to run the model. All of the user 
inputs required for the surface file are based either on surface 
observations or on measurements at or below 10m.
    The profile data file is prepared by the user with on-site 
measurements (from at least three levels) of wind speed, wind direction, 
turbulence, and potential temperature. These measurements should be 
obtained up to the representative plume height(s) of interest (i.e., the 
plume height(s) under those conditions important to the determination of 
the design concentration). The representative plume height(s) of 
interest should be determined using an appropriate complex terrain 
screening procedure (e.g., CTSCREEN) and should be documented in the 
monitoring/modeling protocol. The necessary meteorological measurements 
should be obtained from an appropriately sited meteorological tower 
augmented by SODAR if the representative plume height(s) of interest 
exceed 100m. The meteorological tower need not exceed the lesser of the 
representative plume height of interest (the highest plume height

[[Page 965]]

if there is more than one plume height of interest) or 100m.
    Locating towers on nearby terrain to obtain stack height or plume 
height measurements for use in profiles by CTDMPLUS should be avoided 
unless it can clearly be demonstrated that such measurements would be 
representative of conditions affecting the plume.
    The rawin file is created by a second meteorological preprocessor 
(READ62) 24 based on NWS (National Weather Service) upper air data. 
The rawin file is used in CTDMPLUS to calculate vertical potential 
temperature gradients for use in estimating plume penetration in 
unstable conditions. The representativeness of the off-site NWS upper 
air data should be evaluated on a case-by-case basis.
    In the absence of an appropriate refined model, screening results 
may need to be used to determine air quality impact and/or emission 
limits.

     Table 5-1a.--Neutral/Stable Meteorological Matrix for Ctscreen     
                                                                        
  Variable                          Specific Values                     
                                                                        


U (m/s)                                                                      1.0     2.0     3.0     4.0     5.0
v (m/s)                                                             0.3    0.75  ......  ......  ......
w (m/s)                                                            0.08    0.15    0.30    0.75  ......
/z                                                                                  
 (K/m)                                                                      0.01    0.02   0.035  ......  ......
                                                                                                                
WD (Wind direction optimized internally for each meteorological                                                 
 combination)                                                                                                   
----------------------------------------------------------------------------------------------------------------
Exceptions:                                                                                                     
(1) If U  2 m/s and v  0.3 m/s, then include w = 0.04 m/s.              
(2) If w = 0.75 m/s and U  3.0 m/s, then /z is limited to  0.01 K/m.                                                                                             
(3) If U  4 m/s, then w  0.15 m/s.                                               
(4) w  v                                                                           


   Table 5-1b.--Unstable/Convective Meteorological Matrix For Ctscreen  
                                                                        
  Variable                          Specific Values                     
                                                                        


U (m/s)                                                                      1.0     2.0     3.0     4.0     5.0
u* (m/s)                                                                     0.1     0.3     0.5  ......  ......
L (m)                                                                        -10     -50     -90  ......  ......
                                                                                                                
/z (K/m) 0.030 (potential temperature                                               
 gradient above zi)                                                                                             
                                                                                                                
zi (m)                                                                      0.5h    1.0h    1.5h  ......  ......
----------------------------------------------------------------------------------------------------------------
Where h = terrain height.                                                                                       


 Table 5-2.--Preferred Options for the SHORTZ/LONGZ Computer Codes When 
                        Used in a Screening Mode                        
------------------------------------------------------------------------
            Option                             Selection                
------------------------------------------------------------------------
I Switch 9...................  If using NWS data, set = 0.              
                               If using site-specific data, check with  
                                the Regional Office.                    
I Switch 17..................  Set = 1 (urban option).                  
GAMMA 1......................  Use default values (0.6 entrainment      
                                coefficient).                           
GAMMA 2......................  Always default to ``stable''.            
XRY..........................  Set = 0 (50m rectilinear expansion       
                                distance).                              
NS, VS, FRQ (SHORTZ).........  Do not use (applicable only in flat      
  (particle size, etc.)......   terrain.)                               
                               NUS, VS, FRQ (LONGZ)                     
ALPHA........................  Select 0.9.                              
SIGEPU.......................  (Use Cramer curves (default); if site-   
                                specific turbulence data are available, 
                                see Regional Office for advice.         
                                 (dispersion parameters)                
                               SIGAPU                                   
P (wind profile).............   Select default values given in Table 2-2
                                of User's Instructions; if site-specific
                                data are available, see Regional Office 
                                for advice.                             
------------------------------------------------------------------------



[[Page 966]]


             TABLE 5-3.--Preferred Options for the RTDM Computer Code When Used in a Screening Mode             
----------------------------------------------------------------------------------------------------------------
        Parameter                       Variable                       Value                    Remarks         
----------------------------------------------------------------------------------------------------------------
PR001-003................  SCALE                              ......................  Scale factors assuming    
                                                                                       horizontal distance is in
                                                                                       kilometers, vertical     
                                                                                       distance is in feet, and 
                                                                                       wind speed is in meters  
                                                                                       per second.              
PR004....................  ZWIND1                             Wind measurement        See Section 5.2.1.4.      
                                                               height.                                          
                           ZWIND2                             Not used..............  Height of second          
                                                                                       anemometer.              
                           IDILUT                             1.....................  Dilution wind speed scaled
                                                                                       to plume height.         
                           ZA                                  0 (default)..........  Anemometer-terrain height 
                                                                                       above stack base.        
PR005....................  EXPON                              0.09, 0.11, 0.12,       Wind profile exponents.   
                                                               0.14, 0.2, 0.3                                   
                                                               (default).                                       
PR006....................  ICOEF                              3 (default)...........  Briggs Rural/ASME (1979)  
                                                                                       dispersion parameters.   
PR009....................  IPPP                               0 (default)...........  Partial plume penetration;
                                                                                       not used.                
PR010....................  IBUOY                              1 (default)...........  Buoyancy-enhanced         
                                                                                       dispersion is used.      
                           ALPHA                              3.162 (default).......  Buoyancy-enhanced         
                                                                                       dispersion coefficient.  
PR011....................  IDMX                               1 (default)...........  Unlimited mixing height   
                                                                                       for stable conditions.   
PR012....................  ITRANS                             1 (default)...........  Transitional plume rise is
                                                                                       used.                    
PR.013...................  TERCOR                             6*0.5 (default).......  Plume patch correction    
                                                                                       factors.                 
PR014....................  RVPTG                              0.02, 0.035 (default).  Vertical potential        
                                                                                       temperature gradient     
                                                                                       values for stabilities E 
                                                                                       and F.                   
PR015....................  ITIPD                              1.....................  Stack-tip downwash is     
                                                                                       used.                    
PR020....................  ISHEAR                             0 (default)...........  Wind shear; not used      
PR022....................  IREFL                              1 (default)...........  Partial surface reflection
                                                                                       is used.                 
PR023....................  IHORIZ                             2 (default)...........  Sector averaging.         
                           SECTOR                             6*22.5 (default)......  Using 22.5 deg. sectors.  
PR016 to 019; 021; and     IY, IZ, IRVPTG, IHVPTG; IEPS;      0.....................  Hourly values of          
 024.                       IEMIS                                                      turbulence, vertical     
                                                                                       potential temperature    
                                                                                       gradient, wind speed     
                                                                                       profile exponents, and   
                                                                                       stack emissions are not  
                                                                                       used.                    
----------------------------------------------------------------------------------------------------------------


       6.0  Models for Ozone, Carbon Monoxide and Nitrogen Dioxide

                             6.1  Discussion

    Models discussed in this section are applicable to pollutants often 
associated with mobile sources, e.g., ozone (O3), carbon monoxide 
(CO) and nitrogen dioxide (NO2). Where stationary sources of CO and 
NO2 are of concern, the reader is referred to sections 4 and 5.
    A control agency with jurisdiction over areas with significant ozone 
problems and which has sufficient resources and data to use a 
photochemical dispersion model is encouraged to do so. Experience with 
and evaluations of the Urban Airshed Model show it to be an acceptable, 
refined approach, and better data bases are becoming available that 
support the more sophisticated analytical procedures. However, empirical 
models (e.g., EKMA) fill the gap between more sophisticated 
photochemical dispersion models and proportional (rollback) modeling 
techniques and may be the only applicable procedure if the available 
data bases are insufficient for refined dispersion modeling.
    Models for assessing the impact of carbon monoxide emissions are 
needed for a number of different purposes, e.g., to evaluate the effects 
of point sources, congested intersections and highways, as well as the 
cumulative effect on ambient CO concentrations of all sources of CO in 
an urban area.94,95
    Nitrogen oxides are reactive and also an important contribution to 
the photochemical ozone problem. They are usually of most concern in 
areas of high ozone concentrations. Unless suitable photochemical 
dispersion models are used, assumptions regarding the conversion of NO 
to NO2 are required when modeling. Site-specific conversion factors 
may be developed. If site-specific conversion factors are not available 
or photochemical models are not used, NO2 modeling should be 
considered only a screening procedure.

                          6.2  Recommendations

                         6.2.1  Models for Ozone

    The Urban Airshed Model (UAM) 19,28 is recommended for 
photochemical or reactive pollutant modeling applications involving 
entire urban areas. To ensure proper execution of this numerical model, 
users must satisfy the extensive input data requirements for the model 
as listed in appendix A and the users guide. Users are also referred to 
the ``Guideline for Regulatory Application of the Urban Airshed Model'' 
29 for additional data requirements and procedures for operating 
this model.
    The empirical model, City-specific EKMA,19, 30-33 has limited 
applicability for urban ozone analyses. Model users should consult the 
appropriate Regional Office on a

[[Page 967]]

case-by-case basis concerning acceptability of this modeling technique.
    Appendix B contains some additional models that may be applied on a 
case-by-case basis for photochemical or reactive pollutant modeling. 
Other photochemical models, including multi-layered trajectory models, 
that are available may be used if shown to be appropriate. Most 
photochemical dispersion models require emission data on individual 
hydrocarbon species and may require three dimensional meteorological 
information on an hourly basis. Reasonably sophisticated computer 
facilities are also often required. Because the input data are not 
universally available and studies to collect such data are very resource 
intensive, there are only limited evaluations of those models.
    For those cases which involve estimating the impact on ozone 
concentrations due to stationary sources of VOC and NOx, whether 
for permitting or other regulatory cases, the model user should consult 
the appropriate Regional Office on the acceptability of the modeling 
technique.
    Proportional (rollback/forward) modeling is not an acceptable 
procedure for evaluating ozone control strategies.

                    6.2.2  Models for Carbon Monoxide

    For analyzing CO impacts at roadway intersections, users should 
follow the procedures in the ``Guideline for Modeling Carbon Monoxide 
from Roadway Intersections''.\34\ The recommended model for such 
analyses is CAL3QHC.\35\ This model combines CALINE3 (already in 
Appendix A) with a traffic model to calculate delays and queues that 
occur at signalized intersections. In areas where the use of either 
TEXIN2 or CALINE4 has previously been established, its use may continue. 
The capability exists for these intersection models to be used in either 
a screening or refined mode. The screening approach is described in 
reference 34; a refined approach may be considered on a case-by-case 
basis. The latest version of the MOBILE (mobile source emission factor) 
model should be used for emissions input to intersection models.
    For analyses of highways characterized by uninterrupted traffic 
flows, CALINE3 is recommended, with emissions input from the latest 
version of the MOBILE model.
    The recommended model for urban areawide CO analyses is RAM or Urban 
Airshed Model (UAM); see appendix A. Information on SIP development and 
requirements for using these models can be found in references 34, 96, 
97 and 98.
    Where point sources of CO are of concern, they should be treated 
using the screening and refined techniques described in Section 4 or 5 
of the Guideline.

           6.2.3  Models for Nitrogen Dioxide (Annual Average)

    a. A tiered screening approach is recommended to obtain annual 
average estimates of NO2 from point sources for New Source Review 
analysis, including PSD, and for SIP planning purposes. This multi-
tiered approach is conceptually shown in Figure 6-1 below:


 Figure 6-1.--Multi-Tiered Screening Approach for Estimating Annual NO2 
                    Concentrations From Point Sources                   
                                                                        
                                                                        
                                                                         
Tier 1:                                                                 
  Assume Total Conversion of NO to NO2                                  
                                                                        
Tier 2:                                                                 
  Multiply Annual NOX Estimate by Empirically Derived NO2 / NOX Ratio   
                                                                        

    b. For Tier 1 (the initial screen), use an appropriate Gaussian 
model from appendix A to estimate the maximum annual average 
concentration and assume a total conversion of NO to NO2. If the 
concentration exceeds the NAAQS and/or PSD increments for NO2, 
proceed to the 2nd level screen.
    c. For Tier 2 (2nd level) screening analysis, multiply the Tier 1 
estimate(s) by an empirically derived NO2 / NOX value of 0.75 
(annual national default).\36\ An annual NO2 / NOX ratio 
differing from 0.75 may be used if it can be shown that such a ratio is 
based on data likely to be representative of the location(s) where 
maximum annual impact from the individual source under review occurs. In 
the case where several sources contribute to consumption of a PSD 
increment, a locally derived annual NO2 / NOX ratio should 
also be shown to be representative of the location where the maximum 
collective impact from the new plus existing sources occurs.
    d. In urban areas, a proportional model may be used as a preliminary 
assessment to evaluate control strategies to meet the NAAQS for multiple 
minor sources, i.e. minor point, area and mobile sources of NOX; 
concentrations resulting from major point sources should be estimated 
separately as discussed above, then added to the impact of the minor 
sources. An acceptable screening technique for urban complexes is to 
assume that all NOX is emitted in the form of NO2 and to use a 
model from appendix A for nonreactive pollutants to estimate NO2 
concentrations. A more accurate estimate can be obtained by: (1) 
calculating the annual average concentrations of NOX with an urban 
model, and (2) converting these estimates to NO2 concentrations 
using an empirically derived annual NO2 / NOX ratio. A value 
of 0.75 is recommended for this ratio. However, a spatially averaged 
annual NO2 / NOX ratio

[[Page 968]]

may be determined from an existing air quality monitoring network and 
used in lieu of the 0.75 value if it is determined to be representative 
of prevailing ratios in the urban area by the reviewing agency. To 
ensure use of appropriate locally derived annual NO2 / NOX 
ratios, monitoring data under consideration should be limited to those 
collected at monitors meeting siting criteria defined in 40 CFR part 58, 
appendix D as representative of ``neighborhood'', ``urban'', or 
``regional'' scales.
    Furthermore, the highest annual spatially averaged NO2 / 
NOX ratio from the most recent 3 years of complete data should be 
used to foster conservatism in estimated impacts.
    e. To demonstrate compliance with NO2 PSD increments in urban 
areas, emissions from major and minor sources should be included in the 
modeling analysis. Point and area source emissions should be modeled as 
discussed above. If mobile source emissions do not contribute to 
localized areas of high ambient NO2 concentrations, they should be 
modeled as area sources. When modeled as area sources, mobile source 
emissions should be assumed uniform over the entire highway link and 
allocated to each area source grid square based on the portion of 
highway link within each grid square. If localized areas of high 
concentrations are likely, then mobile sources should be modeled as line 
sources with the preferred model ISCLT2.
    f. More refined techniques to handle special circumstances may be 
considered on a case-by-case basis and agreement with the reviewing 
authority should be obtained. Such techniques should consider individual 
quantities of NO and NO2 emissions, atmospheric transport and 
dispersion, and atmospheric transformation of NO to NO2. Where they 
are available, site-specific data on the conversion of NO to NO2 
may be used. Photochemical dispersion models, if used for other 
pollutants in the area, may also be applied to the NOX problem.

                      7.0  Other Model Requirements

                             7.1  Discussion

    This section covers those cases where specific techniques have been 
developed for special regulatory programs. Most of the programs have, or 
will have when fully developed, separate guidance documents that cover 
the program and a discussion of the tools that are needed. The following 
paragraphs reference those guidance documents, when they are available. 
No attempt has been made to provide a comprehensive discussion of each 
topic since the reference documents were designed to do that. This 
section will undergo periodic revision as new programs are added and new 
techniques are developed.
    Other Federal agencies have also developed specific modeling 
approaches for their own regulatory or other requirements. An example of 
this is the three-volume manual issued by the U.S. Department of Housing 
and Urban Development, ``Air Quality Considerations in Residential 
Planning.'' \37\ Although such regulatory requirements and manuals may 
have come about because of EPA rules or standards, the implementation of 
such regulations and the use of the modeling techniques is under the 
jurisdiction of the agency issuing the manual or directive.
    The need to estimate impacts at distances greater than 50km (the 
nominal distance to which EPA considers most Gaussian models applicable) 
is an important one especially when considering the effects from 
secondary pollutants. Unfortunately, models submitted to EPA have not as 
yet undergone sufficient field evaluation to be recommended for general 
use. Existing data bases from field studies at mesoscale and long range 
transport distances are limited in detail. This limitation is a result 
of the expense to perform the field studies required to verify and 
improve mesoscale and long range transport models. Particularly 
important and sparse are meteorological data adequate for generating 
three dimensional wind fields. Application of models to complicated 
terrain compounds the difficulty. EPA has completed limited evaluation 
of several long range transport (LRT) models against two sets of field 
data. The evaluation results are discussed in the document, ``Evaluation 
of Short-Term Long-Range Transport Models.'' 99,100 For the time 
being, long range and mesoscale transport models must be evaluated for 
regulatory use on a case-by-case basis.
    There are several regulatory programs for which air pathway analysis 
procedures and modeling techniques have been developed. For continuous 
emission releases, ISC forms the basis of many analytical techniques. 
EPA is continuing to evaluate the performance of a number of proprietary 
and public domain models for intermittent and non-stack emission 
releases. Until EPA completes its evaluation, it is premature to 
recommend specific models for air pathway analyses of intermittent and 
non-stack releases in this guideline.
    Regional scale models are used by EPA to develop and evaluate 
national policy and assist State and local control agencies. Two such 
models are the Regional Oxidant Model (ROM) 101,102,103 and the 
Regional Acid Deposition Model (RADM).\104\ Due to the level of 
resources required to apply these models, it is not envisioned that 
regional scale models will be used directly in most model applications.

                          7.2  Recommendations

                 7.2.1  Fugitive Dust/Fugitive Emissions

    Fugitive dust usually refers to the dust put into the atmosphere by 
the wind blowing

[[Page 969]]

over plowed fields, dirt roads or desert or sandy areas with little or 
no vegetation. Reentrained dust is that which is put into the air by 
reason of vehicles driving over dirt roads (or dirty roads) and dusty 
areas. Such sources can be characterized as line, area or volume 
sources. Emission rates may be based on site-specific data or values 
from the general literature.
    Fugitive emissions are usually defined as emissions that come from 
an industrial source complex. They include the emissions resulting from 
the industrial process that are not captured and vented through a stack 
but may be released from various locations within the complex. Where 
such fugitive emissions can be properly specified, the ISC model, with 
consideration of gravitational settling and dry deposition, is the 
recommended model. In some unique cases a model developed specifically 
for the situation may be needed.
    Due to the difficult nature of characterizing and modeling fugitive 
dust and fugitive emissions, it is recommended that the proposed 
procedure be cleared by the appropriate Regional Office for each 
specific situation before the modeling exercise is begun.

                        7.2.2  Particulate Matter

    The new particulate matter NAAQS, promulgated on July 1, 1987 (52 FR 
24634), includes only particles with an aerodynamic diameter less than 
or equal to a nominal 10 micrometers (PM-10). EPA has also proposed 
regulations for PSD increments measured as PM-10 in a notice published 
on October 5, 1989 (54 FR 41218).
    Screening techniques like those identified in section 4 are also 
applicable to PM-10 and to large particles. It is recommended that 
subjectively determined values for ``half-life'' or pollutant decay not 
be used as a surrogate for particle removal. Conservative assumptions 
which do not allow removal or transformation are suggested for 
screening. Proportional models (rollback/forward) may not be applied for 
screening analysis, unless such techniques are used in conjunction with 
receptor modeling.
    Refined models such as those in Section 4 are recommended for PM-10 
and large particles. However, where possible, particle size, gas-to-
particle formation, and their effect on ambient concentrations may be 
considered. For urban-wide refined analyses CDM 2.0 or RAM should be 
used. CRSTER and MPTER are recommended for point sources of small 
particles. For source-specific analyses of complicated sources, the ISC 
model is preferred. No model recommended for general use at this time 
accounts for secondary particulate formation or other transformations in 
a manner suitable for SIP control strategy demonstrations. Where 
possible, the use of receptor models \38\,\39\,\105\,\106\,\107\ in 
conjunction with dispersion models is encouraged to more precisely 
characterize the emissions inventory and to validate source specific 
impacts calculated by the dispersion model. A SIP development 
guideline,\108\ model reconciliation guidance,\106\ and an example model 
application \109\ are available to assist in PM-10 analyses and control 
strategy development.
    Under certain conditions, recommended dispersion models are not 
available or applicable. In such circumstances, the modeling approach 
should be approved by the appropriate Regional Office on a case-by-case 
basis. For example, where there is no recommended air quality model and 
area sources are a predominant component of PM-10, an attainment 
demonstration may be based on rollback of the apportionment derived from 
two reconciled receptor models, if the strategy provides a conservative 
demonstration of attainment. At this time, analyses involving model 
calculations for distances beyond 50km and under stagnation conditions 
should also be justified on a case-by-case basis (see Sections 7.2.6 and 
8.2.10).
    As an aid to assessing the impact on ambient air quality of 
particulate matter generated from prescribed burning activities, 
reference 110 is available.

                               7.2.3  Lead

    The air quality analyses required for lead implementation plans are 
given in Sec. Sec. 51.83, 51.84 and 51.85 of 40 CFR part 51. Sections 
51.83 and 51.85 require the use of a modified rollback model as a 
minimum to demonstrate attainment of the lead air quality standard but 
the use of a dispersion model is the preferred approach. Section 51.83 
requires the analysis of an entire urban area if the measured lead 
concentration in the urbanized area exceeds a quarterly (three month) 
average of 4.0 g/m\3\. Section 51.84 requires the use of a 
dispersion model to demonstrate attainment of the lead air quality 
standard around specified lead point sources. For other areas reporting 
a violation of the lead standard, Sec. 51.85 requires an analysis of the 
area in the vicinity of the monitor reporting the violation. The NAAQS 
for lead is a quarterly (three month) average, thus requiring the use of 
modeling techniques that can provide long-term concentration estimates.
    The SIP should contain an air quality analysis to determine the 
maximum quarterly lead concentration resulting from major lead point 
sources, such as smelters, gasoline additive plants, etc. For these 
applications the ISC model is preferred, since the model can account for 
deposition of particles and the impact of fugitive emissions. If the 
source is located in complicated terrain or is subject to unusual 
climatic conditions, a case-specific review by the appropriate Regional 
Office may be required.

[[Page 970]]

    In modeling the effect of traditional line sources (such as a 
specific roadway or highway) on lead air quality, dispersion models 
applied for other pollutants can be used. Dispersion models such as 
CALINE3 and APRAC-3 have been widely used for modeling carbon monoxide 
emissions from highways. However, where deposition is of concern, the 
line source treatment in ISC may be used. Also, where there is a point 
source in the middle of a substantial road network, the lead 
concentrations that result from the road network should be treated as 
background (see Section 9.2); the point source and any nearby major 
roadways should be modeled separately using the ISC model.
    To model an entire major urban area or to model areas without 
significant sources of lead emissions, as a minimum a proportional 
(rollback) model may be used for air quality analysis. The rollback 
philosophy assumes that measured pollutant concentrations are 
proportional to emissions. However, urban or other dispersion models are 
encouraged in these circumstances where the use of such models is 
feasible.
    For further information concerning the use of models in the 
development of lead implementation plans, the documents ``Supplementary 
Guidelines for Lead Implementation Plans,''\40\ and ``Updated 
Information on Approval and Promulgation of Lead Implementation 
Plans,''\41\ should be consulted.

                            7.2.4  Visibility

    The visibility regulations as promulgated in December 1980 b 
require consideration of the effect of new sources on the visibility 
values of Federal Class I areas. The state of scientific knowledge 
concerning identifying, monitoring, modeling, and controlling visibility 
impairment is contained in an EPA report ``Protecting Visibility: An EPA 
Report to Congress''.\42\ In 1985, EPA promulgated Federal 
Implementation Plans (FIPs) for states without approved visibility 
provisions in their SIPs. A monitoring plan was established as part of 
the FIPs.c
---------------------------------------------------------------------------

    \b\ 40 CFR 51.300-307.
    \c\ 40 CFR 51.300-307.
---------------------------------------------------------------------------

    Guidance and a screening model, VISCREEN, is contained in the EPA 
document ``Workbook for Plume Visual Impact Screening and Analysis 
(Revised).''\43\ VISCREEN can be used to calculate the potential impact 
of a plume of specified emissions for specific transport and dispersion 
conditions. If a more comprehensive analysis is required, any refined 
model should be selected in consultation with the EPA Regional Office 
and the appropriate Federal Land Manager who is responsible for 
determining whether there is an adverse effect by a plume on a Class I 
area.
    PLUVUE II, listed in Appendix B, may be applied on a case-by-case 
basis when refined plume visibility evaluations are needed. Plume 
visibility models have been evaluated against several data 
sets.44,45

              7.2.5  Good Engineering Practice Stack Height

    The use of stack height credit in excess of Good Engineering 
Practice (GEP) stack height or credit resulting from any other 
dispersion technique is prohibited in the development of emission 
limitations by 40 CFR 51.118 and 40 CFR 51.164. The definitions of GEP 
stack height and dispersion technique are contained in 40 CFR 51.100. 
Methods and procedures for making the appropriate stack height 
calculations, determining stack height credits and an example of 
applying those techniques are found in references 46, 47, 48, and 49.
    If stacks for new or existing major sources are found to be less 
than the height defined by EPA's refined formula for determining GEP 
height,d then air quality impacts associated with cavity or wake 
effects due to the nearby building structures should be determined. 
Detailed downwash screening procedures 18 for both the cavity and 
wake regions should be followed. If more refined concentration estimates 
are required, the Industrial Source Complex (ISC) model contains 
algorithms for building wake calculations and should be used. Fluid 
modeling can provide a great deal of additional information for 
evaluating and describing the cavity and wake effects.
---------------------------------------------------------------------------

    \d\ The EPA refined formula height is defined as H + 1.5L (see 
Reference 46).
---------------------------------------------------------------------------

          7.2.6  Long Range Transport (LRT) (i.e., beyond 50km)

    Section 165(e) of the Clean Air Act requires that suspected 
significant impacts on PSD Class I areas be determined. However, 50km is 
the useful distance to which most Gaussian models are considered 
accurate for setting emission limits. Since in many cases PSD analyses 
may show that Class I areas may be threatened at distances greater than 
50km from new sources, some procedure is needed to (1) determine if a 
significant impact will occur, and (2) identify the model to be used in 
setting an emission limit if the Class I increments are threatened 
(models for this purpose should be approved for use on a case-by-case 
basis as required in section 3.2). This procedure and the models 
selected for use should be determined in consultation with the EPA 
Regional Office and the appropriate Federal Land Manager (FLM). While 
the ultimate decision on whether a Class I area is adversely affected is 
the responsibility of the permitting authority, the FLM has

[[Page 971]]

an affirmative responsibility to protect air quality related values that 
may be affected.
    If LRT is determined to be important, then estimates utilizing an 
appropriate refined model for receptors at distances greater than 50 km 
should be obtained. MESOPUFF II, listed in appendix B, may be applied on 
a case-by-case basis when LRT estimates are needed. Additional 
information on applying this model is contained in the EPA document ``A 
Modeling Protocol For Applying MESOPUFF II to Long Range Transport 
Problems''.111

        7.2.7  Modeling Guidance for Other Governmental Programs

    When using the models recommended or discussed in this guideline in 
support of programmatic requirements not specifically covered by EPA 
regulations, the model user should consult the appropriate Federal or 
State agency to ensure the proper application and use of that model. For 
modeling associated with PSD permit applications that involve a Class I 
area, the appropriate Federal Land Manager should be consulted on all 
modeling questions.
    The Offshore and Coastal Dispersion (OCD) model 112 was 
developed by the Minerals Management Service and is recommended for 
estimating air quality impact from offshore sources on onshore flat 
terrain areas. The OCD model is not recommended for use in air quality 
impact assessments for onshore sources. Sources located on or just 
inland of a shoreline where fumigation is expected should be treated in 
accordance with section 8.2.9.
    The Emissions and Dispersion Modeling System (EDMS) 113 was 
developed by the Federal Aviation Administration and the United States 
Air Force and is recommended for air quality assessment of primary 
pollutant impacts at airports or air bases. Regulatory application of 
EDMS is intended for estimating the cumulative effect of changes in 
aircraft operations, point source, and mobile source emissions on 
pollutant concentrations. It is not intended for PSD, SIP, or other 
regulatory air quality analyses of point or mobile sources at or 
peripheral to airport property that are independent of changes in 
aircraft operations. If changes in other than aircraft operations are 
associated with analyses, a model recommended in chapter 4, 5, or 6 
should be used.

      7.2.8  Air Pathway Analyses (Air Toxics and Hazardous Waste)

    Modeling is becoming an increasingly important tool for regulatory 
control agencies to assess the air quality impact of releases of toxics 
and hazardous waste materials. Appropriate screening techniques 114 
115 for calculating ambient concentrations due to various well-defined 
neutrally buoyant toxic/hazardous pollutant releases are available.
    Several regulatory programs within EPA have developed modeling 
techniques and guidance for conducting air pathway analyses as noted in 
references 116-129. ISC forms the basis of the modeling procedures for 
air pathway analyses of many of these regulatory programs and, where 
identified, is appropriate for obtaining refined ambient concentration 
estimates of neutrally buoyant continuous air toxic releases from 
traditional sources. Appendix A to this Guideline contains additional 
models appropriate for obtaining refined estimates of continuous air 
toxic releases from traditional sources. Appendix B contains models that 
may be used on a case-by-case basis for obtaining refined estimates of 
denser-than-air intermittent gaseous releases, e.g., DEGADIS; 130 
guidance for the use of such models is also available.131
    Many air toxics models require input of chemical properties and/or 
chemical engineering variables in order to appropriately characterize 
the source emissions prior to dispersion in the atmosphere; reference 
132 is one source of helpful data. In addition, EPA has numerous 
programs to determine emission factors and other estimates of air toxic 
emissions. The Regional Office should be consulted for guidance on 
appropriate emission estimating procedures and any uncertainties that 
may be associated with them.

                  8.0  General Modeling Considerations

                             8.1  Discussion

    This section contains recommendations concerning a number of 
different issues not explicitly covered in other sections of this guide. 
The topics covered here are not specific to any one program or modeling 
area but are common to nearly all modeling analyses.

                          8.2  Recommendations

                      8.2.1  Design Concentrations

    8.2.1.1  Design Concentrations for Criteria Pollutants with 
Deterministic Standards. An air quality analysis for SO2, CO, Pb, 
and NO2 is required to determine if the source will (1) cause a 
violation of the NAAQS, or (2) cause or contribute to air quality 
deterioration greater than the specified allowable PSD increment. For 
the former, background concentration (see Section 9.2) should be added 
to the estimated impact of the source to determine the design 
concentration. For the latter, the design concentration includes impact 
from all increment consuming sources.
    If the air quality analyses are conducted using the period of 
meteorological input data recommended in section 9.3.1.2 (e.g., 5 years 
of NWS data or 1 year of site-specific data), then the design 
concentration based on the

[[Page 972]]

highest, second-highest short term concentration or long term average, 
whichever is controlling, should be used to determine emission 
limitations to assess compliance with the NAAQS and to determine PSD 
increments.
    When sufficient and representative data exist for less than a 5-year 
period from a nearby NWS site, or when on-site data have been collected 
for less than a full continuous year, or when it has been determined 
that the on-site data may not be temporally representative, then the 
highest concentration estimate should be considered the design value. 
This is because the length of the data record may be too short to assure 
that the conditions producing worst-case estimates have been adequately 
sampled. The highest value is then a surrogate for the concentration 
that is not to be exceeded more than once per year (the wording of the 
deterministic standards). Also, the highest concentration should be used 
whenever selected worst-case conditions are input to a screening 
technique. This specifically applies to the use of techniques such as 
outlined in ``Screening Procedures for Estimating the Air Quality Impact 
of Stationary Sources, Revised''.\18\ Specific guidance for CO may be 
found in the ``Guideline for Modeling Carbon Monoxide from Roadway 
Intersections''.\34\
    If the controlling concentration is an annual average value and 
multiple years of data (on-site or NWS) are used, then the design value 
is the highest of the annual averages calculated for the individual 
years. If the controlling concentration is a quarterly average and 
multiple years are used, then the highest individual quarterly average 
should be considered the design value.
    As long a period of record as possible should be used in making 
estimates to determine design values and PSD increments. If more than 1 
year of site-specific data is available, it should be used.
    8.2.1.2  Design Concentrations for Criteria Pollutants with Expected 
Exceedance Standards. Specific instructions for the determination of 
design concentrations for criteria pollutants with expected exceedance 
standards, ozone and PM-10, are contained in special guidance documents 
for the preparation of SIPs for those pollutants.86 108 For all SIP 
revisions the user should check with the Regional Office to obtain the 
most recent guidance documents and policy memoranda concerning the 
pollutant in question.

                     8.2.2  Critical Receptor Sites

    Receptor sites for refined modeling should be utilized in sufficient 
detail to estimate the highest concentrations and possible violations of 
a NAAQS or a PSD increment. In designing a receptor network, the 
emphasis should be placed on receptor resolution and location, not total 
number of receptors. The selection of receptor sites should be a case-
bycase determination taking into consideration the topography, the 
climatology, monitor sites, and the results of the initial screening 
procedure. For large sources (those equivalent to a 500 MW power plant) 
and where violations of the NAAQS or PSD increment are likely, 360 
receptors for a polar coordinate grid system and 400 receptors for a 
rectangular grid system, where the distance from the source to the 
farthest receptor is 10km, are usually adequate to identify areas of 
high concentration. Additional receptors may be needed in the high 
concentration location if greater resolution is indicated by terrain or 
source factors.

                     8.2.3  Dispersion Coefficients

    Gaussian models used in most applications should employ dispersion 
coefficients consistent with those contained in the preferred models in 
Appendix A. Factors such as averaging time, urban/rural surroundings, 
and type of source (point vs. line) may dictate the selection of 
specific coefficients. Generally, coefficients used in appendix A models 
are identical to, or at least based on, Pasquill-Gifford coefficients 
\50\ in rural areas and McElroy-Pooler \51\ coefficients in urban areas.
    Research is continuing toward the development of methods to 
determine dispersion coefficients directly from measured or observed 
variables.52 53 No method to date has proved to be widely 
applicable. Thus, direct measurement, as well as other dispersion 
coefficients related to distance and stability, may be used in Gaussian 
modeling only if a demonstration can be made that such parameters are 
more applicable and accurate for the given situation than are algorithms 
contained in the preferred models.
    Buoyancy-induced dispersion (BID), as identified by Pasquill,\54\ is 
included in the preferred models and should be used where buoyant 
sources, e.g., those involving fuel combustion, are involved.

                       8.2.4  Stability Categories

    The Pasquill approach to classifying stability is generally required 
in all preferred models (Appendix A). The Pasquill method, as modified 
by Turner,\55\ was developed for use with commonly observed 
meteorological data from the National Weather Service and is based on 
cloud cover, insolation and wind speed.
    Procedures to determine Pasquill stability categories from other 
than NWS data are found in subsection 9.3. Any other method to determine 
Pasquill stability categories must be justified on a case-by-case basis.
    For a given model application where stability categories are the 
basis for selecting dispersion coefficients, both y and 
z should

[[Page 973]]

be determined from the same stability category. ``Split sigmas'' in that 
instance are not recommended.
    Sector averaging, which eliminates the y term, is 
generally acceptable only to determine long term averages, such as 
seasonal or annual, and when the meteorological input data are 
statistically summarized as in the STAR summaries. Sector averaging is, 
however, commonly acceptable in complex terrain screening methods.

                            8.2.5  Plume Rise

    The plume rise methods of Briggs 56 57 are incorporated in the 
preferred models and are recommended for use in all modeling 
applications. No provisions in these models are made for fumigation or 
multistack plume rise enhancement or the handling of such special plumes 
as flares; these problems should be considered on a case-by-case basis.
    Since there is insufficient information to identify and quantify 
dispersion during the transitional plume rise period, gradual plume rise 
is not generally recommended for use. There are two exceptions where the 
use of gradual plume rise is appropriate: (1) In complex terrain 
screening procedures to determine close-in impacts; (2) when calculating 
the effects of building wakes. The building wake algorithm in the ISC 
model incorporates and automatically (i.e., internally) exercises the 
gradual plume rise calculations. If the building wake is calculated to 
affect the plume for any hour, gradual plume rise is also used in 
downwind dispersion calculations to the distance of final plume rise, 
after which final plume rise is used.
    Stack tip downwash generally occurs with poorly constructed stacks 
and when the ratio of the stack exit velocity to wind speed is small. An 
algorithm developed by Briggs (Hanna, et al.) \57\ is the recommended 
technique for this situation and is found in the point source preferred 
models.
    Where aerodynamic downwash occurs due to the adverse influence of 
nearby structures, the algorithms included in the ISC2 mode1 \58\ should 
be used.

                     8.2.6  Chemical Transformation

    The chemical transformation of SO2 emitted from point sources 
or single industrial plants in rural areas is generally assumed to be 
relatively unimportant to the estimation of maximum concentrations when 
travel time is limited to a few hours. However, in urban areas, where 
synergistic effects among pollutants are of considerable consequence, 
chemical transformation rates may be of concern. In urban area 
applications, a half-life of 4 hours \55\ may be applied to the analysis 
of SO2 emissions. Calculations of transformation coefficients from 
site-specific studies can be used to define a ``half-life'' to be used 
in a Gaussian model with any travel time, or in any application, if 
appropriate documentation is provided. Such conversion factors for 
pollutant half-life should not be used with screening analyses.
    Complete conversion of NO to NO2 should be assumed for all 
travel time when simple screening techniques are used to model point 
source emissions of nitrogen oxides. If a Gaussian model is used, and 
data are available on seasonal variations in maximum ozone 
concentrations, the Ozone Limiting Method 36 is recommended. In 
refined analyses, case-by case conversion rates based on technical 
studies appropriate to the site in question may be used. The use of more 
sophisticated modeling techniques should be justified for individual 
cases.
    Use of models incorporating complex chemical mechanisms should be 
considered only on a case-by-case basis with proper demonstration of 
applicability. These are generally regional models not designed for the 
evaluation of individual sources but used primarily for region-wide 
evaluations. Visibility models also incorporate chemical transformation 
mechanisms which are an integral part of the visibility model itself and 
should be used in visibility assessments.

              8.2.7  Gravitational Settling and Deposition

    An ``infinite half-life'' should be used for estimates of particle 
concentrations when Gaussian models containing only exponential decay 
terms for treating settling and deposition are used.
    Gravitational settling and deposition may be directly included in a 
model if either is a significant factor. One preferred model (ISC) 
contains settling and deposition algorithms and is recommended for use 
when particulate matter sources can be quantified and settling and 
deposition are problems.

                    8.2.8  Urban/Rural Classification

    The selection of either rural or urban dispersion coefficients in a 
specific application should follow one of the procedures suggested by 
Irwin \59\ and briefly described below. These include a land use 
classification procedure or a population based procedure to determine 
whether the character of an area is primarily urban or rural.
    Land Use Procedure: (1) Classify the land use within the total area, 
Ao, circumscribed by a 3km radius circle about the source using the 
meteorological land use typing scheme proposed by Auer \60\; (2) if land 
use types I1, I2, C1, R2, and R3 account for 50 percent or more of 
Ao, use urban dispersion coefficients; otherwise, use appropriate 
rural dispersion coefficients.
    Population Density Procedure: (1) Compute the average population 
density, p per square kilometer with Ao as defined above; (2) If p 
is

[[Page 974]]

greater than 750 people/km2, use urban dispersion coefficients; 
otherwise use appropriate rural dispersion coefficients.
    Of the two methods the land use procedure is considered more 
definitive. Population density should be used with caution and should 
not be applied to highly industrialized areas where the population 
density may be low and thus a rural classification would be indicated, 
but the area is sufficiently built-up so that the urban land use 
criteria would be satisfied. In this case, the classification should 
already be ``urban'' and urban dispersion parameters should be used.
    Sources located in an area defined as urban should be modeled using 
urban dispersion parameters. Sources located in areas defined as rural 
should be modeled using the rural dispersion parameters. For analyses of 
whole urban complexes, the entire area should be modeled as an urban 
region if most of the sources are located in areas classified as urban.

                            8.2.9  Fumigation

    Fumigation occurs when a plume (or multiple plumes) is emitted into 
a stable layer of air and that layer is subsequently mixed to the ground 
either through convective transfer of heat from the surface or because 
of advection to less stable surroundings. Fumigation may cause 
excessively high concentrations but is usually rather short-lived at a 
given receptor. There are no recommended refined techniques to model 
this phenomenon. There are, however, screening procedures (see 
``Screening Procedures for Estimating the Air Quality Impact of 
Stationary Sources'' \18\) that may be used to approximate the 
concentrations. Considerable care should be exercised in using the 
results obtained from the screening techniques.
    Fumigation is also an important phenomenon on and near the shoreline 
of bodies of water. This can affect both individual plumes and area-wide 
emissions. When fumigation conditions are expected to occur from a 
source or sources with tall stacks located on or just inland of a 
shoreline, this should be addressed in the air quality modeling 
analysis. The Shoreline Dispersion Model (SDM) listed in Appendix B may 
be applied on a case-by-case basis when air quality estimates under 
shoreline fumigation conditions are needed.\133\ Information on the 
results of EPA's evaluation of this model together with other coastal 
fumigation models may be found in reference 134. Selection of the 
appropriate model for applications where shoreline fumigation is of 
concern should be determined in consultation with the Regional Office.

                           8.2.10  Stagnation

    Stagnation conditions are characterized by calm or very low wind 
speeds, and variable wind directions. These stagnant meteorological 
conditions may persist for several hours to several days. During 
stagnation conditions, the dispersion of air pollutants, especially 
those from low-level emissions sources, tends to be minimized, 
potentially leading to relatively high ground-level concentrations.
    When stagnation periods such as these are found to occur, they 
should be addressed in the air quality modeling analysis. WYNDvalley, 
listed in appendix B, may be applied on a case-by-case basis for 
stagnation periods of 24 hours or longer in valley-type situations. 
Caution should be exercised when applying the model to elevated point 
sources. Users should consult with the appropriate Regional Office prior 
to regulatory application of WYNDvalley.

                      8.2.11  Calibration of Models

    Calibration of long term multi-source models has been a widely used 
procedure even though the limitations imposed by statistical theory on 
the reliability of the calibration process for long term estimates are 
well known.61 In some cases, where a more accurate model is not 
available, calibration may be the best alternative for improving the 
accuracy of the estimated concentrations needed for control strategy 
evaluations.
    Calibration of short term models is not common practice and is 
subject to much greater error and misunderstanding. There have been 
attempts by some to compare short term estimates and measurements on an 
event-by-event basis and then to calibrate a model with results of that 
comparison. This approach is severely limited by uncertainties in both 
source and meteorological data and therefore it is difficult to 
precisely estimate the concentration at an exact location for a specific 
increment of time. Such uncertainties make calibration of short term 
models of questionable benefit. Therefore, short term model calibration 
is unacceptable.

                          9.0  Model Input Data

    Data bases and related procedures for estimating input parameters 
are an integral part of the modeling procedure. The most appropriate 
data available should always be selected for use in modeling analyses. 
Concentrations can vary widely depending on the source data or 
meteorological data used. Input data are a major source of 
inconsistencies in any modeling analysis. This section attempts to 
minimize the uncertainty associated with data base selection and use by 
identifying requirements for data used in modeling. A checklist of input 
data requirements for modeling analyses is included as appendix C. More 
specific data requirements and the format required for the individual

[[Page 975]]

models are described in detail in the users' guide for each model.

                            9.1  Source Data

                            9.1.1  Discussion

    Sources of pollutants can be classified as point, line and area/
volume sources. Point sources are defined in terms of size and may vary 
between regulatory programs. The line sources most frequently considered 
are roadways and streets along which there are well-defined movements of 
motor vehicles, but they may be lines of roof vents or stacks such as in 
aluminum refineries. Area and volume sources are often collections of a 
multitude of minor sources with individually small emissions that are 
impractical to consider as separate point or line sources. Large area 
sources are typically treated as a grid network of square areas, with 
pollutant emissions distributed uniformly within each grid square.
    Emission factors are compiled in an EPA publication commonly known 
as AP-42; 62 an indication of the quality and amount of data on 
which many of the factors are based is also provided. Other information 
concerning emissions is available in EPA publications relating to 
specific source categories. The Regional Office should be consulted to 
determine appropriate source definitions and for guidance concerning the 
determination of emissions from and techniques for modeling the various 
source types.

                         9.1.2  Recommendations

    For point source applications the load or operating condition that 
causes maximum ground-level concentrations should be established. As a 
minimum, the source should be modeled using the design capacity (100 
percent load). If a source operates at greater than design capacity for 
periods that could result in violations of the standards or PSD 
increments, this load e should be modeled. Where the source 
operates at substantially less than design capacity, and the changes in 
the stack parameters associated with the operating conditions could lead 
to higher ground level concentrations, loads such as 50 percent and 75 
percent of capacity should also be modeled. A range of operating 
conditions should be considered in screening analyses; the load causing 
the highest concentration, in addition to the design load, should be 
included in refined modeling. The following example for a power plant is 
typical of the kind of data on source characteristics and operating 
conditions that may be needed. Generally, input data requirements for 
air quality models necessitate the use of metric units; where English 
units are common for engineering usage, a conversion to metric is 
required.
---------------------------------------------------------------------------

    \e\ Malfunctions which may result in excess emissions are not 
considered to be a normal operating condition. They generally should not 
be considered in determining allowable emissions. However, if the excess 
emissions are the result of poor maintenance, careless operation, or 
other preventable conditions, it may be necessary to consider them in 
determining source impact.
---------------------------------------------------------------------------

    a. Plant layout. The connection scheme between boilers and stacks, 
and the distance and direction between stacks, building parameters 
(length, width, height, location and orientation relative to stacks) for 
plant structures which house boilers, control equipment, and surrounding 
buildings within a distance of approximately five stack heights.
    b. Stack parameters. For all stacks, the stack height and inside 
diameter (meters), and the temperature (K) and volume flow rate (actual 
cubic meters per second) or exit gas velocity (meters per second) for 
operation at 100 percent, 75 percent and 50 percent load.
    c. Boiler size. For all boilers, the associated megawatts, 10 6 
BTU/hr, and pounds of steam per hour, and the design and/or actual fuel 
consumption rate for 100 percent load for coal (tons/hour), oil 
(barrels/hour), and natural gas (thousand cubic feet/hour).
    d. Boiler parameters. For all boilers, the percent excess air used, 
the boiler type (e.g., wet bottom, cyclone, etc.), and the type of 
firing (e.g., pulverized coal, front firing, etc.).
    e. Operating conditions. For all boilers, the type, amount and 
pollutant contents of fuel, the total hours of boiler operation and the 
boiler capacity factor during the year, and the percent load for peak 
conditions.
    f. Pollution control equipment parameters. For each boiler served 
and each pollutant affected, the type of emission control equipment, the 
year of its installation, its design efficiency and mass emission rate, 
the data of the last test and the tested efficiency, the number of hours 
of operation during the latest year, and the best engineering estimate 
of its projected efficiency if used in conjunction with coal combustion; 
data for any anticipated modifications or additions.
    g. Data for new boilers or stacks. For all new boilers and stacks 
under construction and for all planned modifications to existing boilers 
or stacks, the scheduled date of completion, and the data or best 
estimates available for items (a) through (f) above following completion 
of construction or modification.
    In stationary point source applications for compliance with short 
term ambient standards, SIP control strategies should be tested using 
the emission input shown on Table 9-1. When using a refined model, 
sources should be modeled sequentially with these loads for every hour 
of the year. To evaluate

[[Page 976]]

SIPs for compliance with quarterly and annual standards, emission input 
data shown in Table 9-1 should again be used. Emissions from area 
sources should generally be based on annual average conditions. The 
source input information in each model user's guide should be carefully 
consulted and the checklist in Appendix C should also be consulted for 
other possible emission data that could be helpful. PSD NAAQS compliance 
demonstrations should follow the emission input data shown in Table 9-2. 
For purposes of emissions trading, new source review and demonstrations, 
refer to current EPA policy and guidance to establish input data.
    Line source modeling of streets and highways requires data on the 
width of the roadway and the median strip, the types and amounts of 
pollutant emissions, the number of lanes, the emissions from each lane 
and the height of emissions. The location of the ends of the straight 
roadway segments should be specified by appropriate grid coordinates. 
Detailed information and data requirements for modeling mobile sources 
of pollution are provided in the user's manuals for each of the models 
applicable to mobile sources.
    The impact of growth on emissions should be considered in all 
modeling analyses covering existing sources. Increases in emissions due 
to planned expansion or planned fuel switches should be identified. 
Increases in emissions at individual sources that may be associated with 
a general industrial/commercial/residential expansion in multi-source 
urban areas should also be treated. For new sources the impact of growth 
on emissions should generally be considered for the period prior to the 
start-up date for the source. Such changes in emissions should treat 
increased area source emissions, changes in existing point source 
emissions which were not subject to preconstruction review, and 
emissions due to sources with permits to construct that have not yet 
started operation.

                           Table 9-1.--Model Emission Input Data for Point Sources \1\                          
----------------------------------------------------------------------------------------------------------------
                                    Emission limit (#/            Operating level             Operating factor  
         Averaging time                  MMBtu)\2\         x       (MMBtu/hr)\2\       x   (e.g., hr/yr, hr/day)
----------------------------------------------------------------------------------------------------------------
  Stationary Point Source(s) Subject to SIP Emission Limit(s) Evaluation for Compliance with Ambient Standards  
                                      (Including Areawide Demonstrations)                                       
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Annual & quarterly..............  Maximum allowable            Actual or design            Actual operating     
                                   emission limit or            capacity (whichever         factor averaged over
                                   federally enforceable        is greater), or             most recent 2       
                                   permit limit.                federally                   years.\3\           
                                                                enforceable permit                              
                                                                condition.                                      
Short term......................  Maximum allowable            Actual or design            Continuous operation,
                                   emission limit or            capacity (whichever         i.e., all hours of  
                                   federally enforceable        is greater), or             each time period    
                                   permit limit.                federally                   under consideration 
                                                                enforceable permit          (for all hours of   
                                                                condition \4\.              the meteorological  
                                                                                            data base).\5\      
----------------------------------------------------------------------------------------------------------------
                                                                                                                
         Nearby Background Source(s)--Same input requirements as for stationary point source(s) above.          
                                                                                                                
----------------------------------------------------------------------------------------------------------------
                                                                                                                
     Other Background Source(s)--If modeled (see Section 9.2.3), input data requirements are defined below.     
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Annual & quarterly..............  Maximum allowable            Annual level when           Actual operating     
                                   emission limit or            actually operating,         factor averaged over
                                   federally enforceable        averaged over the           the most recent 2   
                                   permit limit.                most recent 2 years         years.\3\           
                                                                \3\.                                            
Short term......................  Maximum allowable            Annual level when           Continuous operation,
                                   emission limit or            actually operating,         i.e., all hours of  
                                   federally enforceable        averaged over the           each time period    
                                   permit limit.                most recent 2 years         under consideration 
                                                                \3\.                        (for all hours of   
                                                                                            the meteorological  
                                                                                            data base).\5\      
----------------------------------------------------------------------------------------------------------------
\1\ The model input data requirements shown on this table apply to stationary source control strategies for     
  STATE IMPLEMENTATION PLANS. For purposes of emissions trading, new source review, or prevention of significant
  deterioration, other model input criteria may apply. Refer to the policy and guidance for these programs to   
  establish the input data.                                                                                     
\2\ Terminology applicable to fuel burning sources; analogous terminology (e.g., #/throughput) may be used for  
  other types of sources.                                                                                       
\3\ Unless it is determined that this period is not representative.                                             
\4\ Operating levels such as 50 percent and 75 percent of capacity should also be modeled to determine the load 
  causing the highest concentration.                                                                            
\5\ If operation does not occur for all hours of the time period of consideration (e.g., 3 or 24 hours) and the 
  source operation is constrained by a federally enforceable permit condition, an appropriate adjustment to the 
  modeled emission rate may be made (e.g., if operation is only 8 a.m. to 4 p.m. each day, only these hours will
  be modeled with emissions from the source. Modeled emissions should not be averaged across non-operating time 
  periods.)                                                                                                     



[[Page 977]]


          Table 9-2.--Point Source Model Input Data (Emissions) for PSD NAAQS Compliance Demonstrations         
----------------------------------------------------------------------------------------------------------------
                                    Emission limit (#/            Operating level             Operating factor  
         Averaging time                 MMBtu) \1\         x        (MMBtu) \1\        x   (e.g., hr/yr, hr/day)
----------------------------------------------------------------------------------------------------------------
                                      Proposed Major New or Modified Source                                     
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Annual & quarterly..............  Maximum allowable            Design capacity or          Continuous operation 
                                   emission limit or            federally                   (i.e., 8760         
                                   federally enforceable        enforceable permit          hours).\2\          
                                   permit limit.                condition.                                      
Short term ( 24        Maximum allowable            Design capacity or          Continuous operation 
 hours).                           emission limit or            federally                   (i.e., all hours of 
                                   federally enforceable        enforceable permit          each time period    
                                   permit limit.                condition \3\.              under consideration)
                                                                                            (for all hours of   
                                                                                            the meteorological  
                                                                                            data base).\2\      
----------------------------------------------------------------------------------------------------------------
                                                                                                                
Nearby Background Source(s) \4\                                                                                 
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Annual & quarterly..............  Maximum allowable            Actual or design            Actual operating     
                                   emission limit or            capacity (whichever         factor averaged over
                                   federally enforceable        is greater), or             the most recent 2   
                                   permit limit.                federally                   years.\5\ \7\       
                                                                enforceable permit                              
                                                                condition.                                      
Short term ( 24        Maximum allowable            Actual or design            Continuous operation 
 hours).                           emission limit or            capacity (whichever         (i.e., all hours of 
                                   federally enforceable        is greater), or             each time period    
                                   permit limit.                federally                   under consideration)
                                                                enforceable permit          (for all hours of   
                                                                condition \3\.              the meteorological  
                                                                                            data base).\2\      
----------------------------------------------------------------------------------------------------------------
                                                                                                                
 Other Background Source(s)\6\                                                                                  
                                                                                                                
----------------------------------------------------------------------------------------------------------------
Annual & quarterly..............  Maximum allowable            Annual level when           Actual operating     
                                   emission limit or            actually operating,         factor averaged over
                                   federally enforceable        averaged over the           the most recent 2   
                                   permit limit.                most recent 2 years         years.\5\ \7\       
                                                                \5\.                                            
Short term ( 24        Maximum allowable            Annual level when           Continuous operation 
 hours).                           emission limit or            actually operating,         (i.e., all hours of 
                                   federally enforceable        averaged over the           each time period    
                                   permit limit.                most recent 2 years         under consideration)
                                                                \5\.                        (for all hours of   
                                                                                            the meteorological  
                                                                                            data base).\2\      
----------------------------------------------------------------------------------------------------------------
\1\ Terminology applicable to fuel burning sources; analogous terminology (e.g., #/throughput) may be used for  
  other types of sources.                                                                                       
\2\ If operation does not occur for all hours of the time period of consideration (e.g., 3 or 24 hours) and the 
  source operation is constrained by a federally enforceable permit condition, an appropriate adjustment to the 
  modeled emission rate may be made (e.g., if operation is only 8:00 a.m. to 4:00 p.m. each day, only these     
  hours will be modeled with emissions from the source. Modeled emissions should not be averaged across non-    
  operating time periods.                                                                                       
\3\ Operating levels such as 50 percent and 75 percent of capacity should also be modeled to determine the load 
  causing the highest concentration.                                                                            
\4\ Includes existing facility to which modification is proposed if the emissions from the existing facility    
  will not be affected by the modification. Otherwise use the same parameters as for major modification.        
\5\ Unless it is determined that this period is not representative.                                             
\6\ Generally, the ambient impacts from non-nearby background sources can be represented by air quality data    
  unless adequate data do not exist.                                                                            
\7\ For those permitted sources not yet in operation or that have not established an appropriate factor,        
  continuous operation (i.e., 8760 hours) should be used.                                                       


                     9.2  Background Concentrations

                            9.2.1  Discussion

    Background concentrations are an essential part of the total air 
quality concentration to be considered in determining source impacts. 
Background air quality includes pollutant concentrations due to: (1) 
Natural sources; (2) nearby sources other than the one(s) currently 
under consideration; and (3) unidentified sources.
    Typically, air quality data should be used to establish background 
concentrations in the vicinity of the source(s) under consideration. The 
monitoring network used for background determinations should conform to 
the same quality assurance and other requirements as those networks 
established for PSD purposes.\63\ An appropriate data validation 
procedure should be applied to the data prior to use.
    If the source is not isolated, it may be necessary to use a multi-
source model to establish the impact of nearby sources. Background 
concentrations should be determined for each critical (concentration) 
averaging time.

[[Page 978]]

             9.2.2  Recommendations (Isolated Single Source)

    Two options are available to determine the background concentration 
near isolated sources.
    Option One: Use air quality data collected in the vicinity of the 
source to determine the background concentration for the averaging times 
of concern.f Determine the mean background concentration at each 
monitor by excluding values when the source in question is impacting the 
monitor. The mean annual background is the average of the annual 
concentrations so determined at each monitor. For shorter averaging 
periods, the meteorological conditions accompanying the concentrations 
of concern should be identified. Concentrations for meteorological 
conditions of concern, at monitors not impacted by the source in 
question, should be averaged for each separate averaging time to 
determine the average background value. Monitoring sites inside a 
90 deg. sector downwind of the source may be used to determine the area 
of impact. One hour concentrations may be added and averaged to 
determine longer averaging periods.
---------------------------------------------------------------------------

    \f\ For purposes of PSD, the location of monitors as well as data 
quality assurance procedures must satisfy requirements listed in the PSD 
Monitoring Guidelines.\63\
---------------------------------------------------------------------------

    Option Two: If there are no monitors located in the vicinity of the 
source, a ``regional site'' may be used to determine background. A 
``regional site'' is one that is located away from the area of interest 
but is impacted by similar natural and distant man-made sources.

               9.2.3  Recommendations (Multi-Source Areas)

    In multi-source areas two components of background should be 
determined.
    Nearby Sources: All sources expected to cause a significant 
concentration gradient in the vicinity of the source or sources under 
consideration for emission limit(s) should be explicitly modeled. For 
evaluation for compliance with the short term and annual ambient 
standards, the nearby sources should be modeled using the emission input 
data shown in Table 9-1 or 9-2. The number of such sources is expected 
to be small except in unusual situations. The nearby source inventory 
should be determined in consultation with the reviewing authority. It is 
envisioned that the nearby sources and the sources under consideration 
will be evaluated together using an appropriate Appendix A model.
    The impact of the nearby sources should be examined at locations 
where interactions between the plume of the point source under 
consideration and those of nearby sources (plus natural background) can 
occur. Significant locations include: (1) The area of maximum impact of 
the point source; (2) the area of maximum impact of nearby sources; and 
(3) the area where all sources combine to cause maximum impact. These 
locations may be identified through trial and error analyses.
    Other Sources: That portion of the background attributable to all 
other sources (e.g., natural sources, minor sources and distant major 
sources) should be determined by the procedures found in section 9.2.2 
or by application of a model using Table 9-1 or 9-2.

                     9.3  Meteorological Input Data

    The meteorological data used as input to a dispersion model should 
be selected on the basis of spatial and climatological (temporal) 
representativeness as well as the ability of the individual parameters 
selected to characterize the transport and dispersion conditions in the 
area of concern. The representativeness of the data is dependent on: (1) 
The proximity of the meteorological monitoring site to the area under 
consideration; (2) the complexity of the terrain; (3) the exposure of 
the meteorological monitoring site; and (4) the period of time during 
which data are collected. The spatial representativeness of the data can 
be adversely affected by large distances between the source and 
receptors of interest and the complex topographic characteristics of the 
area. Temporal representativeness is a function of the year-to-year 
variations in weather conditions.
    Model input data are normally obtained either from the National 
Weather Service or as part of an on-site measurement program. Local 
universities, FAA, military stations, industry and pollution control 
agencies may also be sources of such data. Some recommendations for the 
use of each type of data are included in this subsection.

             9.3.1  Length of Record of Meteorological Data

    9.3.1.1  Discussion. The model user should acquire enough 
meteorological data to ensure that worst-case meteorological conditions 
are adequately represented in the model results. The trend toward 
statistically based standards suggests a need for all meteorological 
conditions to be adequately represented in the data set selected for 
model input. The number of years of record needed to obtain a stable 
distribution of conditions depends on the variable being measured and 
has been estimated by Landsberg and Jacobs \64\ for various parameters. 
Although that study indicates in excess of 10 years may be required to 
achieve stability in the frequency distributions of some meteorological 
variables, such long periods are not reasonable for model input data. 
This is due in part to the fact that hourly data in model input

[[Page 979]]

format are frequently not available for such periods and that hourly 
calculations of concentration for long periods are prohibitively 
expensive. A recent study \65\ compared various periods from a 17-year 
data set to determine the minimum number of years of data needed to 
approximate the concentrations modeled with a 17-year period of 
meteorological data from one station. This study indicated that the 
variability of model estimates due to the meteorological data input was 
adequately reduced if a 5-year period of record of meteorological input 
was used.
    9.3.1.2  Recommendations. Five years of representative 
meteorological data should be used when estimating concentrations with 
an air quality model. Consecutive years from the most recent, readily 
available 5-year period are preferred. The meteorological data may be 
data collected either onsite or at the nearest National Weather Service 
(NWS) station. If the source is large, e.g., a 500 MW power plant, the 
use of 5 years of NWS meteorological data or at least 1 year of site-
specific data is required.
    If one year or more, up to five years, of sitespecific data is 
available, these data are preferred for use in air quality analyses. 
Such data should have been subjected to quality assurance procedures as 
described in Section 9.3.3.2.
    For permitted sources whose emission limitations are based on a 
specific year of meteorological data that year should be added to any 
longer period being used (e.g., 5 years of NWS data) when modeling the 
facility at a later time.

                  9.3.2  National Weather Service Data

    9.3.2.1  Discussion. The National Weather Service (NWS) 
meteorological data are routinely available and familiar to most model 
users. Although the NWS does not provide direct measurements of all the 
needed dispersion model input variables, methods have been developed and 
successfully used to translate the basic NWS data to the needed model 
input. Direct measurements of model input parameters have been made for 
limited model studies and those methods and techniques are becoming more 
widely applied; however, most model applications still rely heavily on 
the NWS data.
    There are two standard formats of the NWS data for use in air 
quality models. The short term models use the standard hourly weather 
observations available from the National Climatic Data Center (NCDC). 
These observations are then ``preprocessed'' before they can be used in 
the models. ``STAR'' summaries are available from NCDC for long term 
model use. These are joint frequency distributions of wind speed, 
direction and P-G stability category. They are used as direct input to 
models such as the long term version of ISC.\58\
    9.3.2.2  Recommendations. The preferred short term models listed in 
appendix A all accept as input the NWS meteorological data preprocessed 
into model compatible form. Long-term (monthly seasonal or annual) 
preferred models use NWS ``STAR'' summaries. Summarized concentration 
estimates from the short term models may also be used to develop long-
term averages; however, concentration estimates based on the two 
separate input data sets may not necessarily agree.
    Although most NWS measurements are made at a standard height of 10 
meters, the actual anemometer height should be used as input to the 
preferred model.
    National Weather Service wind directions are reported to the nearest 
10 degrees. A specific set of randomly generated numbers has been 
developed for use with the preferred EPA models and should be used to 
ensure a lack of bias in wind direction assignments within the models.
    Data from universities, FAA, military stations, industry and 
pollution control agencies may be used if such data are equivalent in 
accuracy and detail to the NWS data.

                        9.3.3  Site-Specific Data

    9.3.3.1  Discussion. Spatial or geographical representativeness is 
best achieved by collection of all of the needed model input data at the 
actual site of the source(s). Site-specific measured data are therefore 
preferred as model input, provided appropriate instrumentation and 
quality assurance procedures are followed and that the data collected 
are representative (free from undue local or ``micro'' influences) and 
compatible with the input requirements of the model to be used. However, 
direct measurements of all the needed model input parameters may not be 
possible. This section discusses suggestions for the collection and use 
of on-site data. Since the methods outlined in this section are still 
being tested, comparison of the model parameters derived using these 
site-specific data should be compared at least on a spot-check basis, 
with parameters derived from more conventional observations.
    9.3.3.2  Recommendations.
    a. Site-specific Data Collection. The document ``On-Site 
Meteorological Program Guidance for Regulatory Modeling Applications'' 
\66\ provides recommendations on the collection and use of on-site 
meteorological data. Recommendations on characteristics, siting, and 
exposure of meteorological instruments and on data recording, 
processing, completeness requirements, reporting, and archiving are also 
included. This publication should be used as a supplement to the limited 
guidance on these subjects now found in the ``Ambient Monitoring 
Guidelines for Prevention of Significant Deterioration''.\63\ Detailed 
information on quality assurance is

[[Page 980]]

provided in the ``Quality Assurance Handbook for Air Pollution 
Measurement Systems: Volume IV''.\67\ As a minimum, site-specific 
measurements of ambient air temperature, transport wind speed and 
direction, and the parameters to determine Pasquill-Gifford (P-G) 
stability categories should be available in meteorological data sets to 
be used in modeling. Care should be taken to ensure that meteorological 
instruments are located to provide representative characterization of 
pollutant transport between sources and receptors of interest. The 
Regional Office will determine the appropriateness of the measurement 
locations.
    b. All site-specific data should be reduced to hourly averages. 
Table 9-3 lists the wind related parameters and the averaging time 
requirements.
    c. Solar Radiation Measurements. Total solar radiation should be 
measured with a reliable pyranometer, sited and operated in accordance 
with established on-site meteorological guidance.\66\
    d. Temperature Measurements. Temperature measurements should be made 
at standard shelter height (2m) in accordance with established on-site 
meteorological guidance.\66\
    e. Temperature Difference Measurements. Temperature difference 
(T) measurements for use in estimating P-G stability categories 
using the SRDT methodology (see Stability Categories) should be obtained 
using two matched thermometers or a reliable thermocouple system to 
achieve adequate accuracy.
    f. Siting, probe placement, and operation of T systems 
should be based on guidance found in Chapter 3 of reference 66, and such 
guidance should be followed when obtaining vertical temperature gradient 
data for use in plume rise estimates or in determining the critical 
dividing streamline height.
    g. Wind Measurements. For refined modeling applications in simple 
terrain situations, if a source has a stack below 100m, select the stack 
top height as the wind measurement height for characterization of plume 
dilution and transport. For sources with stacks extending above 100m, a 
100m tower is suggested unless the stack top is significantly above 100m 
(i.e., 200m). In cases with stack tops 200m, 
remote sensing may be a feasible alternative. In some cases, collection 
of stack top wind speed may be impractical or incompatible with the 
input requirements of the model to be used. In such cases, the Regional 
Office should be consulted to determine the appropriate measurement 
height.
    h. For refined modeling applications in complex terrain, multiple 
level (typically three or more) measurements of wind speed and 
direction, temperature and turbulence (wind fluctuation statistics) are 
required. Such measurements should be obtained up to the representative 
plume height(s) of interest (i.e., the plume height(s) under those 
conditions important to the determination of the design concentration). 
The representative plume height(s) of interest should be determined 
using an appropriate complex terrain screening procedure (e.g., 
CTSCREEN) and should be documented in the monitoring/modeling protocol. 
The necessary meteorological measurements should be obtained from an 
appropriately sited meteorological tower augmented by SODAR if the 
representative plume height(s) of interest exceed 100m. The 
meteorological tower need not exceed the lesser of the representative 
plume height of interest (the highest plume height if there is more than 
one plume height of interest) or 100m.
    i. In general, the wind speed used in determining plume height is 
defined as the wind speed at stack top.
    j. Specifications for wind measuring instruments and systems are 
contained in the ``On-Site Meteorological Program Guidance for 
Regulatory Modeling Applications''.\66\
    k. Stability Categories. The P-G stability categories, as originally 
defined, couple near-surface measurements of wind speed with 
subjectively determined insolation assessments based on hourly cloud 
cover and ceiling height observations. The wind speed measurements are 
made at or near 10m. The insolation rate is typically assessed using 
observations of cloud cover and ceiling height based on criteria 
outlined by Turner.\50\ It is recommended that the P-G stability 
category be estimated using the Turner method with site-specific wind 
speed measured at or near 10m and representative cloud cover and ceiling 
height. Implementation of the Turner method, as well as considerations 
in determining representativeness of cloud cover and ceiling height in 
cases for which site-specific cloud observations are unavailable, may be 
found in section 6 of reference 66. In the absence of requisite data to 
implement the Turner method, the SRDT method or wind fluctuation 
statistics (i.e., the E and A methods) may 
be used.
    l. The SRDT method, described in section 6.4.4.2 of reference 66, is 
modified slightly from that published by Bowen et al. (1983) \136\ and 
has been evaluated with three on-site data bases.\137\ The two methods 
of stability classification which use wind fluctuation statistics, the 
E and A methods, are also described in 
detail in section 6.4.4 of reference 66 (note applicable tables in 
section 6). For additional information on the wind fluctuation methods, 
see references 68-72.
    m. Hours in the record having missing data should be treated 
according to an established data substitution protocol and after valid 
data retrieval requirements have been met. Such protocols are usually 
part of the approved monitoring program plan. Data substitution guidance 
is provided in section 5.3 of reference 66.

[[Page 981]]

    n. Meteorological Data Processors. The following meteorological 
preprocessors are recommended by EPA: RAMMET, PCRAMMET, STAR, PCSTAR, 
MPRM,\135\ and METPRO.\24\ RAMMET is the recommended meteorological 
preprocessor for use in applications employing hourly NWS data. The 
RAMMET format is the standard data input format used in sequential 
Gaussian models recommended by EPA. PCRAMMET \138\ is the PC equivalent 
of the mainframe version (RAMMET). STAR is the recommended preprocessor 
for use in applications employing joint frequency distributions (wind 
direction and wind speed by stability class) based on NWS data. PCSTAR 
is the PC equivalent of the mainframe version (STAR). MPRM is the 
recommended preprocessor for use in applications employing on-site 
meteorological data. The latest version (MPRM 1.3) has been configured 
to implement the SRDT method for estimating P-G stability categories. 
MPRM is a general purpose meteorological data preprocessor which 
supports regulatory models requiring RAMMET formatted data and STAR 
formatted data. In addition to on-site data, MPRM provides equivalent 
processing of NWS data. METPRO is the required meteorological data 
preprocessor for use with CTDMPLUS. All of the above mentioned data 
preprocessors are available for downloading from the SCRAM BBS.\19\

    Table 9-3.--Averaging Times for Site-Specific Wind and Turbulence   
                              Measurements                              
------------------------------------------------------------------------
                 Parameter                          Averaging time      
------------------------------------------------------------------------
Surface wind speed (for use in stability     1-hr.                      
 determinations).                                                       
Transport direction........................  1-hr.                      
Dilution wind speed........................  1-hr.                      
Turbulence measurements (E and      1-hr. \1\                  
 A) for use in stability                                       
 determinations.                                                        
------------------------------------------------------------------------
\1\ To minimize meander effects in A when wind conditions are  
  light and/or variable, determine the hourly average  value   
  from four sequential 15-minute 's according to the following 
  formula:                                                              

  
  
                        9.3.4  Treatment of Calms

    9.3.4.1  Discussion. Treatment of calm or light and variable wind 
poses a special problem in model applications since Gaussian models 
assume that concentration is inversely proportional to wind speed. 
Furthermore, concentrations become unrealistically large when wind 
speeds less than 1 m/s are input to the model. A procedure has been 
developed for use with NWS data to prevent the occurrence of overly 
conservative concentration estimates during periods of calms. This 
procedure acknowledges that a Gaussian plume model does not apply during 
calm conditions and that our knowledge of plume behavior and wind 
patterns during these conditions does not, at present, permit the 
development of a better technique. Therefore, the procedure disregards 
hours which are identified as calm. The hour is treated as missing and a 
convention for handling missing hours is recommended.
    Preprocessed meteorological data input to most appendix A EPA models 
substitute a 1.00 m/s wind speed and the previous direction for the calm 
hour. The new treatment of calms in those models attempts to identify 
the original calm cases by checking for a 1.00 m/s wind speed coincident 
with a wind direction equal to the previous hour's wind direction. Such 
cases are then treated in a prescribed manner when estimating short term 
concentrations.
    9.3.4.2  Recommendations. Hourly concentrations calculated with 
Gaussian models using calms should not be considered valid; the wind and 
concentration estimates for these hours should be disregarded and 
considered to be missing. Critical concentrations for 3-, 8-, and 24-
hour averages should be calculated by dividing the sum of the hourly 
concentration for the period by the number of valid or nonmissing hours. 
If the total number of valid hours is less than 18 for 24-hour averages, 
less than 6 for 8-hour averages or less than 3 for 3-hour averages, the 
total concentration should be divided by 18 for the 24-hour average, 6 
for the 8-hour average and 3 for the 3-hour average. For annual 
averages, the sum of all valid hourly concentrations is divided by the 
number of non-calm hours during the year. A post-processor computer 
program, CALMPRO \73\ has been prepared following these instructions and 
has been hardwired in the following models: RAM, ISC, MPTER and CRSTER.
    The recommendations above apply to the use of calms for short term 
averages and do not apply to the determination of long term averages 
using ``STAR'' data summaries. Calms should continue to be included in 
the preparation of ``STAR'' summaries. A treatment for calms and very 
light winds is built into the software that produces the ``STAR'' 
summaries.

[[Page 982]]

    Stagnant conditions, including extended periods of calms, often 
produce high concentrations over wide areas for relatively long 
averaging periods. The standard short term Gaussian models are often not 
applicable to such situations. When stagnation conditions are of 
concern, other modeling techniques should be considered on a case-by-
case basis. (See also section 8.2.10)
    When used in Gaussian models, measured on-site wind speeds of less 
than 1 m/s but higher than the response threshold of the instrument 
should be input as 1m/s; the corresponding wind direction should also be 
input. Observations below the response threshold of the instrument are 
also set to 1 m/s but the wind direction from the previous hour is used. 
If the wind speed or direction can not be determined, that hour should 
be treated as missing and short term averages should then be calculated 
as above.

                10.0  Accuracy and Uncertainty of Models

                            10.1  Discussion

    Increasing reliance has been placed on concentration estimates from 
models as the primary basis for regulatory decisions concerning source 
permits and emission control requirements. In many situations, such as 
review of a proposed source, no practical alternative exists. Therefore, 
there is an obvious need to know how accurate models really are and how 
any uncertainty in the estimates affects regulatory decisions. EPA 
recognizes the need for incorporating such information and has sponsored 
workshops 11,74 on model accuracy, the possible ways to quantify 
accuracy, and on considerations in the incorporation of model accuracy 
and uncertainty in the regulatory process. The Second (EPA) Conference 
on Air Quality Modeling, August 1982,\75\ was devoted to that subject.

                  10.1.1  Overview of Model Uncertainty

    Dispersion models generally attempt to estimate concentrations at 
specific sites that really represent an ensemble average of numerous 
repetitions of the same event. The event is characterized by measured or 
``known'' conditions that are input to the models, e.g., wind speed, 
mixed layer height, surface heat flux, emission characteristics, etc. 
However, in addition to the known conditions, there are unmeasured or 
unknown variations in the conditions of this event, e.g., unresolved 
details of the atmospheric flow such as the turbulent velocity field. 
These unknown conditions, may vary among repetitions of the event. As a 
result, deviations in observed concentrations from their ensemble 
average, and from the concentrations estimated by the model, are likely 
to occur even though the known conditions are fixed. Even with a perfect 
model that predicts the correct ensemble average, there are likely to be 
deviations from the observed concentrations in individual repetitions of 
the event, due to variations in the unknown conditions. The statistics 
of these concentration residuals are termed ``inherent'' uncertainty. 
Available evidence suggests that this source of uncertainty alone may be 
responsible for a typical range of variation in concentrations of as 
much as 50 percent.\76\
    Moreover, there is ``reducible'' uncertainty \77\ associated with 
the model and its input conditions; neither models nor data bases are 
perfect. Reducible uncertainties are caused by: (1) Uncertainties in the 
input values of the known conditions--emission characteristics and 
meteorological data; (2) errors in the measured concentrations which are 
used to compute the concentration residuals; and (3) inadequate model 
physics and formulation. The ``reducible'' uncertainties can be 
minimized through better (more accurate and more representative) 
measurements and better model physics.
    To use the terminology correctly, reference to model accuracy should 
be limited to that portion of reducible uncertainty which deals with the 
physics and the formulation of the model. The accuracy of the model is 
normally determined by an evaluation procedure which involves the 
comparison of model concentration estimates with measured air quality 
data.\78\ The statement of accuracy is based on statistical tests or 
performance measures such as bias, noise, correlation, etc.\11\ However, 
information that allows a distinction between contributions of the 
various elements of inherent and reducible uncertainty is only now 
beginning to emerge. As a result most discussions of the accuracy of 
models make no quantitative distinction between (1) limitations of the 
model versus (2) limitations of the data base and of knowledge 
concerning atmospheric variability. The reader should be aware that 
statements on model accuracy and uncertainty may imply the need for 
improvements in model performance that even the ``perfect'' model could 
not satisfy.

                    10.1.2  Studies of Model Accuracy

    A number of studies 79,80 have been conducted to examine model 
accuracy, particularly with respect to the reliability of short-term 
concentrations required for ambient standard and increment evaluations. 
The results of these studies are not surprising. Basically, they confirm 
what leading atmospheric scientists have said for some time: (1) Models 
are more reliable for estimating longer time-averaged concentrations 
than for estimating short-term concentrations at specific locations; and 
(2) the models are reasonably reliable in estimating the magnitude

[[Page 983]]

of highest concentrations occurring sometime, somewhere within an area. 
For example, errors in highest estimated concentrations of  
10 to 40 percent are found to be typical,\81\ i.e., certainly well 
within the often quoted factor-of-two accuracy that has long been 
recognized for these models. However, estimates of concentrations that 
occur at a specific time and site, are poorly correlated with actually 
observed concentrations and are much less reliable.
    As noted above, poor correlations between paired concentrations at 
fixed stations may be due to ``reducible'' uncertainties in knowledge of 
the precise plume location and to unquantified inherent uncertainties. 
For example, Pasquill\82\ estimates that, apart from data input errors, 
maximum ground-level concentrations at a given hour for a point source 
in flat terrain could be in error by 50 percent due to these 
uncertainties. Uncertainty of five to 10 degrees in the measured wind 
direction, which transports the plume, can result in concentration 
errors of 20 to 70 percent for a particular time and location, depending 
on stability and station location. Such uncertainties do not indicate 
that an estimated concentration does not occur, only that the precise 
time and locations are in doubt.

              10.1.3  Use of Uncertainty in Decision-Making

    The accuracy of model estimates varies with the model used, the type 
of application, and site-specific characteristics. Thus, it is desirable 
to quantify the accuracy or uncertainty associated with concentration 
estimates used in decision-making. Communications between modelers and 
decision-makers must be fostered and further developed. Communications 
concerning concentration estimates currently exist in most cases, but 
the communications dealing with the accuracy of models and its meaning 
to the decision-maker are limited by the lack of a technical basis for 
quantifying and directly including uncertainty in decisions. Procedures 
for quantifying and interpreting uncertainty in the practical 
application of such concepts are only beginning to evolve; much study is 
still required.74,75,77
    In all applications of models an effort is encouraged to identify 
the reliability of the model estimates for that particular area and to 
determine the magnitude and sources of error associated with the use of 
the model. The analyst is responsible for recognizing and quantifying 
limitations in the accuracy, precision and sensitivity of the procedure. 
Information that might be useful to the decision-maker in recognizing 
the seriousness of potential air quality violations includes such model 
accuracy estimates as accuracy of peak predictions, bias, noise, 
correlation, frequency distribution, spatial extent of high 
concentration, etc. Both space/time pairing of estimates and 
measurements and unpaired comparisons are recommended. Emphasis should 
be on the highest concentrations and the averaging times of the 
standards or increments of concern. Where possible, confidence intervals 
about the statistical values should be provided. However, while such 
information can be provided by the modeler to the decision-maker, it is 
unclear how this information should be used to make an air pollution 
control decision. Given a range of possible outcomes, it is easiest and 
tends to ensure consistency if the decision-maker confines his judgment 
to use of the ``best estimate'' provided by the modeler (i.e., the 
design concentration estimated by a model recommended in this guideline 
or an alternate model of known accuracy). This is an indication of the 
practical limitations imposed by current abilities of the technical 
community.
    To improve the basis for decision-making, EPA has developed and is 
continuing to study procedures for determining the accuracy of models, 
quantifying the uncertainty, and expressing confidence levels in 
decisions that are made concerning emissions controls. 83,84 
However, work in this area involves ``breaking new ground'' with slow 
and sporadic progress likely. As a result, it may be necessary to 
continue using the ``best estimate'' until sufficient technical progress 
has been made to meaningfully implement such concepts dealing with 
uncertainty.

                      10.1.4  Evaluation of Models

    A number of actions are being taken to ensure that the best model is 
used correctly for each regulatory application and that a model is not 
arbitrarily imposed. First, this guideline clearly recommends the most 
appropriate model be used in each case. Preferred models, based on a 
number of factors, are identified for many uses. General guidance on 
using alternatives to the preferred models is also provided. Second, all 
the models in eight categories (i.e., rural, urban, industrial complex, 
reactive pollutants, mobile source, complex terrain, visibility and long 
range transport) that are candidates for inclusion in this guideline are 
being subjected to a systematic performance evaluation and a peer 
scientific review. \85\ The same data bases are being used to evaluate 
all models within each of eight categories. Statistical performance 
measures, including measures of difference (or residuals) such as bias, 
variance of difference and gross variability of the difference, and 
measures of correlation such as time, space, and time and space combined 
as recommended by the AMS Woods Hole Workshop, \11\ are being followed. 
The results of the scientific review are being incorporated in this 
guideline and will be the basis for future

[[Page 984]]

revision.12, 13 Third, more specific information has been provided 
for justifying the site specific use of alternative models in the 
documents ``Interim Procedures for Evaluating Air Quality Models'', \15\ 
and the ``Protocol for Determining the Best Performing Model''. \17\ 
Together these documents provide methods that allow a judgment to be 
made as to what models are most appropriate for a specific application. 
For the present, performance and the theoretical evaluation of models 
are being used as an indirect means to quantify one element of 
uncertainty in air pollution regulatory decisions.
    In addition to performance evaluation of models, sensitivity 
analyses are encouraged since they can provide additional information on 
the effect of inaccuracies in the data bases and on the uncertainty in 
model estimates. Sensitivity analyses can aid in determining the effect 
of inaccuracies of variations or uncertainties in the data bases on the 
range of likely concentrations. Such information may be used to 
determine source impact and to evaluate control strategies. Where 
possible, information from such sensitivity analyses should be made 
available to the decision-maker with an appropriate interpretation of 
the effect on the critical concentrations.

                          10.2  Recommendations

    No specific guidance on the consideration of model uncertainty in 
decision-making is being given at this time. There is incomplete 
technical information on measures of model uncertainty that are most 
relevant to the decision-maker. It is not clear how a decisionmaker 
could use such information, particularly given limitations of the Clean 
Air Act. As procedures for considering uncertainty develop and become 
implementable, this guidance will be changed and expanded. For the 
present, continued use of the ``best estimate'' is acceptable and is 
consistent with CAA requirements.

                 11.0  Regulatory Application of Models

                            11.1  Discussion

    Procedures with respect to the review and analysis of air quality 
modeling and data analyses in support of SIP revisions, PSD permitting 
or other regulatory requirements need a certain amount of 
standardization to ensure consistency in the depth and comprehensiveness 
of both the review and the analysis itself. This section recommends 
procedures that permit some degree of standardization while at the same 
time allowing the flexibility needed to assure the technically best 
analysis for each regulatory application.
    Dispersion model estimates, especially with the support of measured 
air quality data, are the preferred basis for air quality 
demonstrations. Nevertheless, there are instances where the performance 
of recommended dispersion modeling techniques, by comparison with 
observed air quality data, may be shown to be less than acceptable. 
Also, there may be no recommended modeling procedure suitable for the 
situation. In these instances, emission limitations may be established 
solely on the basis of observed air quality data as would be applied to 
a modeling analysis. The same care should be given to the analyses of 
the air quality data as would be applied to a modeling analysis.
    The current NAAQS for SO2 and CO are both stated in terms of a 
concentration not to be exceeded more than once a year. There is only an 
annual standard for NO2 and a quarterly standard for Pb. The PM-10 
and ozone standards permit the exceedance of a concentration on an 
average of not mornvention is to average over a 3-year period.5, 
86, 103 This represents a change from a deterministic to a more 
statistical form of the standard and permits some consideration to be 
given to unusual circumstances. The NAAQS are subjected to extensive 
review and possible revision every 5 years.
    This section discusses general requirements for concentration 
estimates and identifies the relationship to emission limits. The 
following recommendations apply to: (1) Revisions of State 
Implementation Plans; (2) the review of new sources and the prevention 
of significant deterioration (PSD); and (3) analyses of the emissions 
trades (``bubbles'').

                          11.2  Recommendations

                      11.2.1  Analysis Requirements

    Every effort should be made by the Regional Office to meet with all 
parties involved in either a SIP revision or a PSD permit application 
prior to the start of any work on such a project. During this meeting, a 
protocol should be established between the preparing and reviewing 
parties to define the procedures to be followed, the data to be 
collected, the model to be used, and the analysis of the source and 
concentration data. An example of requirements for such an effort is 
contained in the Air Quality Analysis Checklist included here as 
Appendix C. This checklist suggests the level of detail required to 
assess the air quality resulting from the proposed action. Special cases 
may require additional data collection or analysis and this should be 
determined and agreed upon at this preapplication meeting. The protocol 
should be written and agreed upon by the parties concerned, although a 
formal legal document is not intended. Changes in such a protocol are 
often required as the data collection and analysis progresses. However, 
the protocol establishes a common understanding of the requirements.
    An air quality analysis should begin with a screening model to 
determine the potential

[[Page 985]]

of the proposed source or control strategy to violate the PSD increment 
or NAAQS. It is recommended that the screening techniques found in 
``Screening Procedures for Estimating the Air Quality Impact of 
Stationary Sources'' \18\ be used for point source analyses. Screening 
procedures for area source analysis are discussed in ``Applying 
Atmospheric Simulation Models to Air Quality Maintenance Areas''.\87\ 
For mobile source impact assessments the ``Guideline for Modeling Carbon 
Monoxide from Roadway Intersections'' \34\ is available.
    If the concentration estimates from screening techniques indicate 
that the PSD increment or NAAQS may be approached or exceeded, then a 
more refined modeling analysis is appropriate and the model user should 
select a model according to recommendations in sections 4-8. In some 
instances, no refined technique may be specified in this guide for the 
situation. The model user is then encouraged to submit a model developed 
specifically for the case at hand. If that is not possible, a screening 
technique may supply the needed results.
    Regional Offices should require permit applicants to incorporate the 
pollutant contributions of all sources into their analysis. Where 
necessary this may include emissions associated with growth in the area 
of impact of the new or modified source's impact. PSD air quality 
assessments should consider the amount of the allowable air quality 
increment that has already been granted to any other sources. Therefore, 
the most recent source applicant should model the existing or permitted 
sources in addition to the one currently under consideration. This would 
permit the use of newly acquired data or improved modeling techniques if 
such have become available since the last source was permitted. When 
remodeling, the worst case used in the previous modeling analysis should 
be one set of conditions modeled in the new analysis. All sources should 
be modeled for each set of meteorological conditions selected and for 
all receptor sites used in the previous applications as well as new 
sites specific to the new source.

         11.2.2  Use of Measured Data in Lieu of Model Estimates

    Modeling is the preferred method for determining emission 
limitations for both new and existing sources. When a preferred model is 
available, model results alone (including background) are sufficient. 
Monitoring will normally not be accepted as the sole basis for emission 
limitation determination in flat terrain areas. In some instances when 
the modeling technique available is only a screening technique, the 
addition of air quality data to the analysis may lend credence to model 
results.
    There are circumstances where there is no applicable model, and 
measured data may need to be used. Examples of such situations are: (1) 
Complex terrain locations; (2) land/water interface areas; and (3) urban 
locations with a large fraction of particulate emissions from 
nontraditional sources. However, only in the case of an existing source 
should monitoring data alone be a basis for emission limits. In 
addition, the following items should be considered prior to the 
acceptance of the measured data:
    a. Does a monitoring network exist for the pollutants and averaging 
times of concern;
    b. Has the monitoring network been designed to locate points of 
maximum concentration;
    c. Do the monitoring network and the data reduction and storage 
procedures meet EPA monitoring and quality assurance requirements;
    d. Do the data set and the analysis allow impact of the most 
important individual sources to be identified if more than one source or 
emission point is involved;
    e. Is at least one full year of valid ambient data available; and
    f. Can it be demonstrated through the comparison of monitored data 
with model results that available models are not applicable?
    The number of monitors required is a function of the problem being 
considered. The source configuration, terrain configuration, and 
meteorological variations all have an impact on number and placement of 
monitors. Decisions can only be made on a case-by-case basis. The 
Interim Procedures for Evaluating Air Quality Models \15\ should be used 
in establishing criteria for demonstrating that a model is not 
applicable.
    Sources should obtain approval from the Regional Office or reviewing 
authority for the monitoring network prior to the start of monitoring. A 
monitoring protocol agreed to by all concerned parties is highly 
desirable. The design of the network, the number, type and location of 
the monitors, the sampling period, averaging time as well as the need 
for meteorological monitoring or the use of mobile sampling or plume 
tracking techniques, should all be specified in the protocol and agreed 
upon prior to start-up of the network.

                         11.2.3  Emission Limits

    11.2.3.1  Design Concentrations. Emission limits should be based on 
concentration estimates for the averaging time that results in the most 
stringent control requirements. The concentration used in specifying 
emission limits is called the design value or design concentration and 
is a sum of the concentration contributed by the source and the 
background concentration.
    To determine the averaging time for the design value, the most 
restrictive National Ambient Air Quality Standard (NAAQS) should be 
identified by calculating, for each averaging time, the ratio of the 
applicable

[[Page 986]]

NAAQS (S) minus background (B) to the predicted concentration (P) (i.e., 
(S-B)/P). The averaging time with the lowest ratio identifies the most 
restrictive standard. If the annual average is the most restrictive, the 
highest estimated annual average concentration from one or a number of 
years of data is the design value. When short term standards are most 
restrictive, it may be necessary to consider a broader range of 
concentrations than the highest value. For example, for pollutants such 
as SO2, the highest, second-highest concentration is the design 
value. For pollutants with statistically based NAAQS, the design value 
is found by determining the more restrictive of: (1) The short-term 
concentration that is not expected to be exceeded more than once per 
year over the period specified in the standard, or (2) the long-term 
concentration that is not expected to exceed the long-term NAAQS. 
Determination of design values for PM-10 is presented in more detail in 
the ``PM-10 SIP Development Guideline''.\103\
    When the highest, second-highest concentration is used in assessing 
potential violations of a short term NAAQS, criteria that are identified 
in ``Guideline for Interpretation of Air Quality Standards'' \88\ should 
be followed. This guideline specifies that a violation of a short term 
standard occurs at a site when the standard is exceeded a second time. 
Thus, emission limits that protect standards for averaging times of 24 
hours or less are appropriately based on the highest, second-highest 
estimated concentration plus a background concentration which can 
reasonably be assumed to occur with the concentration.
    11.2.3.2  NAAQS Analyses for New or Modified Sources. For new or 
modified sources predicted to have a significant ambient impact \63\ and 
to be located in areas designated attainment or unclassifiable for the 
SO2, Pb, NO2, or CO NAAQS, the demonstration as to whether the 
source will cause or contribute to an air quality violation should be 
based on: (1) The highest estimated annual average concentration 
determined from annual averages of individual years; or (2) the highest, 
second-highest estimated concentration for averaging times of 24-hours 
or less; and (3) the significance of the spatial and temporal 
contribution to any modeled violation. For Pb, the highest estimated 
concentration based on an individual calendar quarter averaging period 
should be used. Background concentrations should be added to the 
estimated impact of the source. The most restrictive standard should be 
used in all cases to assess the threat of an air quality violation. For 
new or modified sources predicted to have a significant ambient impact 
\63\ in areas designated attainment or unclassifiable for the PM-10 
NAAQS, the demonstration of whether or not the source will cause or 
contribute to an air quality violation should be based on sufficient 
data to show whether: (1) The projected 24-hour average concentrations 
will exceed the 24-hour NAAQS more than once per year, on average; (2) 
the expected (i.e., average) annual mean concentration will exceed the 
annual NAAQS; and (3) the source contributes significantly, in a 
temporal and spatial sense, to any modeled violation.
    11.2.3.3  PSD Air Quality Increments and Impacts. The allowable PSD 
increments for criteria pollutants are established by regulation and 
cited in 40 CFR 51.166. These maximum allowable increases in pollutant 
concentrations may be exceeded once per year at each site, except for 
the annual increment that may not be exceeded. The highest, second-
highest increase in estimated concentrations for the short term averages 
as determined by a model should be less than or equal to the permitted 
increment. The modeled annual averages should not exceed the increment.
    Screening techniques defined in sections 4 and 5 can sometimes be 
used to estimate short term incremental concentrations for the first new 
source that triggers the baseline in a given area. However, when 
multiple increment-consuming sources are involved in the calculation, 
the use of a refined model with at least 1 year of on-site or 5 years of 
off-site NWS data is normally required. In such cases, sequential 
modeling must demonstrate that the allowable increments are not exceeded 
temporally and spatially, i.e., for all receptors for each time period 
throughout the year(s) (time period means the appropriate PSD averaging 
time, e.g., 3-hour, 24-hour, etc.).
    The PSD regulations require an estimation of the SO2, 
particulate matter, and NO2 impact on any Class I area. Normally, 
Gaussian models should not be applied at distances greater than can be 
accommodated by the steady state assumptions inherent in such models. 
The maximum distance for refined Gaussian model application for 
regulatory purposes is generally considered to be 50km. Beyond the 50km 
range, screening techniques may be used to determine if more refined 
modeling is needed. If refined models are needed, long range transport 
models should be considered in accordance with section 7.2.6. As 
previously noted in sections 3 and 7, the need to involve the Federal 
Land Manager in decisions on potential air quality impacts, particularly 
in relation to PSD Class I areas, cannot be overemphasized.
    11.2.3.4  Emissions Trading Policy (Bubbles). EPA's final Emissions 
Trading Policy, commonly referred to as the ``bubble policy,'' was 
published in the Federal Register in 1986.\89\ Principles contained in 
the policy should be used to evaluate ambient impacts of emission 
trading activities.

[[Page 987]]

    Emission increases and decreases within the bubble should result in 
ambient air quality equivalence. Two levels of analysis are defined for 
establishing this equivalence. In a Level I analysis the source 
configuration and setting must meet certain limitations (defined in the 
policy) that ensure ambient equivalence; no modeling is required. In a 
Level II analysis a modeling demonstration of ambient equivalence is 
required but only the sources involved in the emissions trade are 
modeled. The resulting ambient estimates of net increases/decreases are 
compared to a set of significance levels to determine if the bubble can 
be approved. A Level II analysis requires the use of a refined model and 
the most recent readily available full year of representative 
meteorological data. Sequential modeling must demonstrate that the 
significance levels are met temporally and spatially, i.e., for all 
receptors for each time period throughout the year (time period means 
the appropriate NAAQS averaging time, e.g., 3-hour, 24-hour, etc.).
    For those bubbles that cannot meet the Level I or Level II 
requirements, the Emissions Trading Policy allows for a Level III 
analysis. A Level III analysis, from a modeling standpoint, is generally 
equivalent to the requirements for a standard SIP revision where all 
sources (and background) are considered and the estimates are compared 
to the NAAQS as in section 11.2.3.2.
    The Emissions Trading Policy allows States to adopt generic 
regulations for processing bubbles. The modeling procedures recommended 
in this guideline apply to such generic regulations. However, an added 
requirement is that the modeling procedures contained in any generic 
regulation must be replicable such that there is no doubt as to how each 
individual bubble will be modeled. In general this means that the 
models, the data bases and the procedures for applying the model must be 
defined in the regulation. The consequences of the replicability 
requirement are that bubbles for sources located in complex terrain and 
certain industrial sources where judgments must be made on source 
characterization cannot be handled generically.

                        12.0  References g,h

    1. Code of Federal Regulations (Title 40, Part 51): Protection of 
the Environment; Requirements for Preparation, Adoption, and Submittal 
of Implementation Plans.
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    \g\ Documents not available in the open literature or from the 
National Technical Information Service (NTIS) have been placed in Docket 
No. A-80-46 or A-88-04. Item Numbers for documents placed in the Docket 
are shown at the end of the reference.
    h Some EPA references, e.g., model user's guides, etc., are 
periodically revised. Users are referred to the SCRAM BBS 19 to 
download updates or addenda; see Appendix A of this appendix, ``A.O 
INTRODUCTION AND AVAILABILITY''.
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    2. Environmental Protection Agency, 1977. Guidelines for the 
Regional Evaluation of State and Local New Source Review Program. EPA 
Publication No. EPA-450/2-77-027. U.S. Environmental Protection Agency, 
Research Triangle Park, NC. (NTIS No. PB-275053)
    3. Environmental Protection Agency, 1980. Prevention of Significant 
Deterioration Workshop Manual. EPA Publication No. EPA-450/2-80-081. 
U.S. Environmental Protection Agency, Research Triangle Park, NC. (NTIS 
No. PB 81-136459)
    4. Environmental Protection Agency, 1981. Guideline for Fluid 
Modeling of Atmospheric Diffusion. EPA Publication No. EPA-600/8-81-009. 
U.S. Environmental Protection Agency, Research Triangle Park, NC. (NTIS 
No. PB 81-201410)
    5. Code of Federal Regulations (Title 40, part 50): Protection of 
the Environment; National Primary and Secondary Ambient Air Quality 
Standards.
    6. Environmental Protection Agency, 1988. Model Clearinghouse: 
Operational Plan (Revised). Staff Report. U.S. Environmental Protection 
Agency, Research Triangle Park, NC. (Docket No. A-88-04, II-J-1)
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Models. Federal Register, 45(61): 20157-20158.
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Bonitata, 1982. Evaluation of Rural Air Quality Simulation Models. EPA 
Publication No. EPA-450/4-82-020. U.S. Environmental Protection Agency, 
Research Triangle Park, NC. (NTIS No. PB 83-182758)
    9. Londergan, R.J., D.H. Minott, D.J. Wackter and R.R. Fizz, 1983. 
Evaluation of Urban Air Quality Simulation Models. EPA Publication No. 
EPA-450/4-83-020. U.S. Environmental Protection Agency, Research 
Triangle Park, NC. (NTIS No. PB 84-241173).
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Terrain Air Quality Simulation Models. EPA Publication No. EPA-450/4-84-
017. U.S. Environmental Protection Agency, Research Triangle Park, NC. 
(NTIS No. PB 85-119485).
    11. Fox, D.G., 1981. Judging Air Quality Model Performance. Bulletin 
of the American Meteorological Society, 62(5): 599-609.
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Model Reviews. EPA Publication No. EPA-600/3-83-108. U.S. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS No. PB 84-121037)
    13. American Meteorological Society, 1984. Review of the Attributes 
and Performance of

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Six Urban Diffusion Models. EPA Publication No. EPA-600/S3-84-089. U.S. 
Environmental Protection Agency, Research Triangle Park, NC. (NTIS No. 
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No. PB 88-162094)
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Preprocessor Program. EPA Publication No. EPA-600/8-88-004. U.S. 
Environmental Protection Agency, Research Triangle Park, NC. (NTIS No. 
PB 88-162102)
    25. Perry, S.G., D.J. Burns and A.J Cimorelli, 1990. User's Guide to 
CTDMPLUS: Volume 2. The Screening Mode (CTSCREEN). EPA Publication No. 
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Triangle Park, NC. (NTIS No. PB 91-136564)
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EPA-450/2-77-018. U.S. Environmental Protection Agency, Research 
Triangle Park, NC. (NTIS No. PB-274054)
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the SHORTZ and LONGZ Computer Programs, Volumes I and II. EPA 
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146100)
    28. Environmental Protection Agency, 1990. User's Guide for the 
Urban Airshed Model, Volume I-VIII. EPA Publication Nos. EPA-450/4-90-
007a-c, d(R), e-g; EPA-454/B-93-004, respectively. U.S. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS Nos. PB 91-131227, 
PB 91-131235, PB 91-131243, PB 93-122380, PB 91-131268, PB 92-145382, 
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91-013 U.S. Environmental Protection Agency, Research Triangle Park, NC. 
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City-Specific EKMA (Empirical Kinetic Modeling Approach). EPA 
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Research Triangle Park, NC. (NTIS No. PB 90-256777)
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(Ozone Isopleth Plotting with Optional Mechanisms), Volumes 1 and 2. EPA 
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Version 2: A Modeling Methodology for Predicting Pollutant 
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Estimate Impact of NOX Sources on Annual NO2 Concentrations. 
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Management Association, Vancouver, B.C.; 16-21 June 1991. (16 pp.) 
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Quality Considerations in Residential Planning. U.S. Superintendent of 
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Series. Volume I: Overview of Receptor Model Application to Particulate 
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[[Page 992]]

92-011 a and b. U.S. Environmental Protection Agency, Research Triangle 
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    99. Environmental Protection Agency, 1986. Evaluation of Short-Term 
Long-Range Transport Models, Volumes I and II. EPA Publication Nos. EPA-
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report prepared under a cooperative agreement with the Environmental 
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Photochemical Air Pollution, Part I-Theoretical Formulation, Part II-
Input Processor Network Design, and Part III-Tests of Numerical 
Algorithms. EPA Publication Nos. EPA-600/3-83-035, EPA-600/3-84-085, and 
EPA-600/3-85-037. U.S. Environmental Protection Agency, Research 
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the Regional Oxidant Model, Version 2.1. EPA Publication No. EPA-600/3-
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    103. Environmental Protection Agency, 1991. The Regional Oxidant 
Model (ROM) User's Guide. Part 1: The ROM Preprocessors. EPA Publication 
No. EPA-600/8-90-083a (NTIS No. PB 91-171926); Part 2: The ROM Processor 
Network. EPA Publication No. EPA-600/8-90-083b (NTIS No. PB 91-171934); 
Part 3: The Core Model. EPA Publication No. EPA-600/8-90-083c (NTIS No. 
PB 91-171942). U.S. Environmental Protection Agency, Research Triangle 
Park, NC.
    104. Chang, J.S., R.A. Brost, I.S.A. Isaksen, S. Madronich, P. 
Middleton, W.R. Stockwell and C.J. Waleck, 1987. A Three-Dimensional 
Eulerian Acid Deposition Model: Physical Concepts and Formulation. 
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and Validating the CMB. U.S. Environmental Protection Agency. EPA 
Publication No. EPA-450/4-87-010. U.S. Environmental Protection Agency, 
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Differences Among Receptor and Dispersion Models. EPA Publication No. 
EPA-450/4-87-008. U.S. Environmental Protection Agency, Research 
Triangle Park, NC. (NTIS No. PB 87-206504)
    107. Environmental Protection Agency, 1988. Chemical Mass Balance 
Model Diagnostics. EPA Publication No. EPA-450/4-88-005. U.S. 
Environmental Protection Agency, Research Triangle Park, NC. (NTIS No. 
PB 88-208319)
    108. Environmental Protection Agency, 1987. PM-10 SIP Development 
Guideline. EPA Publication No. EPA-450/2-86-001. U.S. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS No. PB 87-206488)
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Illustrate SIP Development for The PM-10 NAAQS. EPA Publication No. EPA-
450/4-87-012. U.S. Environmental Protection Agency, Research Triangle 
Park, NC. (NTIS No. PB 87-205191)
    110. Sestak, M. L. and A. R. Riebau, 1988. SASEM Simple Approach 
Smoke Estimation Model. U.S. Bureau of Land Management, Technical Note 
382. BLM/YA/PT-88/003 + 7000. Available from Printed Materials 
Distribution Section, BLM Service Center (SC-658B), Denver, CO 80225-
0047. (NTIS No. PB 90-185653)
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Applying Mesopuff II to Long Range Transport Problems. EPA Publication 
No. EPA-454/R-92-021. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.
    112. DiCristofaro, D.C. and S.R. Hanna, 1989. The Offshore and 
Coastal Dispersion (OCD) Model, Volume I: User's Guide, Volume II: 
Appendices. Version 4 Prepared for Minerals Management Services by Sigma 
Research Corporation, Westford, MA. (Docket No. A-88-04, II-D-A-06)
    113. Federal Aviation Administration, 1988. A Microcomputer 
Pollution Model for Civilian Airports and Air Force Bases, Model 
Description, Model Application and Background, and EDMS User's Guide 
(June 1991). Federal Aviation Administration Publication Nos. FAA-EE-88-
4 and 5; FAA-EE-91-3, respectively. United States Air Force Publication 
Nos. ESL-TR-88-53 and 55; ESL-TR-91-31, respectively. Federal Aviation 
Administration, Office of Environment and Energy, Washington, DC (NTIS 
Nos. ADA 199003, ADA 199794, and ADA 240528, respectively)
    114. Environmental Protection Agency, 1992. Workbook of Screening 
Techniques for Assessing Impacts of Toxic Air Pollutants (Revised). EPA 
Publication No. EPA-454/R-92-024. U.S. Environmental Protection Agency, 
Research Triangle Park, NC.
    115. Environmental Protection Agency, 1990. User's Guide to TSCREEN: 
A Model for Screening Toxic Air Pollutant Concentrations. EPA 
Publication No. EPA-450/4-90-013. U.S. Environmental Protection Agency, 
Research Triangle Park, NC. (NTIS No. PB 91-141820)

[[Page 993]]

    116. Environmental Protection Agency, 1989. Hazardous Waste TSDF 
Fugitive Particulate Matter Air Emissions Guidance Document. EPA 
Publication No. EPA-450/3-89-019. U.S. Environmental Protection Agency, 
Research Triangle Park, NC. (NTIS No. PB 90-103250)
    117. Environmental Protection Agency, 1989. Procedures for 
Conducting Air Pathway Analyses for Superfund Applications, Volume I 
Applications of Air Pathway Analyses for Superfund Activities and Volume 
IV Procedures for Dispersion Modeling and Air Monitoring for Superfund 
Air Pathway Analysis, EPA-450/1-89-001 and 004. U.S. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS Nos. PB 89-113374 
and PB 89-113382)
    118. Environmental Protection Agency, 1988. Air Dispersion Modeling 
as Applied to Hazardous Waste Incinerator Evaluations, An Introduction 
For the Permit Writer. U.S. Environmental Protection Agency, Research 
Triangle Park, NC. (Docket No. A-88-04, II-J-10)
    119. Environmental Protection Agency, 1989. U.S. EPA Office of Toxic 
Substances Graphical Exposure Modeling System (GEMS) User's Guide and 
GAMS Version 3.0 User's Guide (DRAFT). Prepared under Contract No. 68-
02-0481 for the U.S. Environmental Protection Agency, Washington, DC 
(Docket No. A-88-04, II-J-5a and II-J-13)
    120. Federal Emergency Management Agency, 1989. Handbook of Chemical 
Hazard Analysis Procedures. Available on request by writing to: Federal 
Emergency Management Agency, Publications Office, 500 C Street SW., 
Washington, DC 20472.
    121. Environmental Protection Agency, 1987. Technical Guidance for 
Hazards Analysis: Emergency Planning for Extremely Hazardous Substances. 
Available on request by telephone: 1-(800)-535-0202.
    122. Environmental Protection Agency, 1988. Superfund Exposure 
Assessment Manual. EPA-540/1-88-001, OSWER Directive 9285.5-1. Office of 
Remedial Response, Washington, DC 20460. (NTIS No. PB 89-135859)
    123. Environmental Protection Agency, 1989. Incineration of Sewage 
Sludge; Technical Support Document. Office of Water Regulations and 
Standards, Washington, DC 20460. (NTIS No. PB 89-136592)
    124. Environmental Protection Agency, 1989. Sludge Incineration 
Modeling (SIM) System User's Guide (Draft). Office of Pesticides and 
Toxic Substances, Exposure Evaluation Division, Washington, DC 20460. 
(NTIS No. PB 89-138762)
    125. Environmental Protection Agency, 1989. Risk Assessment Guidance 
for Superfund. Volume I: Human Health Evaluation Manual Part A. (Interim 
Final). OSWER Directive 9285.7-01a. Office of Solid Waste and Emergency 
Response, Washington, DC 20460.
    126. Environmental Protection Agency, 1986. User's Manual for the 
Human Exposure Model (HEM). EPA Publication No. EPA-450/5-86-001. Office 
of Air Quality Planning and Standards, Research Triangle Park, NC. 
27711.
    127. Environmental Protection Agency, 1992. A Tiered Modeling 
Approach for Assessing the Risks Due to Sources of Hazardous Air 
Pollutants. EPA Publication No. EPA-450/4-92-001. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS No. PB 92-164748)
    128. Environmental Protection Agency, 1992. Toxic Modeling System 
Short-term (TOXST) User's Guide. EPA Publication No. EPA-450/4-92-002. 
Environmental Protection Agency, Research Triangle Park, NC.
    129. Environmental Protection Agency, 1992. Toxic Modeling System 
Long-term (TOXLT) User's Guide. EPA Publication No. EPA-450/4-92-003. 
Environmental Protection Agency, Research Triangle Park, NC.
    130. Environmental Protection Agency, 1989. User's Guide for the 
DEGADIS 2.1 Dense Gas Dispersion Model. EPA Publication No. EPA-450/4-
89-019. U.S. Environmental Protection Agency, Research Triangle Park, 
NC. (NTIS No. PB 90-213893)
    131. Environmental Protection Agency, 1991. Guidance on the 
Application of Refined Models for Air Toxics Releases. EPA Publication 
No. EPA-450/4-91-007. Environmental Protection Agency, Research Triangle 
Park, NC. (NTIS No. PB 91-190983)
    132. Perry, R.H. and Chilton, C.H., 1973. Chemical Engineers' 
Handbook, Fifth Edition, McGraw-Hill Book Company, New York, NY.
    133. Environmental Protection Agency, 1988. User's Guide to SDM--A 
Shoreline Dispersion Model. EPA Publication No. EPA-450/4-88-017. U.S. 
Environmental Protection Agency, Research Triangle Park, NC. (NTIS No. 
PB 89-164305)
    134. Environmental Protection Agency, 1987. Analysis and Evaluation 
of Statistical Coastal Fumigation Models. EPA Publication No. EPA-450/4-
87002. U.S. Environmental Protection Agency, Research Triangle Park, NC. 
(NTIS No. PB 87-175519)
    135. Irwin, J.S., J.O. Paumier and R.W. Brode, 1988. Meteorological 
Processor for Regulatory Models (MPRM 1.2) User's Guide. EPA Publication 
No. EPA-600/3-88-043R. U.S. Environmental Protection Agency, Research 
Triangle Park, NC. (NTIS No. PB 89-127526)
    136. Bowen, B.M., J.M. Dewart and A.I. Chen, 1983. Stability Class 
Determination: A Comparison for One Site. Proceedings, Sixth Symposium 
on Turbulence and Diffusion. American Meteorological Society, Boston, 
MA; pp. 211-214. (Docket No. A-92-65, II-A-5)
    137. Environmental Protection Agency, 1993. An Evaluation of a Solar 
Radiation/Delta-T (SRDT) Method for Estimating Pasquill-Gifford (P-G) 
Stability Categories.

[[Page 994]]

EPA Publication No. EPA-454/R-93-055. U.S. Environmental Protection 
Agency, Research Triangle Park, NC. (NTIS No. PB 94-113958)
    138. Environmental Protection Agency, 1993. PCRAMMET User's Guide. 
EPA Publication No. EPA-454/B-93-009. U.S. Environmental Protection 
Agency, Research Triangle Park, NC.

                        13.0  Bibliography i

    American Meteorological Society, 1971-1985. Symposia on Turbulence, 
Diffusion, and Air Pollution (1st-7th). Boston, MA.
---------------------------------------------------------------------------

    \i\ The documents listed here are major sources of supplemental 
information on the theory and application of mathematical air quality 
models.
---------------------------------------------------------------------------

    American Meteorological Society, 1977-1984. Joint Conferences on 
Applications of Air Pollution Meteorology (1st-4th). Sponsored by the 
American Meteorological Society and the Air Pollution Control 
Association. Boston, MA.
    American Meteorological Society, 1978. Accuracy of Dispersion 
Models. Bulletin of the American Meteorological Society, 59(8): 1025-
1026.
    1American Meteorological Society, 1981. Air Quality Modeling and the 
Clean Air Act: Recommendations to EPA on Dispersion Modeling for 
Regulatory Applications. Boston, MA.
    Briggs, G.A., 1969. Plume Rise. U.S. Atomic Energy Commission 
Critical Review Series, Oak Ridge National Laboratory, Oak Ridge, TN.
    Dickerson, W.H. and P.H. Gudiksen, 1980. ASCOT FY 79 Program Report. 
Report UCRL-52899, ASCOT 80-1. Lawrence Livermore National Laboratory, 
Livermore, CA.
    Drake, R.L. and S.M. Barrager, 1979. Mathematical Models for 
Atmospheric Pollutants. EPRI EA-1131. Electric Power Research Institute, 
Palo Alto, CA.
    Environmental Protection Agency, 1978. Workbook for Comparison of 
Air Quality Models. EPA Publication No. EPA-450/2-78-028 a and b. U.S. 
Environmental Protection Agency, Research Triangle Park, NC.
    Fox, D.G., and J.E. Fairobent, 1981. NCAQ Panel Examines Uses and 
Limitations of Air Quality Models. Bulletin of the American 
Meteorological Society, 62(2): 218-221.
    Gifford, F.A., 1976. Turbulent Diffusion Typing Schemes: A Review. 
Nuclear Safety, 17(1): 68-86.
    Gudiksen, P.H., and M.H. Dickerson, Eds., Executive Summary: 
Atmospheric Studies in Complex Terrain Technical Progress Report FY-1979 
Through FY-1983. Lawrence Livermore National Laboratory, Livermore, CA. 
(Docket Reference No. II-I-103)
    Hales, J.M., 1976. Tall Stacks and the Atmospheric Environment. EPA 
Publication No. EPA-450/3-76-007. U.S. Environmental Protection Agency, 
Research Triangle Park, NC.
    Hanna, S.R., G.A. Briggs, J. Deardorff, B.A. Egan, G.A. Gifford and 
F. Pasquill, 1977. AMS Workshop on Stability Classification Schemes And 
Sigma Curves--Summary of Recommendations. Bulletin of the American 
Meteorological Society, 58(12): 1305-1309.
    Hanna, S. R., G. A. Briggs and R. P. Hosker, Jr., 1982. Handbook on 
Atmospheric Diffusion. Technical Information Center, U.S. Department of 
Energy, Washington, D.C.
    Haugen, D. A., Workshop Coordinator, 1975. Lectures on Air Pollution 
and Environmental Impact Analyses. Sponsored by the American 
Meteorological Society, Boston, MA.
    Hoffnagle, G. F., M. E. Smith, T. V. Crawford and T. J. Lockhart, 
1981. On-site Meteorological Insgtrumentation Requirements to 
Characterize Diffusion from Point Sources--A Workshop, 15-17 January 
1980, Raleigh, NC. Bulletin of the American Meteorological Society, 
62(2): 255-261.
    McMahon, R. A. and P. J. Denison, 1979. Empirical Atmospheric 
Deposition Parameters--A Survey. Atmospheric Environment, 13: 571-585.
    McRae, G. J., J. A. Leone and J. H. Seinfeld, 1983. Evaluation of 
Chemical Reaction Mechanisms for Photochemical Smog. Part I: Mechanism 
Descriptions and Documentation. EPA Publication No. EPA-600/3/83-086. 
U.S. Environmental Protection Agency, Research Triangle Park, NC.
    Pasquill, F. and F. B. Smith, 1983. Atmospheric Diffusion, 3rd 
Edition. Ellis Horwood Limited, Chichester, West Sussex, England, 438 
pp.
    Roberts, J. J., Ed., 1977. Report to U.S. EPA of the Specialists' 
Conference on the EPA Modeling Guideline. U.S. Environmental Protection 
Agency, Research Triangle Park, NC.
    Randerson, D., Ed., 1984. Atmospheric Science and Power Production. 
DOE/TIC 27601. Office of Scientific and Technical Information, U.S. 
Department of Energy, Oak Ridge, TN.
    Smith, M. E., Ed., 1973. Recommended Guide for the Prediction of the 
Dispersion of Airborne Effluents. The American Society of Mechanical 
Engineers, New York, NY.
    Stern, A. C., Ed., 1976. Air Pollution, Third Edition, Volume I: Air 
Pollutants, Their Transformation and Transport. Academic Press, New 
York, NY.
    Turner, D. B., 1979. Atmospheric Dispersion Modeling: A Critical 
Review. Journal of the Air Pollution Control Association, 29(5): 502-
519.
    Whiteman, C. D. and K. J. Allwine, 1982. Green River Ambient Model 
Assessment Program FY-1982 Progress Report. PNL-4520. Pacific Northwest 
Laboratory, Richland, WA.

[[Page 995]]

                         14.0  Glossary of Terms

    Air quality: Ambient pollutant concentrations and their temporal and 
spatial distribution.
    Algorithm: A specific mathematical calculation procedure. A model 
may contain several algorithms.
    Background: Ambient pollutant concentrations due to (1) natural 
sources, (2) nearby sources other than the one(s) currently under 
consideration; and (3) unidentified sources.
    Calibrate: An objective adjustment using measured air quality data 
(e.g., an adjustment based on least-squares linear regression).
    Calm: For purposes of air quality modeling, calm is used to define 
the situation when the wind is indeterminate with regard to speed or 
direction.
    Complex Terrain: Terrain exceeding the height of the stack being 
modeled.
    Computer Code: A set of statements that comprise a computer program.
    Evaluate: To appraise the performance and accuracy of a model based 
on a comparison of concentration estimates with observed air quality 
data.
    Fluid Modeling: Modeling conducted in a wind tunnel or water channel 
to quantitatively evaluate the influence of buildings and/or terrain on 
pollutant concentrations.
    Fugitive Dust: Dust discharged to the atmosphere in an unconfined 
flow stream such as that from unpaved roads, storage piles and heavy 
construction operations.
    Model: A quantitative or mathematical representation or simulation 
which attempts to describe the characteristics or relationships of 
physical events.
    Preferred Model: A refined model that is recommended for a specific 
type of regulatory application.
    Receptor: A location at which ambient air quality is measured or 
estimated.
    Receptor Models: Procedures that examine an ambient monitor sample 
of particulate matter and the conditions of its collection to infer the 
types or relative mix of sources impacting on it during collection.
    Refined Model: An analytical technique that provides a detailed 
treatment of physical and chemical atmospheric processes and requires 
detailed and precise input data. Specialized estimates are calculated 
that are useful for evaluating source impact relative to air quality 
standards and allowable increments. The estimates are more accurate than 
those obtained from conservative screening techniques.
    Rollback: A simple model that assumes that if emissions from each 
source affecting a given receptor are decreased by the same percentage, 
ambient air quality concentrations decrease proportionately.
    Screening Technique: A relatively simple analysis technique to 
determine if a given source is likely to pose a threat to air quality. 
Concentration estimates from screening techniques are conservative.
    Simple Terrain: An area where terrain features are all lower in 
elevation than the top of the stack of the source.

Appendix A to Appendix W of Part 51--Summaries of Preferred Air Quality 
                                 Models

                            Table of Contents

A.0  Introduction and Availability
A.1  Buoyant Line and Point Source Dispersion Model (BLP)
A.2  CALINE3
A.3  Climatological Dispersion Model (CDM 2.0)
A.4  Gaussian-Plume Multiple Source Air Quality Algorithm (RAM)
A.5  Industrial Source Complex Model (ISC3)
A.6  Multiple Point Gaussian Dispersion Algorithm With Terrain 
          Adjustment (MPTER)
A.7  Single Source (CRSTER) MODEL
A.8  Urban Airshed Model (UAM)
A.9  Offshore and Coastal Dispersion Model (OCD)
A.10  Emissions and Dispersion Model System (EDMS)
A.11  Complex Terrain Dispersion Model Plus Algorithms for Unstable 
          situations (CTDMPLUS)
A.REF References

                   A.0  Introduction and Availability

    This appendix summarizes key features of refined air quality models 
preferred for specific regulatory applications. For each model, 
information is provided on availability, approximate cost in 1990, 
regulatory use, data input, output format and options, simulation of 
atmospheric physics, and accuracy. These models may be used without a 
formal demonstration of applicability provided they satisfy the 
recommendations for regulatory use; not all options in the models are 
necessarily recommended for regulatory use.
    Many of these models have been subjected to a performance evaluation 
using comparisons with observed air quality data. A summary of such 
comparisons for models contained in this appendix is included in ``A 
Survey of Statistical Measures of Model Performance and Accuracy for 
Several Air Quality Models,'' EPA-450/4-83-001. Where possible, several 
of the models contained herein have been subjected to evaluation 
exercises, including (1) statistical performance tests recommended by 
the American Meteorological Society and (2) peer scientific reviews. The 
models in this appendix have been selected on the basis of the results 
of the model evaluations, experience with previous use, familiarity of 
the model to various air

[[Page 996]]

quality programs, and the costs and resource requirements for use.
    The Availability statement for models in this Appendix that refers 
to the User's Network for Applied Modeling of Air Pollution (UNAMAP) 
should be ignored since UNAMAP is no longer operational. However, all 
models and user's documentation in this appendix are available from: 
Computer Products, National Technical Information Service (NTIS), U.S. 
Department of Commerce, Springfield, VA 22161, Phone: (703) 487-4650.
    In addition, model codes and selected, abridged user's guides are 
available from the Support Center for Regulatory Air Models Bulletin 
Board System \19\ (SCRAM BBS), telephone (919) 541-5742. The SCRAM BBS 
is an electronic bulletin board system designed to be user friendly and 
accessible from anywhere in the country. Model users with personal 
computers are encouraged to use the SCRAM BBS to download current model 
codes and text files.

        A.1  Buoyant Line and Point Source Dispersion Model (BLP)

                                Reference

    Schulman, Lloyd L., and Joseph S. Scire, 1980. Buoyant Line and 
Point Source (BLP) Dispersion Model User's Guide. Document P-7304B. 
Environmental Research and Technology, Inc., Concord, MA. (NTIS No. PB 
81-164642)

                              Availability

    This model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161, Phone: (703) 487-4650.

                                Abstract:

    BLP is a Gaussian plume dispersion model designed to handle unique 
modeling problems associated with aluminum reduction plants, and other 
industrial sources where plume rise and downwash effects from stationary 
line sources are important.

                  a. Recommendations for Regulatory Use

    The BLP model is appropriate for the following applications:
    Aluminum reduction plants which contain buoyant, elevated line 
sources;
    Rural areas;
    Transport distances less than 50 kilometers;
    Simple terrain; and
    One hour to one year averaging times.
    The following options should be selected for regulatory 
applications:
    Rural (IRU=1) mixing height option;
    Default (no selection) for plume rise wind shear (LSHEAR), 
transitional point source plume rise (LTRANS), vertical potential 
temperature gradient (DTHTA), vertical wind speed power law profile 
exponents (PEXP), maximum variation in number of stability classes per 
hour (IDELS), pollutant decay (DECFAC), the constant in Briggs' stable 
plume rise equation (CONST2), constant in Briggs' neutral plume rise 
equation (CONST3), convergence criterion for the line source 
calculations (CRIT), and maximum iterations allowed for line source 
calculations (MAXIT); and
    Terrain option (TERAN) set equal to 0.0, 0.0, 0.0, 0.0, 0.0, 0.0.
    For other applications, BLP can be used if it can be demonstrated to 
give the same estimates as a recommended model for the same application, 
and will subsequently be executed in that mode.
    BLP can be used on a case-by-case basis with specific options not 
available in a recommended model if it can be demonstrated, using the 
criteria in section 3.2, that the model is more appropriate for a 
specific application.

                          b. Input Requirements

    Source data: Point sources require stack location, elevation of 
stack base, physical stack height, stack inside diameter, stack gas exit 
velocity, stack gas exit temperature, and pollutant emission rate. Line 
sources require coordinates of the end points of the line, release 
height, emission rate, average line source width, average building 
width, average spacing between buildings, and average line source 
buoyancy parameter.
    Meteorological data: Hourly surface weather data from punched cards 
or from the preprocessor program RAMMET which provides hourly stability 
class, wind direction, wind speed, temperature, and mixing height.
    Receptor data: Locations and elevations of receptors, or location 
and size of receptor grid or request automatically generated receptor 
grid.

                                c. Output

    Printed output (from a separate post-processor program) includes:
    Total concentration or, optionally, source contribution analysis; 
monthly and annual frequency distributions for 1-, 3-, and 24-hour 
average concentrations; tables of 1-, 3-, and 24-hour average 
concentrations at each receptor; table of the annual (or length of run) 
average concentrations at each receptor;
    Five highest 1-, 3-, and 24-hour average concentrations at each 
receptor; and
    Fifty highest 1-, 3-, and 24-hour concentrations over the receptor 
field.

                            d. Type of Model

    BLP is a gaussian plume model.

[[Page 997]]

                           e. Pollutant Types

    BLP may be used to model primary pollutants. This model does not 
treat settling and deposition.

                     f. Source-Receptor Relationship

    BLP treats up to 50 point sources, 10 parallel line sources, and 100 
receptors arbitrarily located.
    User-input topographic elevation is applied for each stack and each 
receptor.

                            g. Plume Behavior

    BLP uses plume rise formulas of Schulman and Scire (1980).
    Vertical potential temperature gradients of 0.02 Kelvin per meter 
for E stability and 0.035 Kelvin per meter are used for stable plume 
rise calculations. An option for user input values is included.
    Transitional rise is used for line sources.
    Option to suppress the use of transitional plume rise for point 
sources is included.
    The building downwash algorithm of Schulman and Scire (1980) is 
used.

                           h. Horizontal Winds

    Constant, uniform (steady-state) wind is assumed for an hour.
    Straight line plume transport is assumed to all downwind distances.
    Wind speeds profile exponents of 0.10, 0.15, 0.20, 0.25, 0.30, and 
0.30 are used for stability classes A through F, respectively. An option 
for userdefined values and an option to suppress the use of the wind 
speed profile feature are included.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Rural dispersion coefficients are from Turner (1969), with no 
adjustment made for variations in surface roughness or averaging time.
    Six stability classes are used.

                         k. Vertical Dispersion

    Rural dispersion coefficients are from Turner (1969), with no 
adjustment made for variations in surface roughness.
    Six stability classes are used.
    Mixing height is accounted for with multiple reflections until the 
vertical plume standard deviation equals 1.6 times the mixing height; 
uniform mixing is assumed beyond that point.
    Perfect reflection at the ground is assumed.

                       l. Chemical Transformation

    Chemical transformations are treated using linear decay. Decay rate 
is input by the user.

                           m. Physical Removal

    Physical removal is not explicitly treated.

                          n. Evaluation Studies

    Schulman, L.L., and J.S. Scire, 1980. Buoyant Line and Point Source 
(BLP) Dispersion Model User's Guide, P-7304B. Environmental Research and 
Technology, Inc., Concord, MA.
    Scire, J.S., and L.L. Schulman, 1981. Evaluation of the BLP and ISC 
Models with SF6 Tracer Data and SO2 Measurements at Aluminum 
Reduction Plants. APCA Specialty Conference on Dispersion Modeling for 
Complex Sources, St. Louis, MO.

                              A.2  CALINE3

                                Reference

    Benson, Paul E, 1979. CALINE3--A Versatile Dispersion Model for 
Predicting Air Pollutant Levels Near Highways and Arterial Streets. 
Interim Report, Report Number FHWA/CA/TL-79/23. Federal Highway 
Administration, Washington, DC. (NTIS No. PB 80-220841)

                              Availability

    The CALINE3 model computer tape is available from NTIS as PB 80-
220833. The model is also available from the California Department of 
Transportation (manual free of charge and approximately $50 for the 
computer tape). Requests should be directed to: Mr. Marlin Beckwith, 
Chief, Office of Computer Systems, California Department of 
Transportation, 1120 N. Street, Sacramento, CA 95814.

                                Abstract

    CALINE3 can be used to estimate the concentrations of nonreactive 
pollutants from highway traffic. This steady-state Gaussian model can be 
applied to determine air pollution concentrations at receptor locations 
downwind of ``at-grade,'' ``fill,'' ``bridge,'' and ``cut section'' 
highways located in relatively uncomplicated terrain. The model is 
applicable for any wind direction, highway orientation, and receptor 
location. The model has adjustments for averaging time and surface 
roughness, and can handle up to 20 links and 20 receptors. It also 
contains an algorithm for deposition and settling velocity so that 
particulate concentrations can be predicted.

                  a. Recommendations for Regulatory Use

    CALINE-3 is appropriate for the following applications:
    Highway (line) sources;

[[Page 998]]

    Urban or rural areas;
    Simple terrain;
    Transport distances less than 50 kilometers; and
    One-hour to 24-hour averaging times.

                          b. Input Requirements

    Source data: Up to 20 highway links classed as ``at-grade,'' 
``fill,'' ``bridge,'' or ``depressed''; coordinates of link end points; 
traffic volume; emission factor; source height; and mixing zone width.
    Meteorological data: Wind speed, wind angle (measured in degrees 
clockwise from the Y axis), stability class, mixing height, ambient 
(background to the highway) concentration of pollutant.
    Receptor data: Coordinates and height above ground for each 
receptor.

                                c. Output

    Printed output includes:
    Concentration at each receptor for the specified meteorological 
condition.

                            d. Type of Model

    CALINE-3 is a Gaussian plume model.

                           e. Pollutant Types

    CALINE-3 may be used to model primary pollutants.

                     f. Source-Receptor Relationship

    Up to 20 highway links are treated.
    CALINE-3 applies user input location and emission rate for each 
link. User-input receptor locations are applied.

                            g. Plume Behavior

    Plume rise is not treated.

                           h. Horizontal Winds

    User-input hourly wind speed and direction are applied.
    Constant, uniform (steady-state) wind is assumed for an hour.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Six stability classes are used.

    Rural dispersion coefficients from Turner (1969) are used, with 
adjustment for roughness length and averaging time.

    Initial traffic-induced dispersion is handled implicitly by plume 
size parameters.

                         k. Vertical Dispersion

    Six stability classes are used.
    Empirical dispersion coefficients from Benson (1979) are used 
including an adjustment for roughness length.
    Initial traffic-induced dispersion is handled implicitly by plume 
size parameters.
    Adjustment for averaging time is included.

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    Optional deposition calculations are included.

                          n. Evaluation Studies

    Bemis, G. R. et al., 1977. Air Pollution and Roadway Location, 
Design, and Operation--Project Overview. FHWA-CA-TL-7080-77-25, Federal 
Highway Administration, Washington, DC.

    Cadle, S. H. et al., 1976. Results of the General Motors Sulfate 
Dispersion Experiment, GMR-2107. General Motors Research Laboratories, 
Warren, MI.

    Dabberdt, W. F., 1975. Studies of Air Quality on and Near Highways, 
Project 2761. Stanford Research Institute, Menlo Park, CA.

             A.3  Climatological Dispersion Model (CDM 2.0)

                               References

    Irwin, J. S., T. Chico, and J. Catalano, 1985. CDM 2.0-
Climatological Dispersion Model--User's Guide. U.S. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS No. PB 86-136546)

                              Availability

    This model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161, Phone: (703) 487-4650.

                                Abstract

    CDM is a climatological steady-state Gaussian plume model for 
determining long-term (seasonal or annual) arithmetic average pollutant 
concentrations at any ground-level receptor in an urban area.

                  a. Recommendations for Regulatory Use

    CDM is appropriate for the following applications:
    Point and area sources;
    Urban areas;
    Flat terrain;
    Transport distances less than 50 kilometers;
    Long term averages over one month to one year or longer.
    The following option should be selected for regulatory applications:
    Set the regulatory ``default option'' (NDEF=l) which automatically 
selects stack

[[Page 999]]

tip downwash, final plume rise, buoyancy-induced dispersion (BID), and 
the appropriate wind profile exponents.
    Enter ``O'' for pollutant half-life for all pollutants except for 
SO2 in an urban setting. This entry results in no decay (infinite 
half-life) being calculated. For SO2 in an urban setting, the 
pollutant half-life (in hours) should be set to 4.0.

                          b. Input Requirements

    Source data: Location, average emissions rates and heights of 
emissions for point and area sources. Point source data requirements 
also include stack gas temperature, stack gas exit velocity, and stack 
inside diameter for plume rise calculations for point sources.
    Meteorological data: Stability wind rose (STAR deck day/night 
version), average mixing height and wind speed in each stability 
category, and average air temperature.
    Receptor data: Cartesian coordinates of each receptor.

                                c. Output

    11Printed output includes:
    Average concentrations for the period of the stability wind rose 
data (arithmetic mean only) at each receptor, and
    Optional point and area concentration rose for each receptor.

                            d. Type of Model

    CDM is a climatological Gaussian plume model.

                           e. Pollutant Types

    CDM may be used to model primary pollutants. Settling and deposition 
are not treated.

                     f. Source-Receptor Relationship

    CDM applies user-specified locations for all point sources and 
receptors.
    Area sources are input as multiples of a user-defined unit area 
source grid size.
    User specified release heights are applied for individual point 
sources and the area source grid.
    Actual separation between each source-receptor pair is used.
    The user may select a single height at or above ground level that 
applies to all receptors.
    No terrain differences between source and receptor are treated.

                            g. Plume Behavior

    CDM uses Briggs (1969, 1971, 1975) plume rise equations. Optionally 
a plume rise-wind speed product may be input for each point source.
    Stack tip downwash equation from Briggs (1974) is preferred for 
regulatory use. The Bjorklund and Bowers (1982) equation is also 
included.
    No plume rise is calculated for area sources.
    Does not treat fumigation or building downwash.

                           h. Horizontal Winds

    Wind data are input as a stability wind rose (joint frequency 
distribution of 16 wind directions, 6 wind classes, and 5 stability 
classes).
    Wind speed profile exponents for the urban case (EPA, 1980) are 
used, assuming the anemometer height is at 10.0 meters.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Pollutants are assumed evenly distributed across a 22.5 or 10.0 
degree sector.

                         k. Vertical Dispersion

    There are seven vertical dispersion parameter schemes, but the 
following is recommended for regulatory applications:

 Briggs-urban (Gifford, 1976).

    Mixing height has no effect until dispersion coefficient equals 0.8 
times the mixing height; uniform vertical mixing is assumed beyond that 
point.
    Buoyancy-induced disperion (Pasquill, 1976) is included as an 
option. Perfect reflection is assumed at the ground.

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Half-
life is input by the user.

                           m. Physical Removal

    Physical removal is not explicitly treated.

                          n. Evaluation Studies

    Irwin, J. S., and T. M. Brown, 1985. A Sensitivity Analysis of the 
Treatment of Area Sources by the Climatological Dispersion Model. 
Journal of Air Pollution Control Association, 35: 359-364.
    Londergan, R., D. Minott, D. Wachter and R. Fizz, 1983. Evaluation 
of Urban Air Quality Simulation Models, EPA Publication No. EPA-450/4-
83-020. U.S. Environmental Protection Agency, Research Triangle Park, 
NC.
    Busse, A. D. and J. R. Zimmerman, 1973. User's Guide for the 
Climatological Dispersion Model--Appendix E. EPA Publication No. EPA/R4-
73-024. Office of Research and Development, Research Triangle Park, NC.
    Zimmerman, J. R., 1971. Some Preliminary Results of Modeling from 
the Air Pollution Study of Ankara, Turkey, Proceedings of the Second 
Meeting of the Expert Panel on Air Pollution Modeling, NATO Committee on

[[Page 1000]]

the Challenges of Modern Society, Paris, France.
    Zimmerman, J. R., 1972. The NATO/CCMS Air Pollution Study of St. 
Louis, Missouri. Presented at the Third Meeting of the Expert Panel on 
Air Pollution Modeling, NATO Committee on the Challenges of Modern 
Society, Paris, France.

     A.4  Gaussian-Plume Multiple Source Air Quality Algorithm (RAM)

                                Reference

    Turner, D. B., and J. H. Novak, 1978. User's Guide for RAM. 
Publication No. EPA-600/8-78-016, Vol. a and b. U.S. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS Nos. PB 294791 and 
PB 294792)
    Catalano, J. A., D. B. Turner, and H. Novak, 1987. User's Guide for 
RAM-- Second Edition. U.S. Environmental Protection Agency, Research 
Triangle Park, NC. (Distributed as part of UNAMAP, Version 6), 
Documentation)

                              Availability

    This model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161, Phone: (703) 487-4650.

                                Abstract

    RAM is a steady-state Gaussian plume model for estimating 
concentrations of relatively stable pollutants, for averaging times from 
an hour to a day, from point and area sources in a rural or urban 
setting. Level terrain is assumed. Calculations are performed for each 
hour.

                  a. Recommendations for Regulatory Use

    RAM is appropriate for the following applications:
    Point and area sources;
    Urban areas;
    Flat terrain;
    Transport distances less than 50 kilometers; and
    One hour to one year averaging times.
    The following options should be selected for regulatory 
applications:
    Set the regulatory ``default option'' to automatically select stack 
tip downwash, final plume rise, buoyancy-induced dispersion (BID), the 
new treatment for calms, the appropriate wind profile exponents, and the 
appropriate value for pollutant half-life.

                          b. Input Requirements

    Source data: Point sources require location, emission rate, physical 
stack height, stack gas exit velocity, stack inside diameter and stack 
gas temperature. Area sources require location, size, emission rate, and 
height of emissions.
    Meteorological data: Hourly surface weather data from the 
preprocessor program RAMMET which provides hourly stability class, wind 
direction, wind speed, temperature, and mixing height. Actual anemometer 
height (a single value) is also required.
    Receptor data: Coordinates of each receptor. Options for automatic 
placement of receptors near expected concentration maxima, and a gridded 
receptor array are included.

                                c. Output

    Printed output optionally includes:
    One to 24-hour and annual average concentrations at each receptor,
    Limited individual source contribution list, and
    Highest through fifth highest concentrations at each receptor for 
period, with the highest and high, second-high values flagged.

                            d. Type of Model

    RAM is a Gaussian plume model.

                           e. Pollutant Types

    RAM may be used to model primary pollutants. Settling and deposition 
are not treated.

                     f. Source-Receptor Relationship

    RAM applies user-specified locations for all point sources and 
receptors.
    Area sources are input as multiples of a user-defined unit area 
source grid size.
    User specified stack heights are applied for individual point 
sources. 1Up to 3 effective release heights may be specified for the 
area sources. Area source release heights are assumed to be appropriate 
for a 5 meter per second wind and to be inversely proportional to wind 
speed.
    Actual separation between each source-receptor pair is used.
    All receptors are assumed to be at the same height at or above 
ground level.
    No terrain differences between source and receptor are accounted 
for.

                            g. Plume Behavior

    RAM uses Briggs (1969, 1971, 1975) plume rise equations for final 
rise.
    Stack tip downwash equation from Briggs (1974) is used.
    A user supplied fraction of the area source height is treated as the 
physical height. The remainder is assumed to be plume rise for a 5 meter 
per second wind speed, and to be inversely proportional to wind speed.
    Fumigation and building downwash are not treated.

[[Page 1001]]

                           h. Horizontal Winds

    Constant, uniform (steady state) wind is assumed for an hour.
    Straight line plume transport is assumed to all downwind distances.
    Separate wind speed profile exponents (EPA, 1980) for urban cases 
are used.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Urban dispersion coefficients from Briggs (Gifford, 1976) are used.
    Buoyancy-induced dispersion (Pasquill, 1976) is included.
    Six stability classes are used.

                         k. Vertical Dispersion

    Urban dispersion coefficients from Briggs (Gifford, 1976) are used.
    Buoyancy-induced dispersion (Pasquill, 1976) is included.
    Six stability classes are used.
    Mixing height is accounted for with multiple reflections until the 
vertical plume standard deviation equals 1.6 times the mixing height; 
uniform vertical mixing is assumed beyond that point.
    Perfect reflection is assumed at the ground.

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Half-
life is input by the user.

                           m. Physical Removal

    Physical removal is not explicitly treated.

                          n. Evaluation Studies

    Ellis, H., P. Lou, and G. Dalzell, 1980. Comparison Study of 
Measured and Predicted Concentrations with the RAM Model at Two Power 
Plants Along Lake Erie, Second Joint Conference on Applications of Air 
Pollution Meteorology, New Orleans, LA.
    Environmental Research and Technology, 1980. SO2 Monitoring and 
RAM (Urban) Model Comparison Study in Summit County, Ohio. Document P-
3618-152, Environmental Research & Technology, Inc., Concord, MA.
    Guldberg, P. H., and C. W. Kern, 1978. A Comparison Validation of 
the RAM and PTMTP Models for Short-Term Concentrations in Two Urban 
Areas. Journal of Air Pollution Control Association, 28: 907-910.
    Hodanbosi, R. R., and L. K. Peters, 1981. Evaluation of RAM Model 
for Cleveland, Ohio. Journal of Air Pollution Control Association, 31: 
253-255.
    Kennedy, K. H., R. D. Siegel, and M. P. Steinberg, 1981. Case-
Specific Evaluation of the RAM Atmospheric Dispersion Model in an Urban 
Area, 74th Annual Meeting of the American Institute of Chemical 
Engineers, New Orleans, LA.
    Kummier, R. H., B. Cho, G. Roginski, R. Sinha and A. Greenburg, 
1979. A Comparative Validation of the RAM and Modified SAI Models for 
Short-Term SO2 Concentrations in Detroit. Journal of Air Pollution 
Control Association, 29: 720-723.
    Londergan, R. J., N. E. Bowne, D. R. Murray, H. Borenstein, and J. 
Mangano, 1980. An Evaluation of Short-Term Air Quality Models Using 
Tracer Study Data, Report No. 4333, American Petroleum Institute, 
Washington, D.C.
    Morgenstern, P., M. J. Geraghty, and A. McKnight, 1979. A 
Comparative Study of the RAM (Urban) and RAMR (Rural) Models for Short-
term SO2 Concentrations in Metropolitan Indianapolis. 72nd Annual 
Meeting of the Air Pollution Control Association, Cincinnati, OH.
    Ruff, R. E., 1980. Evaluation of the RAM Using the RAPS Data Base, 
Contract 68-02-2770, SRI International, Menlo Park, CA.
    Londergan, R., D. Minott, D. Wackter, and R. Fizz, 1983. Evaluation 
of Urban Air Quality Simulation Models. EPA Publication No. EPA-450/4-
83-020. U.S. Environmental Protection Agency, Research Triangle Park, 
NC.

               A.5  Industrial Source Complex Model (ISC3)

                                Reference

    Environmental Protection Agency, 1995. User's Guide for the 
Industrial Source Complex (ISC3) Dispersion Models, Volumes 1 and 2. EPA 
Publication Nos. EPA-454/B-95-003a & b. Environmental Protection Agency, 
Research Triangle Park, NC. (NTIS Nos. PB-95-222741 and PB 95-222758, 
respectively)

                              Availability

    The model code is available on the Support Center for Regulatory Air 
Models Bulletin Board System and also from the National Technical 
Information Service (see page A-1).

                                Abstract

    The ISC3 model is a steady-state Gaussian plume model which can be 
used to assess pollutant concentrations from a wide variety of sources 
associated with an industrial source complex. This model can account for 
the following: Settling and dry deposition of particles; downwash; area, 
line and volume sources; plume rise as a function of downwind distance; 
separation of point sources; and limited terrain adjustment. It operates 
in both long-term and short-term modes.

                  a. Recommendations for Regulatory Use

    ISC3 is appropriate for the following applications:

[[Page 1002]]

     Industrial source complexes;
     Rural or urban areas;
     Flat or rolling terrain;
     Transport distances less than 50 kilometers;
     1-hour to annual averaging times; and
     Continuous toxic air emissions.
    The following options should be selected for regulatory 
applications: 1For short term or long term modeling, set the regulatory 
``default option''; i.e., use the keyword DFAULT, which automatically 
selects stack tip downwash, final plume rise, buoyancy induced 
dispersion (BID), the vertical potential temperature gradient, a 
treatment for calms, the appropriate wind profile exponents, the 
appropriate value for pollutant half-life, and a revised building wake 
effects algorithm; set the ``rural option'' (use the keyword RURAL) or 
``urban option'' (use the keyword URBAN); and set the ``concentration 
option'' (use the keyword CONC).

                          b. Input Requirements

    Source data: Location, emission rate, physical stack height, stack 
gas exit velocity, stack inside diameter, and stack gas temperature. 
Optional inputs include source elevation, building dimensions, particle 
size distribution with corresponding settling velocities, and surface 
reflection coefficients.
    Meteorological data: ISCST3 requires hourly surface weather data 
from the preprocessor program RAMMET, which provides hourly stability 
class, wind direction, wind speed, temperature, and mixing height. For 
ISCST3, input includes stability wind rose (STAR deck), average 
afternoon mixing height, average morning mixing height, and average air 
temperature.
    Receptor data: coordinates and optional ground elevation for each 
receptor.

                                c. Output

    Printed output options include:
     Program control parameters, source data, and receptor data;
     Tables of hourly meteorological data for each specified 
day;
     ``N''-day average concentration or total deposition 
calculated at each receptor for any desired source combinations;
     Concentration or deposition values calculated for any 
desired source combinations at all receptors for any specified day or 
time period within the day;
     Tables of highest and second highest concentration or 
deposition values calculated at each receptor for each specified time 
period during a(n) ``N''-day period for any desired source combinations, 
and tables of the maximum 50 concentration or deposition values 
calculated for any desired source combinations for each specified time 
period.

                            d. Type of Model

    ISC3 is a Gaussian plume model. It has been revised to perform a 
double integration of the Gaussian plume kernel for area sources.

                           e. Pollutant Types

    ISC3 may be used to model primary pollutants and continuous releases 
of toxic and hazardous waste pollutants. Settling and deposition are 
treated.

                    f. Source-Receptor Relationships

    ISC3 applies user-specified locations for point, line, area and 
volume sources, and user-specified receptor locations or receptor rings.
    User input topographic evaluation for each receptor is used. 
Elevations above stack top are reduced to the stack top elevation, i.e., 
``terrain chopping''.
    User input height above ground level may be used when necessary to 
simulate impact at elevated or ``flag pole'' receptors, e.g., on 
buildings.
    Actual separation between each source-receptor pair is used.

                            g. Plume Behavior

    ISC3 uses Briggs (1969, 1971, 1975) plume rise equations for final 
rise.
    Stack tip downwash equation from Briggs (1974) is used.
    Revised building wake effects algorithm is used. For stacks higher 
than building height plus one-half the lesser of the building height or 
building width, the building wake algorithm of Huber and Snyder (1976) 
is used. For lower stacks, the building wake algorithm of Schulman and 
Scire (Schulman and Hanna, 1986) is used, but stack tip downwash and BID 
are not used.
    For rolling terrain (terrain not above stack height), plume 
centerline is horizontal at height of final rise above source.
    Fumigation is not treated.

                           h. Horizontal Winds

    Constant, uniform (steady-state) wind is assumed for each hour.
    Straight line plume transport is assumed to all downwind distances.
    Separate wind speed profile exponents (EPA, 1980) for both rural and 
urban cases are used.
    An optional treatment for calm winds is included for short term 
modeling.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

[[Page 1003]]

                        j. Horizontal Dispersion

    Rural dispersion coefficients from Turner (1969) are used, with no 
adjustments for surface roughness or averaging time.
    Urban dispersion coefficients from Briggs (Gifford, 1976) are used.
    Buoyancy induced dispersion (Pasquill, 1976) is included.
    Six stability classes are used.

                         k. Vertical Dispersion

    Rural dispersion coefficients from Turner (1969) are used, with no 
adjustments for surface roughness.
    Urban dispersion coefficients from Briggs (Gifford, 1976) are used.
    Buoyancy induced dispersion (Pasquill, 1976) is included.
    Six stability classes are used.
    Mixing height is accounted for with multiple reflections until the 
vertical plume standard deviation equals 1.6 times the mixing height; 
uniform vertical mixing is assumed beyond that point.
    Perfect reflection is assumed at the ground.

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Time 
constant is input by the user.

                           m. Physical Removal

    Dry deposition effects for particles are treated using a resistance 
formulation in which the deposition velocity is the sum of the 
resistances to pollutant transfer within the surface layer of the 
atmosphere, plus a gravitational settling term (EPA, 1994), based on the 
modified surface depletion scheme of Horst (1983).

                          n. Evaluation Studies

    Bowers, J. F., and A. J. Anderson, 1981. An Evaluation Study for the 
Industrial Source Complex (ISC) Dispersion Model, EPA Publication No. 
EPA-450/4-81-002. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.
    Bowers, J. F., A. J. Anderson, and W. R. Hargraves, 1982. Tests of 
the Industrial Source Complex (ISC) Dispersion Model at the Armco 
Middletown, Ohio Steel Mill, EPA Publication No. EPA-450/4-82-006. U.S. 
Environmental Protection Agency, Research Triangle Park, NC.
    Environmental Protection Agency, 1992. Comparison of a Revised Area 
Source Algorithm for the Industrial Source Complex Short Term Model and 
Wind Tunnel Data. EPA Publication No. EPA-454/R-92-014. U.S. 
Environmental Protection Agency, Research Triangle Park, NC. (NTIS No. 
PB 93-226751)
    Environmental Protection Agency, 1992. Sensitivity Analysis of a 
Revised Area Source Algorithm for the Industrial Source Complex Short 
Term Model. EPA Publication No. EPA-454/R-92-015. U.S. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS No. PB 93-226769)
    Environmental Protection Agency, 1992. Development and Evaluation of 
a Revised Area Source Algorithm for the Industrial Source Complex Long 
Term Model. EPA Publication No. EPA-454/R-92-016. U.S. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS No. PB 93-226777)
    Environmental Protection Agency, 1994. Development and Testing of a 
Dry Deposition Algorithm (Revised). EPA Publication No. EPA-454/R-94-
015. U.S. Environmental Protection Agency, Research Triangle Park, NC. 
(NTIS No. PB 94-183100)
    Scire, J. S., and L. L. Schulman, 1981. Evaluation of the BLP and 
ISC Models with SF6 Tracer Data and SO2 Measurements at 
Aluminum Reduction Plants. Air Pollution Control Association Specialty 
Conference on Dispersion Modeling for Complex Sources, St. Louis, MO.
    Schulman, L. L., and S. R. Hanna, 1986. Evaluation of Downwash 
Modification to the Industrial Source Complex Model. Journal of the Air 
Pollution Control Association, 36: 258-264.

     A.6  Multiple Point Gaussian Dispersion Algorithm With Terrain 
                           Adjustment (MPTER)

                                Reference

    Pierce, Thomas D. and D. Bruce Turner, 1980. User's Guide for MPTER. 
EPA Publication No. EPA-600/8-80-016. U.S. Environmental Protection 
Agency, Research Triangle Park, NC. (NTIS No. PB 80-197361)
    Chico, T. and J. A. Catalano, 1986. Addendum to the User's Guide for 
MPTER. U.S. Environmental Protection Agency. Research Triangle Park, NC 
27711. (Distributed as part of UNAMAP. Version 6, Documentation)

                              Availability

    This model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161, Phone: (703) 487-4650.

                                Abstract

    MPTER is a Multiple Point Source Algorithm. This algorithm is useful 
for estimating air quality concentrations of relatively non-reactive 
pollutants. Hourly estimates are made using the Gaussian steady state 
model.

                  a. Recommendations for Regulatory Use

    MPTER is appropriate for the following applications:

[[Page 1004]]

    Point sources;
    Rural or urban areas;
    Flat or rolling terrain (no terrain above stack height);
    Transport distances less than 50 kilometers; and
    One hour to one year averaging times.
    The following options should be selected for regulatory 
applications:
    Set the regulatory ``default option'' (IOPT(25)=l) to automatically 
select stack tip downwash, final plume rise, buoyancy-induced dispersion 
(BID), the new treatment for calms, and the appropriate wind profile 
exponents, and the appropriate value for pollutant half-life.

                          b. Input Requirements

    Source data: Location, emission rate, physical stack height, stack 
gas exit velocity, stack inside diameter, stack gas temperature, and 
optional ground level elevation.
    Meteorological data: hourly surface weather data from the 
preprocessor program RAMMET which provides hourly stability class, wind 
direction, wind speed, temperature, and mixing height. Actual anemometer 
height (a single value) is also required.
    Receptor data: coordinates and optional ground elevation for each 
receptor.

                                c. Output

    Printed output includes:
    One to 24-hour and annual average concentrations at each receptor;
    Highest through fifth highest concentrations at each receptor for 
period, with the highest and high, second-high values flagged; and
    Limited source contribution table.

                            d. Type of Model

    MPTER is a Gaussian plume model.

                           e. Pollutant Types

    MPTER may be used to model primary pollutants. Settling and 
deposition are not treated.

                     f. Source-Receptor Relationship

    MPTER applies user-specified locations of point sources and 
receptors.
    User input stack height and source characteristics for each source 
are used.
    User input topographic elevation for each receptor is used.

                            g. Plume Behavior

    MPTER uses Briggs (1969, 1971, 1975) plume rise equations for final 
rise. Stack tip downwash equation from Briggs (1974) is used.
    For rolling terrain (terrain not above stack height), plume 
centerline is horizontal at height of final rise above the source.
    Fumigation and building downwash are not treated.

                           h. Horizontal Winds

    Constant, uniform (steady-state) wind is assumed for an hour.
    Straight line plume transport is assumed to all downwind distances.
    Separate wind speed profile exponents (EPA, 1980) for both rural and 
urban cases are used.

                         i. Vertical Wind Speed

    Vertical speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Rural dispersion coefficients from Turner (1969) are used with no 
adjustments made for variations in surface roughness or averaging times.
    Urban dispersion coefficients from Briggs (Gifford, 1976) are used. 
Buoyancy-induced dispersion (Pasquill, 1976) is included.
    Six stability classes are used.

                         k. Vertical Dispersion

    Rural dispersion coefficients from Turner (1969) are used, with no 
adjustments made for variations in surface roughness.
    Urban dispersion coefficients from Briggs (Gifford, 1976) are used.
    Buoyancy-induced dispersion (Pasquill, 1976) is included.
    Six stability classes are used.
    Mixing height is accounted for with multiple reflections until the 
vertical plume standard deviation equals 1.6 times the mixing height; 
uniform vertical mixing is assumed beyond that point.
    Perfect reflection is assumed at the ground.

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Half-
life is input by the user.

                           m. Physical Removal

    Physical removal is not explicitly treated.

                          n. Evaluation Studies

    No specific studies for MPTER because regulatory editions of CRSTER 
and MPTER are equivalent. Studies for CRSTER are relevant to MPTER as 
well (See page A-32).

                    A.7  Single Source (CRSTER) Model

                                Reference

    Environmental Protection Agency, 1977. User's Manual for Single 
Source (CRSTER) Model. EPA Publication No. EPA-450/277-013.

[[Page 1005]]

U.S. Environmental Protection Agency, Research Triangle Park, NC. (NTIS 
No. PB 271360)
    Catalano, J.A., 1986. Single Source (CRSTER) Model. Addendum to the 
User's Manual. U.S. Environmental Protection Agency, Research Triangle 
Park, NC 27711. (Distributed as part of UNAMAP, Version 6, 
Documentation)

                              Availability

    This model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161, Phone: (703) 487-4650.

                                Abstract

    CRSTER is a steady state, Gaussian dispersion model designed to 
calculate concentrations from point sources at a single location in 
either a rural or urban setting. Highest and high-second high 
concentrations are calculated at each receptor for 1-hour, 3-hour, 24-
hour, and annual averaging time.

                  a. Recommendations for Regulatory Use

    CRSTER is appropriate for the following applications:
    Single point sources;
    Rural or urban areas;
    Transport distances less than 50 kilometers; and
    Flat or rolling terrain (no terrain above stack height).
    The following options should be selected for regulatory 
applications:
    Set the regulatory ``default option'' which automatically selects 
stack tip downwash, final plume rise, buoyancy-induced dispersion (BID), 
the new treatment for calms, and the appropriate wind profile exponents, 
and the appropriate value for pollutant half-life.

                          b. Input Requirements

    Source data: Emission rate, physical stack height, stack gas exit 
velocity, stack inside diameter, and stack gas temperature.
    Meteorological data: Hourly surface weather data from the 
preprocessor program RAMMET. Preprocessor output includes hourly 
stability class wind direction, wind speed, temperature, and mixing 
height. Actual anemometer height (a single value) is also required.
    Receptor data: Require distance of each of the five receptor rings.

                                c. Output

    Printed output includes:
    Highest and second highest concentrations for the year at each 
receptor for averaging times of 1-, 3-, and 24 hours, plus a user-
selected averaging time which may be 2, 4, 6, 8, or 12 hours;
    Annual arithmetic average at each receptor;
    For each day, the highest l-hour and 24-hour concentrations over the 
receptor field; and
    Option for source contributions to concentrations at selected 
receptors.

                            d. Type of Model

    CRSTER is a Gaussian plume model.

                           e. Pollutant Types

    CRSTER may be used to model primary pollutants. Settling and 
deposition are not treated.

                     f. Source-Receptor Relationship

    CRSTER treats up to 19 point sources, no area sources.
    All point sources are assumed collocated.
    User input stack height is used for each source.
    User input topographic elevation is used for each receptor, but must 
be below top of stack or program will terminate execution.
    Receptors are assumed at ground level.

                            g. Plume Behavior

    CRSTER uses Briggs (1969, 1971, 1972) plume rise equations for final 
rise.
    Stack tip downwash equation from Briggs (1974) is used.
    For rolling terrain (terrain not above stack height), plume 
centerline is horizontal at height of final rise above the source.
    Fumigation and building downwash are not treated.

                           h. Horizontal Winds

    Constant, uniform (steady-state) wind is assumed for an hour.
    Straight line plume transport is assumed to all downwind distances.
    Separate set of wind speed profile exponents (EPA, 1980) for both 
rural and urban cases are used.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Rural dispersion coefficients from Turner (1969) are used in CRSTER 
with no adjustments made for variations in surface roughness or 
averaging times.
    Urban dispersion coefficients from Briggs (Gifford, 1976) are used. 
Buoyancy-induced dispersion (Pasquill, 1976) is included.
    1Six stability classes are used.

                         k. Vertical Dispersion

    Rural dispersion coefficients from Turner (1969) are used with no 
adjustments made for surface roughness.

[[Page 1006]]

    Urban dispersion coefficients from Briggs (Gifford, 1975) are used. 
Buoyancy-induced dispersion (Pasquill, 1976) is included.
    Six stability classes are used.
    Mixing height is accounted for with multiple reflections until the 
vertical plume standard deviation equals 1.6 times the mixing height; 
uniform mixing is assumed beyond that point.
    Perfect reflection is assumed at the ground.

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Half-
life is input by the user.

                           m. Physical Removal

    Physical removal is not explicitly treated.

                          n. Evaluation Studies

    Klug, W., 1974. Dispersion from Tall Stacks. Fifth NATO/CCMS 
International Technical Meeting on Air Pollution Modeling, Denmark.
    Londergan, R. J., N. E. Bowne, D. R. Murray, H. Borenstein, and J. 
Mangano, 1980. An Evaluation of Short-Term Air Quality Models Using 
Tracer Study Data, Report No. 4333. American Petroleum Institute, 
Washington, DC.
    Mills, M. T., R. Caiazza, D. D. Hergert, and D. A. Lynn, 1981. 
Evaluation of Point Source Dispersion Models. EPA Publication No. EPA-
450/4-81-032. U.S. Environmental Protection Agency, Research Triangle 
Park, NC.
    Mills, M. T., and F. A. Record, 1975. Comprehensive Analysis of Time 
Concentration Relationships and the Validation of a Single Source 
Dispersion Model. EPA Publication No. EPA-450/3-75-083. U.S. 
Environmental Protection Agency, Research Triangle Park, NC.
    Mills, M. T., and R. W. Stern, 1975. Model Validation and Time-
Concentration Analysis of Three Power Plants. EPA Publication No. EPA-
450/376-002. U.S. Environmental Protection Agency, Research Triangle 
Park, NC.
    Londergan, R., D. Minott, D. Wackter, T. Kincaid, and B. Bonitata, 
1983. Evaluation of Rural Air Quality Simulation Models. EPA Publication 
No. EPA-450/4-83-033. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.
    TRC-Environmental Consultants, Inc., 1983. Overview, Results, and 
Conclusions for the EPRI Plume Model Validation and Development Project: 
Plains Site, EPRI EA-3074. Electric Power Research Institute, Palo Alto, 
CA.

                     A.8  Urban Airshed Model (UAM)

                               References

    Environmental Protection Agency, 1990. User's Guide for the Urban 
Airshed odel, Volumes I-VIII. EPA Publication Nos. EPA-450/4-90-007a-c, 
d(R), e-g; EPA-454/B-93-004, respectively. U.S. Environmental Protection 
Agency, Research Triangle Park, NC (NTIS Nos. PB 91-131227, PB 91-
131235, PB 91-131243, PB 93-122380, PB 91-131268, PB 92-145382, and PB 
92-224849, respectively, for Vols. I-VII).

                              Availability

    The model code is available on the Support Center for Regulatory Air 
Models Bulletin Board System and also from the National Technical 
Information Service (see page A-1).

                                Abstract

    UAM is an urban scale, three dimensional, grid type numerical 
simulation model. The model incorporates a condensed photochemical 
kinetics mechanism for urban atmospheres. The UAM is designed for 
computing ozone (O3) concentrations under short-term, episodic 
conditions lasting one or two days resulting from emissions of oxides of 
nitrogen (NOX), volatile organic compounds (VOC), and carbon 
monoxide (CO). The model treats urban VOC emissions as their carbon-bond 
surrogates.

                  a. Recommendations for Regulatory Use

    UAM is appropriate for the following applications: Urban areas 
having significant ozone attainment problems and one hour averaging 
times.
    UAM has many options but no specific recommendations can be made at 
this time on all options. The reviewing agency should be consulted on 
selection of options to be used in regulatory applications.

                          b. Input Requirements

    Source data: Gridded, hourly emissions of PAR, OLE, ETH, XYL, TOL, 
ALD2, FORM, ISOR, ETOTH, MEOH, CO, NO, and NO2 for low-level 
sources. For major elevated point sources, hourly emissions, stack 
height, stack diameter, exit velocity, and exit temperature.
    Meteorological data: Hourly, gridded, divergence free, u and v wind 
components for each vertical level; hourly gridded mixing heights and 
surface temperatures; hourly exposure class; hourly vertical potential 
temperature gradient above and below the mixing height; hourly surface 
atmospheric pressure; hourly water mixing ratio; and gridded surface 
roughness lengths.
    Air quality data: Concentration of all carbon bond 4 species at the 
beginning of the simulation for each grid cell; and hourly 
concentrations of each pollutant at each level along the inflow 
boundaries and top boundary of the modeling region.
    Other data requirements are: Hourly mixed layer average, NO2 
photolysis rates; and ozone surface uptake resistance along with

[[Page 1007]]

associated gridded vegetation (scaling) factors.

                                c. Output

    Printed output includes:
     Gridded instantaneous concentration fields at user-
specified time intervals for user-specified pollutants and grid levels;
     Gridded time-average concentration fields for user-
specified time intervals, pollutants, and grid levels.

                            d. Type of Model

    UAM is a three dimensional, numerical, photochemical grid model.

                           e. Pollutant Types

    UAM may be used to model ozone (O3) formation from oxides of 
nitrogen (NOx) and volatile organic compound (VOC) emissions.

                     f. Source-Receptor Relationship

    Low-level area and point source emissions are specified within each 
surface grid cell. Emissions from major point sources are placed within 
cells aloft in accordance with calculated effective plume heights.
    Hourly average concentrations of each pollutant are calculated for 
all grid cells at each vertical level.

                            g. Plume Behavior

    Plume rise is calculated for major point sources using relationships 
recommended by Briggs (1971).

                           h. Horizontal Winds

    See Input Requirements.

                         i. Vertical Wind Speed

    Calculated at each vertical grid cell interface from the mass 
continuity relationship using the input gridded horizontal wind field.

                        j. Horizontal Dispersion

    Horizontal eddy diffusivity is set to a user specified constant 
value (nominally 50 m2/s).

                         k. Vertical Dispersion

    Vertical eddy diffusivities for unstable and neutral conditions 
calculated using relationships of Lamb et al. (1977); for stable 
conditions, the relationship of Businger and Arya (1974) is employed. 
Stability class, friction velocity, and Monin-Obukhov length determined 
using procedure of Liu et al. (1976).

                       l. Chemical Transformation

    UAM employs a simplified version of the Carbon-Bond IV Mechanism 
(CBM-IV) developed by Gery et al. (1988) employing various steady state 
approximations.

                           m. Physical Removal

    Dry deposition of ozone and other pollutant species are calculated. 
Vegetation (scaling) factors are applied to the reference surface uptake 
resistance of each species depending on land use type.

                          n. Evaluation Studies

    Builtjes, P.J.H., K.D. van der Hurt, and S.D. Reynolds, 1982. 
Evaluation of the Performance of a Photochemical Dispersion Model in 
Practical Applications, 13th International Technical Meeting on Air 
Pollution Modeling and Its Application, Ile des Embiez, France.
    Cole, H.S., D.E. Layland, G.K. Moss, and C.F. Newberry, 1983. The 
St. Louis Ozone Modeling Project. EPA Publication No. EPA-450/4-83-019. 
U.S. Environmental Protection Agency, Research Triangle Park, NC.
    Dennis, R.L., M.W. Downton, and R.S. Keil, 1983. Evaluation of 
Performance Measures for an Urban Photochemical Model. EPA Publication 
No. EPA-450/4-83-021. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.
    Haney, J.L. and T.N. Braverman, 1985. Evaluation and Application of 
the Urban Airshed Model in the Philadelphia Air Quality Control Region. 
EPA Publication No. EPA-450/4-85-003. U.S. Environmental Protection 
Agency, Research Triangle Park, NC.
    Layland, D.E. and H.S. Cole, 1983. A Review of Recent Applications 
of the SAI Urban Airshed Model. EPA Publication No. EPA-450/4-84-004. 
U.S. Environmental Protection Agency, Research Triangle Park, NC.
    Layland, D.E., S.D. Reynolds, H. Hogo and W.R. Oliver, 1983. 
Demonstration of Photochemical Grid Model Usage for Ozone Control 
Assessment. 76th Annual Meeting of the Air Pollution Control 
Association, Atlanta, GA.
    Morris, R.E. et al., 1990. Urban Airshed Model Study of Five Cities. 
EPA Publication No. EPA-450/4-90-006a-g. U.S. Environmental Protection 
Agency, Research Triangle Park, NC.
    Reynolds, S.D., H. Hogo, W.R. Oliver, L.E. Reid, 1982. Application 
of the SAI Airshed Model to the Tulsa Metropolitan Area, SAI No. 82004. 
Systems Applications, Inc., San Rafael, CA.
    Schere, K.L. and J.H. Shreffler, 1982. Final Evaluation of Urban-
Scale Photochemical Air Quality Simulation Models. EPA Publication No. 
EPA-600/3-82-094. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.
    Seigneur C., T.W. Tesche, C.E. Reid, P.M. Roth, W.R. Oliver, and 
J.C. Cassmassi, 1981. The Sensitivity of Complex Photochemical Model 
Estimates to Detail In Input Information, Appendix A--A Compilation of 
Simulation Results. EPA Publication No. EPA-450/

[[Page 1008]]

4-81-031b. U.S. Environmental Protection Agency, Research Triangle Park, 
NC.
    South Coast Air Quality Management District, 1989. Air Quality 
Management Plan--Appendix V-R (Urban Airshed Model Performance 
Evaluation). El Monte, CA.
    Stern, R. and B. Scherer, 1982. Simulation of a Photochemical Smog 
Episode in the Rhine-Ruhr Area with a Three Dimensional Grid Model. 13th 
International Technical Meeting on Air Pollution Modeling and Its 
Application, Ile des Embiez, France.
    Tesche, T. W., C. Seigneur, L. E. Reid, P. M. Roth, W. R. Oliver, 
and J. C. Cassmassi, 1981. The Sensitivity of Complex Photochemical 
Model Estimates to Detail in Input Information. EPA Publication No. EPA-
450/4-81-031a. U.S. Environmental Protection Agency, Research Triangle 
Park, NC.
    Tesche, T. W., W. R. Oliver, H. Hogo, P. Saxeena and J. L. Haney, 
1983. Volume IV--Assessment of NOx Emission Control Requirements in 
the South Coast Air Basin--Appendix A. Performance Evaluation of the 
Systems Applications Airshed Model for the 26-27 June 1974 O3 
Episode in the South Coast Air Basin, SYSAPP 83/037. Systems 
Applications, Inc., San Rafael, CA.
    Tesche, T. W., W. R. Oliver, H. Hogo, P. Saxeena and J. L. Haney, 
1983. Volume IV--Assessment of NOx Emission Control Requirements in 
the South Coast Air Basin--Appendix B. Performance Evaluation of the 
Systems Applications Airshed Model for the 7-8 November 1978 NO2 
Episode in the South Coast Air Basin, SYSAPP 83/038. Systems 
Applications, Inc., San Rafael, CA.
    Tesche, T. W, 1988. Accuracy of Ozone Air Quality Models. Journal of 
Environmental Engineering, 114(4): 739-752.

            A.9  Offshore and Coastal Dispersion Model (OCD)

                                Reference

    DiCristofaro, D. C. and S. R. Hanna, 1989. OCD: The Offshore and 
Coastal Dispersion Model, Version 4. Volume I: User's Guide, and Volume 
II: Appendices. Sigma Research Corporation, Westford, MA. (NTIS Nos. PB 
93-144384 and PB 93-144392)

                              Availability

    This model code is available on the Support Center for Regulatory 
Air Models Bulletin Board System and also from the National Technical 
Information Service (see page A-1).

                            Technical Contact

    Minerals Management Service, Attn: Mr. Dirk Herkoff, Parkway Atrium 
Building, 381 Elden Street, Herndon, VA 22070-4817, Phone: (703) 787-
1735.

                                Abstract

    OCD is a straight-line Gaussian model developed to determine the 
impact of offshore emissions from point, area or line sources on the air 
quality of coastal regions. OCD incorporates overwater plume transport 
and dispersion as well as changes that occur as the plume crosses the 
shoreline. Hourly meteorological data are needed from both offshore and 
onshore locations. These include water surface temperature, overwater 
air temperature, mixing height, and relative humidity.
    Some of the key features include platform building downwash, partial 
plume penetration into elevated inversions, direct use of turbulence 
intensities for plume dispersion, interaction with the overland internal 
boundary layer, and continuous shoreline fumigation.

                  a. Recommendations for Regulatory Use

    OCD has been recommended for use by the Minerals Management Service 
for emissions located on the Outer Continental Shelf (50 FR 12248; 28 
March 1985). OCD is applicable for overwater sources where onshore 
receptors are below the lowest source height. Where onshore receptors 
are above the lowest source height, offshore plume transport and 
dispersion may be modeled on a case-by-case basis in consultation with 
the EPA Regional Office.

                          b. Input Requirements

    Source data: Point, area or line source location, pollutant emission 
rate, building height, stack height, stack gas temperature, stack inside 
diameter, stack gas exit velocity, stack angle from vertical, elevation 
of stack base above water surface and gridded specification of the land/
water surfaces. As an option, emission rate, stack gas exit velocity and 
temperature can be varied hourly.
    Meteorological data (over water): Wind direction, wind speed, mixing 
height, relative humidity, air temperature, water surface temperature, 
vertical wind direction shear (optional), vertical temperature gradient 
(optional), turbulence intensities (optional).
    Meteorological data (over land): Wind direction, wind speed, 
temperature, stability class, mixing height.
    Receptor data: Location, height above local ground-level, ground-
level elevation above the water surface.

                                c. Output

    All input options, specification of sources, receptors and land/
water map including locations of sources and receptors.
    Summary tables of five highest concentrations at each receptor for 
each averaging period, and average concentration for entire run period 
at each receptor.
    Optional case study printout with hourly plume and receptor 
characteristics. Optional

[[Page 1009]]

table of annual impact assessment from non-permanent activities.
    Concentration files written to disk or tape can be used by ANALYSIS 
postprocessor to produce the highest concentrations for each receptor, 
the cumulative frequency distributions for each receptor, the tabulation 
of all concentrations exceeding a given threshold, and the manipulation 
of hourly concentration files.

                            d. Type of Model

    OCD is a Gaussian plume model constructed on the framework of the 
MPTER model.

                           e. Pollutant Types

    OCD may be used to model primary pollutants. Settling and deposition 
are not treated.

                     f. Source-Receptor Relationship

    Up to 250 point sources, 5 area sources, or 1 line source and 180 
receptors may be used.
    Receptors and sources are allowed at any location.
    The coastal configuration is determined by a grid of up to 3600 
rectangles. Each element of the grid is designated as either land or 
water to identify the coastline.

                            g. Plume Behavior

    As in MPTER, the basic plume rise algorithms are based on Briggs' 
recommendations.
    Momentum rise includes consideration of the stack angle from the 
vertical.
    The effect of drilling platforms, ships, or any overwater 
obstructions near the source are used to decrease plume rise using a 
revised platform downwash algorithm based on laboratory experiments.
    Partial plume penetration of elevated inversions is included using 
the suggestions of Briggs (1975) and Weil and Brower (1984).
    Continuous shoreline fumigation is parameterized using the Turner 
method where complete vertical mixing through the thermal internal 
boundary layer (TIBL) occurs as soon as the plume intercepts the TIBL.

                           h. Horizontal Winds

    Constant, uniform wind is assumed for each hour.
    Overwater wind speed can be estimated from overland wind speed using 
relationship of Hsu (1981).
    Wind speed profiles are estimated using similarity theory (Businger 
1973). Surface layer fluxes for these formulas are calculated from bulk 
aerodynamic methods.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Lateral turbulence intensity is recommended as a direct estimate of 
horizontal dispersion. If lateral turbulence intensity is not available, 
it is estimated from boundary layer theory. For wind speeds less than 8 
m/s, lateral turbulence intensity is assumed inversely proportional to 
wind speed.
    Horizontal dispersion may be enhanced because of obstructions near 
the source. A virtual source technique is used to simulate the initial 
plume dilution due to downwash.
    Formulas recommended by Pasquill (1976) are used to calculate 
buoyant plume enhancement and wind direction shear enhancement.
    At the water/land interface, the change to overland dispersion rates 
is modeled using a virtual source. The overland dispersion rates can be 
calculated from either lateral turbulence intensity or Pasquill-Gifford 
curves. The change is implemented where the plume intercepts the rising 
internal boundary layer.

                         k. Vertical Dispersion

    Observed vertical turbulence intensity is not recommended as a 
direct estimate of vertical dispersion. Turbulence intensity should be 
estimated from boundary layer theory as default in the model. For very 
stable conditions, vertical dispersion is also a function of lapse rate.
    Vertical dispersion may be enhanced because of obstructions near the 
source. A virtual source technique is used to simulate the initial plume 
dilution due to downwash.
    Formulas recommended by Pasquill (1976) are used to calculate 
buoyant plume enhancement.
    At the water/land interface, the change to overland dispersion rates 
is modeled using a virtual source. The overland dispersion rates can be 
calculated from either vertical turbulence intensity or the Pasquill-
Gifford coefficients. The change is implemented where the plume 
intercepts the rising internal boundary layer.

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. 
Different rates can be specified by month and by day or night.

                           m. Physical Removal

    Physical removal is also treated using exponential decay.

                          n. Evaluation Studies

    DiCristofaro, D. C. and S. R. Hanna, 1989. OCD: The Offshore and 
Coastal Dispersion Model. Volume I: User's Guide. Sigma Research 
Corporation, Westford, MA.
    Hanna, S. R. and D. C. DiCristofaro, 1988. Development and 
Evaluation of the OCD/API

[[Page 1010]]

Model. Final Report, API Pub. 4461, American Petroleum Institute, 
Washington, DC.
    Hanna, S. R., L. L. Schulman, R. J. Paine and J. E. Pleim, 1984. The 
Offshore and Coastal Dispersion (OCD) Model User's Guide, Revised. OCS 
Study, MMS 84-0069. Environmental Research & Technology, Inc., Concord, 
MA. (NTIS No. PB 86-159803)
    Hanna, S. R., L. L. Schulman, R. J. Paine, J. E. Pleim and M. Baer, 
1985. Development and Evaluation of the Offshore and Coastal Dispersion 
(OCD) Model. Journal of the Air Pollution Control Association, 35: 1039-
1047.

          A.10  EMISSIONS AND DISPERSION MODELING SYSTEM (EDMS)

                                Reference

    Segal, H. M., 1991. ``EDMS--Microcomputer Pollution Model for 
Civilian Airports and Air Force Bases: User's Guide.'' FAA Report No. 
FAA-EE-91-3; USAF Report No. ESL-TR-91-31, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591. 
(NTIS No. ADA 240528)
    Segal, H. M., and Hamilton, P. L., 1988. ``A Microcomputer Pollution 
Model for Civilian Airports and Air Force Bases--Model Description.'' 
FAA Report No. FAA-EE-88-4; USAF Report No. ESL-TR-88-53, Federal 
Aviation Administration, 800 Independence Avenue, SW., Washington, DC 
20591. (NTIS No. ADA 199003)
    Segal, H. M., 1988. ``A Microcomputer Pollution Model for Civilian 
Airports and Air Force Bases--Model Application and Background.'' FAA 
Report No. FAA-EE-88-5; USAF Report No. ESL-TR-88-55, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591. 
(NTIS No. ADA 199794)

                              Availability

    EDMS is available for $40 from the address listed below: Federal 
Aviation Administration, Attn: Mr. Howard Segal, AEE-120, 800 
Independence Avenue, SW., Washington, DC 20591, Phone: (202) 267-3494.

                                Abstract

    EDMS is a combined emissions/dispersion model for assessing 
pollution at civilian airports and military air bases. This model, which 
was jointly developed by the Federal Aviation Administration (FAA) and 
the United States Air Force (USAF), produces an emission inventory of 
all airport sources and calculates concentrations produced by these 
sources at specified receptors. The system stores emission factors for 
fixed sources such as fuel storage tanks and incinerators and also for 
mobile sources such as automobiles or aircraft. EDMS incorporates an 
emissions model to calculate an emission inventory for each airport 
source and a dispersion model, the Graphical Input Microcomputer Model 
(GIMM), (Segal, 1983) to calculate pollutant concentrations produced by 
these sources at specified receptors. The GIMM, which processes point, 
area, and line sources, also incorporates a special meteorological 
preprocessor for processing up to one year of National Climatic Data 
Center (NCDC) hourly data. The model operates in both a screening and 
refined mode, accepting up to 170 sources and 10 receptors.

                  a. Recommendations for Regulatory Use

    EDMS is appropriate for the following applications:
     Cumulative effect of changes in aircraft operations, point 
source and mobile source emissions at airports or air bases;
     simple terrain;
     transport distances less than 50 kilometers; and
     1-hour to annual averaging times.

                          b. Input Requirements

    All data are entered through a ``runtime'' version of the Condor 
data base which is an integral part of EDMS. Typical entry items are 
source and receptor coordinates, percent cold starts, vehicles per hour, 
etc. Some point sources, such as heating plants, require stack height, 
stack diameter, and effluent temperature inputs.
    Wind speed, wind direction, hourly temperature, and Pasquill-Gifford 
stability category (P-G) are the meteorological inputs. They can be 
entered manually through the EDMS data entry screens or automatically 
through the processing of previously loaded NCDC hourly data.

                                c. Output

    Printed outputs consist of:
     A monthly and yearly emission inventory report for each 
source entered; and
     A concentration summing report for up to 8760 hours (one 
year) of data.

                            d. Type of Model

    For its emissions inventory calculations, EDMS uses algorithms 
consistent with the EPA Compilation of Air Pollutant Emission Factors, 
AP-42. For its dispersion calculations, EDMS uses the GIMM model which 
is described in reports FAA-EE-88-4 and FAA-EE-88-5, referenced above. 
GIMM uses a Gaussian plume algorithm.

                           e. Pollutant Types

    EDMS inventories and calculates the dispersion of carbon monoxide, 
nitrogen oxides, sulphur oxides, hydrocarbons, and suspended particles.

                     f. Source-Receptor Relationship

    Up to 170 sources and 10 receptors can be treated simultaneously. 
Area sources are

[[Page 1011]]

treated as a series of lines that are positioned perpendicular to the 
wind.
    Line sources (roadways, runways) are modeled as a series of points. 
Terrain elevation differences between sources and receptors are 
neglected.
    Receptors are assumed to be at ground level.

                            g. Plume Behavior

    Plume rise is calculated for all point sources (heating plants, 
incinerators, etc.) using Briggs plume rise equations (Catalano, 1986; 
Briggs, 1969; Briggs, 1971; Briggs, 1972).
    Building and stack tip downwash effects are not treated.
    Roadway dispersion employs a modification to the Gaussian plume 
algorithms as suggested by Rao and Keenan (1980) to account for close-in 
vehicle-induced turbulence.

                           h. Horizontal Winds

    Steady state winds are assumed for each hour. Winds are assumed to 
be constant with altitude.
    Winds are entered manually by the user or automatically by reading 
previously loaded NCC annual data files.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed to be zero.

                        j. Horizontal Dispersion

    Four stability classes are used (P-G classes B through E).
    Horizontal dispersion coefficients are computed using a table lookup 
and linear interpolation scheme. Coefficients are based on Pasquill 
(1976) as adapted by Petersen (1980).
    A modified coefficient table is used to account for traffic-enhanced 
turbulence near roadways. Coefficients are based upon data included in 
Rao and Keenan (1980).

                         k. Vertical Dispersion

    Four stability classes are used (P-G classes B through E).
    Vertical dispersion coefficients are computed using a table lookup 
and linear interpolation scheme. Coefficients are based on Pasquill 
(1976) as adapted by Petersen (1980).
    A modified coefficient table is used to account for traffic-enhanced 
turbulence near roadways. Coefficients are based upon data from Rao and 
Keenan (1980).

                       l. Chemical Transformation

    Chemical transformations are not accounted for.

                           m. Physical Removal

    Deposition is not treated.

                          n. Evaluation Studies

    Segal, H. M. and P. L. Hamilton, 1988. A Microcomputer Pollution 
Model for Civilian Airports and Air Force Bases--Model Description. FAA 
Report No. FAA-EE-88-4; USAF Report No. ESL-TR-88-53, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591.
    Segal, H. M., 1988. A Microcomputer Pollution Model for Civilian 
Airports and Air Force Bases--Model Application and Background. FAA 
Report No. FAA-EE-88-5; USAF Report No. ESL-TR-88-55, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591.

  A.11  Complex Terrain Dispersion Model Plus Algorithms for Unstable 
                          Situations (CTDMPLUS)

                                Reference

    Perry, S. G., D. J. Burns, L. H. Adams, R. J. Paine, M. G. Dennis, 
M. T. Mills, D. G. Strimaitis, R. J. Yamartino and E. M. Insley, 1989. 
User's Guide to the Complex Terrain Dispersion Model Plus Algorithms for 
Unstable Situations (CTDMPLUS). Volume 1: Model Descriptions and User 
Instructions. EPA Publication No. EPA-600/8-89-041. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS No. PB 89-181424)
    Paine, R. J., D. G. Strimaitis, M. G. Dennis, R. J. Yamartino, M. T. 
Mills and E. M. Insley, 1987. User's Guide to the Complex Terrain 
Dispersion Model, Volume 1. EPA Publication No. EPA-600/8-87-058a. U.S. 
Environmental Protection Agency, Research Triangle Park, NC. (NTIS No. 
PB 88-162169)

                              Availability

    This model code is available on the Support Center for Regulatory 
Air Models Bulletin Board System and also from the National Technical 
Information Service (See page A-1).

                                Abstract

    CTDMPLUS is a refined point source Gaussian air quality model for 
use in all stability conditions for complex terrain applications. It 
contains, in its entirety, the technology of CTDM for stable and neutral 
conditions. However, CTDMPLUS can also simulate daytime, unstable 
conditions, and has a number of additional capabilities for improved 
user friendliness. Its use of meteorological data and terrain 
information is different from other EPA models; considerable detail for 
both types of input data is required and is supplied by preprocessors 
specifically designed for CTDMPLUS. CTDMPLUS requires the 
parameterization of individual hill shapes using the terrain 
preprocessor and the association of each model receptor with a 
particular hill.

[[Page 1012]]

                  a. Recommendation for Regulatory Use

    CTDMPLUS is appropriate for the following applications:
     Elevated point sources;
     Terrain elevations above stack top;
     Rural or urban areas;
     Transport distances less than 50 kilometers; and
     One hour to annual averaging times when used with a post-
processor program such as CHAVG.

                          b. Input Requirements

    Source data: For each source, user supplies source location, height, 
stack diameter, stack exit velocity, stack exit temperature, and 
emission rate; if variable emissions are appropriate, the user supplies 
hourly values for emission rate, stack exit velocity, and stack exit 
temperature.
    Meteorological data: The user must supply hourly averaged values of 
wind, temperature and turbulence data for creation of the basic 
meteorological data file (``PROFILE''). Meteorological preprocessors 
then create a SURFACE data file (hourly values of mixed layer heights, 
surface friction velocity, Monin-Obukhov length and surface roughness 
length) and a RAWINsonde data file (upper air measurements of pressure, 
temperature, wind direction, and wind speed).
    Receptor data: Receptor names (up to 400) and coordinates, and hill 
number (each receptor must have a hill number assigned).
    Terrain data: User inputs digitized contour information to the 
terrain preprocessor which creates the TERRAIN data file (for up to 25 
hills).

                                c. Output

    When CTDMPLUS is run, it produces a concentration file, in either 
binary or text format (user's choice), and a list file containing a 
verification of model inputs, i.e.,
     Input meteorological data from ``SURFACE'' and ``PROFILE''
     Stack data for each source
     Terrain information
     Receptor information
     Source-receptor location (line printer map).
    In addition, if the case-study option is selected, the listing 
includes:
      Meteorological variables at plume height
      Geometrical relationships between the source and the hill
      Plume characteristics at each receptor, i.e.,
     distance in along-flow and cross flow direction.
     effective plume-receptor height difference.
     effective y & z values, both 
flat terrain and hill induced (the difference shows the effect of the 
hill).
     concentration components due to WRAP, LIFT and FLAT.
    If the user selects the TOPN option, a summary table of the top 4 
concentrations at each receptor is given. If the ISOR option is 
selected, a source contribution table for every hour will be printed.
    A separate disk file of predicted (1-hour only) concentrations 
(``CONC'') is written if the user chooses this option. Three forms of 
output are possible:
    (1) A binary file of concentrations, one value for each receptor in 
the hourly sequence as run;
    (2) A text file of concentrations, one value for each receptor in 
the hourly sequence as run; or
    (3) A text file as described above, but with a listing of receptor 
information (names, positions, hill number) at the beginning of the 
file.
    Hourly information provided to these files besides the 
concentrations themselves includes the year, month, day, and hour 
information as well as the receptor number with the highest 
concentration.

                            d. Type of Model

    CTDMPLUS is a refined steady-state, point source plume model for use 
in all stability conditions for complex terrain applications.

                           e. Pollutant Types

    CTDMPLUS may be used to model non-reactive, primary pollutants.

                     f. Source-Receptor Relationship

    Up to 40 point sources, 400 receptors and 25 hills may be used. 
Receptors and sources are allowed at any location. Hill slopes are 
assumed not to exceed 15 deg., so that the linearized equation of motion 
for Bouissinesq flow are applicable. Receptors upwind of the impingement 
point, or those associated with any of the hills in the modeling domain, 
require separate treatment.

                            g. Plume Behavior

    As in CTDM, the basic plume rise algorithms are based on Briggs' 
(1975) recommendations.
    A central feature of CTDMPLUS for neutral/stable conditions is its 
use of a critical dividing-streamline height (Hc) to separate the 
flow in the vicinity of a hill into two separate layers. The plume 
component in the upper layer has sufficient kinetic energy to pass over 
the top of the hill while streamlines in the lower portion are 
constrained to flow in a horizontal plane around the hill. Two separate 
components of CTDMPLUS compute ground-level concentrations resulting 
from plume material in each of these flows.
    The model calculates on an hourly (or appropriate steady averaging 
period) basis how

[[Page 1013]]

the plume trajectory (and, in stable/neutral conditions, the shape) is 
deformed by each hill. Hourly profiles of wind and temperature 
measurements are used by CTDMPLUS to compute plume rise, plume 
penetration (a formulation is included to handle penetration into 
elevated stable layers, based on Briggs (1984)), convective scaling 
parameters, the value of Hc, and the Froude number above Hc.

                           h. Horizontal Winds

    CTDMPLUS does not simulate calm meteorological conditions. Both 
scalar and vector wind speed observations can be read by the model. If 
vector wind speed is unavailable, it is calculated from the scalar wind 
speed. The assignment of wind speed (either vector or scalar) at plume 
height is done by either:
     Interpolating between observations above and below the 
plume height, or
     Extrapolating (within the surface layer) from the nearest 
measurement height to the plume height.

                         i. Vertical Wind Speed

    Vertical flow is treated for the plume component above the critical 
dividing streamline height (Hc); see ``Plume Behavior''.

                        j. Horizontal Dispersion

    Horizontal dispersion for stable/neutral conditions is related to 
the turbulence velocity scale for lateral fluctuations, v, 
for which a minimum value of 0.2 m/s is used. Convective scaling 
formulations are used to estimate horizontal dispersion for unstable 
conditions.

                         k. Vertical Dispersion

    Direct estimates of vertical dispersion for stable/neutral 
conditions are based on observed vertical turbulence intensity, e.g., 
w (standard deviation of the vertical velocity 
fluctuation). In simulating unstable (convective) conditions, CTDMPLUS 
relies on a skewed, bi-Gaussian probability density function (PDF) 
description of the vertical velocities to estimate the vertical 
distribution of pollutant concentration.

                       l. Chemical Transformation

    Chemical transformation is not treated by CTDMPLUS.

                           m. Physical Removal

    Physical removal is not treated by CTDMPLUS (complete reflection at 
the ground/hill surface is assumed).

                          n. Evaluation Studies

    Burns, D. J., L. H. Adams and S. G. Perry, 1990. Testing and 
Evaluation of the CTDMPLUS Dispersion Model: Daytime Convective 
Conditions. Environmental Protection Agency, Research Triangle Park, NC.
    Paumier, J. O., S. G. Perry and D. J. Burns, 1990. An Analysis of 
CTDMPLUS Model Predictions with the Lovett Power Plant Data Base. 
Environmental Protection Agency, Research Triangle Park, NC.
    Paumier, J. O., S. G. Perry and D. J. Burns, 1992. CTDMPLUS: A 
Dispersion Model for Sources near Complex Topography. Part II: 
Performance Characteristics. Journal of Applied Meteorology, 31(7): 646-
660.

                            A. REF References

    Benson, P. E., 1979. CALINE3--A Versatile Dispersion Model for 
Predicting Air Pollution Levels Near Highways and Arterial Streets. 
Interim Report, Report Number FHWA/CA/TL-79/23. Federal Highway 
Administration, Washington, D.C.
    Briggs, G. A., 1969. Plume Rise. U.S. Atomic Energy Commission 
Critical Review Series, Oak Ridge National Laboratory, Oak Ridge, TN. 
(NTIS No. TID-25075)
    Briggs, G. A., 1971. Some Recent Analyses of Plume Rise 
Observations. Proceedings of the Second International Clean Air 
Congress, edited by H. M. Englund and W. T. Berry. Academic Press, New 
York, NY.
    Briggs, G. A., 1974. Diffusion Estimation for Small Emissions. USAEC 
Report ATDL-106. U.S. Atomic Energy Commission, Oak Ridge, TN.
    Bjorklund, J. R., and J. F. Bowers, 1982. User's Instructions for 
the SHORTZ and LONGZ Computer Programs. EPA Publication No. EPA-903/9-
82-004a and b. U.S. Environmental Protection Agency, Region III, 
Philadelphia, PA.
    Businger, J. A., and S. P. Arya, 1974. Height of the Mixed Layer in 
the Stably Stratified Planetary Boundary Layer. Advances in Geophysics, 
Vol. 18A, F. N. Frankiel and R. E. Munn (Eds.), Academic Press, New 
York, NY.
    Environmental Protection Agency, 1980. Recommendations on Modeling 
(October 1980 Meetings). Appendix G to: Summary of Comments and 
Responses on the October 1980 Proposed Revisions to the Guideline on Air 
Quality Models. Meteorology and Assessment Division, Office of Research 
and Development, Research Triangle Park, NC.
    Gifford, F. A., Jr. 1976. Turbulent Diffusion Typing Schemes--A 
Review. Nuclear Safety, 17: 68-86.
    Huber, A. H. and W. H. Snyder, 1976. Building Wake Effects on Short 
Stack Effluents. Third Symposium on Atmospheric Turbulence, Diffusion 
and Air Quality, American Meteorological Society, Boston, MA.
    Irwin, J. S., 1979. A Theoretical Variation of the Wind Profile 
Power-Law Exponent as a Function of Surface Roughness and Stability. 
Atmospheric Environment, 13: 191-194.

[[Page 1014]]

    Lamb, R. G. et al., 1977. Continued Research in Mesoscale Air 
Pollution Simulation Modeling--Vol. VI: Further Studies in the Modeling 
of Microscale Phenomena, Report Number EF77-143. Systems Applications, 
Inc., San Rafael, CA.
    Larsen, R. I., 1971. A Mathematical Model for Relating Air Quality 
Measurements to Air Quality Standards. Office of Air Programs 
Publication No. AP-89. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.
    Liu, M. K. et al., 1976. The Chemistry, Dispersion, and Transport of 
Air Pollutants Emitted from Fossil Fuel Power Plants in California: Data 
Analysis and Emission Impact Model. Systems Applications, Inc., San 
Rafael, CA.
    McElroy, J. L. and F. Pooler, Jr., 1968. St. Louis Dispersion Study 
Volume II-Analysis. NAPCA Publication No. AP-53. U.S. Environmental 
Protection Agency, Research Triangle Park, NC.
    Moore, G. E., T. E. Stoeckenius and D. A. Stewart, 1982. A Survey of 
Statistical Measures of Model Performance and Accuracy for Several Air 
Quality Model. EPA Publication No. EPA-450/4-83-001. U.S. Environmental 
Protection Agency, Research Triangle Park, NC.
    Pasquill, F., 1976. Atmospheric Dispersion Parameters in Gaussian 
Plume Modeling Part II. Possible Requirements for Change in the Turner 
Workbook Values. EPA Publication No. EPA-600/4-76-030b. U.S. 
Environmental Protection Agency, Research Triangle Park, NC.
    Turner, D. B., 1969. Workbook of Atmospheric Dispersion Estimates. 
PHS Publication No. 999-26. U.S. Environmental Protection Agency, 
Research Triangle Park, NC.
    Whitten, G. Z., J. P. Killus, and H. Hogo, 1980. Modeling of 
Simulated Photochemical Smog with Kinetic Mechanisms. Volume 1. Final 
Report. EPA Publication No. EPA-600/3-80-028a. U.S. Environmental 
Protection Agency, Research Triangle Park, NC.
    Briggs, G. A., 1975. Plume Rise Predictions. Lectures on Air 
Pollution and Environmental Impact Analyses. American Meteorological 
Society, Boston, MA, pp. 59-111.
    Businger, J. A., 1973. Turbulence Transfer in the Atmospheric 
Surface Layer. Workshop in Micrometeorology. American Meteorological 
Society, Boston, MA, pp. 67-100.
    Deardorff, J. W. and G. E. Willis, 1982. Ground Level Concentrations 
Due to Fumigation into an Entraining Mixing Layer. Atmospheric 
Environment, 16: 1159-1170.
    Hsu, S. A., 1981. Models for Estimating Offshore Winds from Onshore 
Meteorological Measurements. Boundary Layer Meteorology, 20:341-352.
    Schulman, L. L., S. R. Hanna, and D. W. Heinold, 1985. Evaluation of 
Proposed Downwash Modifications to the Industrial Source Complex Model. 
ERT Document P-B810-012. Prepared for American Petroleum Institute.
    Weil, J. C., and R. P. Brower, 1984. An Updated Gaussian Plume Model 
for Tall Stacks. Journal of the Air Pollution Control Association, 34: 
818-827.
    Catalano, J. A., 1986. Addendum to the User's Manual for the Single 
Source (CRSTER) Model. EPA Publication No. EPA-600/8-86-041. U.S. 
Environmental Protection Agency, Research Triangle Park, NC. (NTIS No. 
PB 87-145843)
    Gery, M. W., G. Z. Whitten and J. P. Killus, 1988. Development and 
Testing of CBM-IV for Urban and Regional Modeling. EPA Publication No. 
EPA-600/3-88-012. U.S. Environmental Protection Agency, Research 
Triangle Park, NC. (NTIS No. PB 88-180039)
    Petersen, W. B., 1980. User's Guide for HIWAY-2 A Highway Air 
Pollution Model. EPA Publication No. EPA-600/8-80-018. U.S. 
Environmental Protection Agency, Research Triangle Park, NC. (NTIS PB 
80-227556)
    Rao, T. R. and M. T. Keenan, 1980. Suggestions for Improvement of 
the EPA--HIWAY Model. Journal of the Air Pollution Control Association, 
30: 247-256 (and reprinted as appendix C in Petersen, 1980).
    Segal, H. M., 1983. Microcomputer Graphics in Atmospheric Dispersion 
Modeling. Journal of the Air Pollution Control Association, 23: 598-600.
    Horst, T. W., 1983. A Correction to the Gaussian Source-depletion 
Model. In Precipitation Scavenging, Dry Deposition and Resuspension. H. 
R. Pruppacher, R. G. Semonin, and W. G. N. Slinn, eds., Elsevier, NY.

   Appendix B to Appendix W of Part 51--Summaries of Alternative Air 
                             Quality Models

                            Table of Contents

B.0  Introduction and Availability
B.1  Air Quality Display Model (AQDM)
B.2  Air Resources Regional Pollution Assessment (ARRPA) Model
B.3  APRAC-3
B.4  COMPTER
B.5  ERT Air Quality Model (ERTAQ)--Deleted
B.6  ERT Visibility Model
B.7  Hiway-2
B.8  Integrated Model for Plumes and Atmospheric Chemistry in Complex 
Terrain (Impact)
B.9  LONGZ
B.10  Maryland Power Plant Siting Program (PPSP) Model
B.11  Mesoscale Puff Model (Mesopuff II)
B.12  Mesosale Transport Diffusion and Deposition Model for Industrial 
Sources (MTDDIS)
B.13  Models 3141 and 4141
B.14  MULTIMAX

[[Page 1015]]

B.15  Multiple Point Source Diffusion Model (MPSDM)--Deleted
B.16  Multi-Source (SCSTER) Model
B.17  Pacific Gas and Electric Plumes Model
B.18  PLMSTAR Air Quality Simulation Model
B.19  Plume Visibility Model (PLUVUE II)
B.20  Point, Area, Line Source Algorithm (PAL-DS)
B.21  Random Walk Advection and Dispersion Model (RADM)
B.22  Reactive Plume Model (RPM-II)
B.23  Regional Transport Model (RTM-II)
B.24  SHORTZ
B.25  Simple Line-Source Model (GMLINE)
B.26  Texas Climatological Model (TCM-2)
B.27  Texas Episodic Model (TEM-8)
B.28  AVACTA II
B.29  Shoreline Dispersion Model (SDM)
B.30  WYNDvalley Model
B.31  Dense Gas Dispersion Model (DEGADIS)
B.32  HGSYSTEM
B.33  SLAB
B.REF  References

                   B.0  Introduction and Availability

    This appendix summarizes key features of refined air quality models 
that may be considered on a case-by-case basis for individual regulatory 
applications. For each model, information is provided on availability, 
approximate cost in 1990, regulatory use, data input, output format and 
options, simulation of atmospheric physics and accuracy. The models are 
listed by name in alphabetical order.
    There are three separate conditions under which these models will 
normally be approved for use: First, if a demonstration can be made that 
the model produces concentration estimates equivalent to the estimates 
obtained using a preferred model (e.g., the maximum or high, second-high 
concentration is within 2% of the estimate using the comparable 
preferred model); second, if a statistical performance evaluation has 
been conducted using measured air quality data and the results of that 
evaluation indicate the model in Appendix B performs better for the 
application than a comparable model in Appendix A; and third, if there 
is no preferred model for the specific application but a refined model 
is needed to satisfy regulatory requirements. Any one of these three 
separate conditions may warrant use of these models. See section 3.2, 
Use of Alternative Models, for additional details.
    Many of these models have been subject to a performance evaluation 
by comparison with observed air quality data. A summary of such 
comparisons for models contained in this appendix is included in ``A 
Survey of Statistical Measures of Model Performance and Accuracy for 
Several Air Quality Models'', EPA-450/4-83-001. Where possible, several 
of the models contained herein have been subjected to rigorous 
evaluation exercises, including (1) statistical performance measures 
recommended by the American Meteorological Society and (2) peer 
scientific reviews.
    Any availability statement for models in this appendix that refers 
to the User's Network for Applied Modeling of Air Pollution (UNAMAP) 
should be ignored since the UNAMAP is no longer operational. However, a 
source for some of these models and user's documentation is: Computer 
Products, National Technical Information Service (NTIS), U.S. Department 
of Commerce, Springfield, VA 22161, Phone: (703) 487-4650.
    A number of the model codes and selected, abridged user's guides are 
also available from the Support Center for Regulatory Air Models 
Bulletin Board System 19 (SCRAM BBS), Telephone (919) 541-5742. The 
SCRAM BBS is an electronic bulletin board system designed to be user 
friendly and accessible from anywhere in the country. Model users with 
personal computers are encouraged to use the SCRAM BBS to download 
current model codes and text files.

                  B.1  Air Quality Display Model (AQDM)

                                Reference

    TRW Systems Group, 1969. Air Quality Display Model. Prepared for 
National Air Pollution Control Administration, DHEW. U.S. Public Health 
Service, Washington, DC (NTIS No. PB 189194)

                              Availability

    The above User's Guide is available from NTIS at a cost of $16.95. 
This model is available at no cost in the form of a punched card deck 
from: Library Services, MD-35, U.S. Environmental Protection Agency, 
Research Triangle Park, North Carolina 27711, Attn: Ann Ingram.

                                Abstract

    AQDM is a climatological steady state Gaussian plume model that 
estimates annual arithmetic average sulfur dioxide and particulate 
concentrations at ground level in urban areas. A statistical model based 
on Larsen (1971) is used to transform the average concentration data 
from a limited number of receptors into expected geometric mean and 
maximum concentration values for several different averaging times.

                  a. Recommendations for Regulatory Use

    AQDM can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. AQDM must be executed in the equivalent mode.
    AQDM can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2,

[[Page 1016]]

that AQDM is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: Average emissions rates and heights of 
emissions for point and area sources; stack gas temperature, stack gas 
exit velocity, and stack inside diameter for plume rise calculations for 
point sources.
    Meteorological data requirements are: Stability wind rose (STAR 
deck), average afternoon mixing height, average morning mixing height, 
and average air temperature.
    Receptor data requirements are: number and locations of receptors. 
If the Larsen transform option is to be used to estimate short averaging 
time concentrations, measured standard geometric deviation of 
concentrations is required.

                                c. Output

    Printed output includes:
    One month to one year average concentrations (arithmetic mean only) 
at each receptor;
    Optional arbitrary averaging time by Larsen (1971) procedure 
(typically l-24 hr); and
    Optional individual point, area source culpability list for each 
receptor.

                            d. Type of Model

    AQDM is a Gaussian plume model.

                           e. Pollutant Types

    AQDM may be used to model non-reactive pollutants. Settling and 
deposition are not treated.

                     f. Source Receptor Relationship

    AQDM applies user-specified locations and stack height for each 
point source.
    AQDM uses any location and size for each area source.
    Up to 225 receptors may be located on uniform rectangular grid.
    Up to 12 user-specified receptor locations are permitted.
    Unique release height is used for each point and area source. 
Receptors are assumed to be at ground level.
    No terrain differences between source and receptor are treated.

                            g. Plume Behavior

    AQDM uses Briggs (1969) plume rise formulas.
    No plume rise is calculated for area sources.
    Fumigation and downwash are not treated.
    Zero concentration is assumed when plume height is greater than 
mixing height.

                           h. Horizontal Winds

    Wind data are input as stability wind rose (joint frequency 
distribution) of 16 wind directions, six wind speed classes, and five 
stability classes.
    No variation in wind speed with height is assumed.
    Constant, uniform (steady-state) wind is assumed.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Pollutants are assumed evenly distributed across a 22.5 degree 
sector.
    Frequency of occurrence of a meteorological state is interpolated 
between sector center lines.
    Averaging times from 1 month to 1 year or longer are treated.

                         k. Vertical Dispersion

    Rural dispersion coefficients from Turner (1969) are used.
    Five stability classes are as defined by Turner (1964). Stability 
classes E and F are combined, and assigned dispersion values equivalent 
to stability class D.
    Neutral stability is split internally into 60% day, 40% night, with 
the two differing only in the treatment of mixing height.
    Mixing height is a function of a single input afternoon mixing 
height, a single input morning mixing height, modified by the stability 
class.

                       l. Chemical Transformations

    Not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    McNidar, R.R., 1977. Variability Analysis of Long-term Dispersion 
Models. Joint Conference on Applications of Air Pollution Meteorology, 
American Meteorology Society, 29 November-2 December, 1977, Salt Lake 
City, UT.
    Turner, D.B., J.R. Zimmerman, and A.D. Busse, 1973. An Evaluation of 
Some Climatological Dispersion Models. In Appendix E, User's Guide to 
the Climatological Dispersion Model, EPA Publication No. EPA-R4-73-024, 
Environmental Protection Agency, Research Triangle Park, NC.
    Londergan, R.J., D.H. Minott, D.J. Wachter and R.R. Fizz, 1983. 
Evaluation of Urban Air Quality Simulation Models. EPA Publication No. 
EPA-450/4-83-020. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.

[[Page 1017]]

     B.2  Air Resources Regional Pollution Assessment (ARRPA) Model

                                Reference

    Mueller, S.F., R.J. Valente, T.L. Crawford, A.L. Sparks, and L.L. 
Gautney, Jr., 1983. Description of the Air Resources Regional Pollution 
Assessment (ARRPA) Model. TVA/ONR/AQB-83/14. Tennessee Valley Authority, 
Muscle Shoals, AL.

                              Availability

    The computer code and sample input for this model on magnetic tape 
and a copy of the User's Guide are available from: Computer Services 
Development Branch, Office of Natural Resources and Economic 
Development, Tennessee Valley Authority, OSWHA, Muscle Shoals, AL 35660, 
Phone: (205) 386-2985.
    A hard copy of the model output corresponding with the sample input 
is also available. The cost of copying model information to a buyer-
supplied 2400-ft, high density tape is estimated to be about $100. The 
User's Guide is free of charge.

                                Abstract

    The ARRPA model is a medium/long-range segmented-plume model. It is 
designed to compute air concentrations and surface dry mass deposition 
of sulfur dioxide and sulfate. A unique feature of the model is its use 
of prognostic meteorological output from the National Weather Service 
Boundary Layer Model (BLM). Boundary layer conditions are computed by 
the BLM on a grid with a spatial resolution of 80km, and are archived in 
intervals of 3 hours. BLM output used by this model includes three 
dimensional wind field components and potential temperature at 10 height 
levels from the surface through 2000m above the surface.

                  a. Recommendations for Regulatory Use

    Use of the model for transport distances of less than 10km is not 
recommended. For 10km to beyond 50km, there is no specific 
recommendation at the present time. The model may be used on a case-by-
case basis.

                          b. Input Requirements

    Source data requirements: Location (latitude and longitude), stack 
height, stack diameter, stack gas exit velocity, stack gas temperature, 
SO2 emission rate, SO4= emission rate, stack base elevation.
    Meteorological data requirements: Hourly wind field components 
(u,v,w), potential temperature (), Pasquill-Gifford stability 
class and mixing height. These data are obtained as output from the BLM 
output preprocessing program called MDPP (Mueller and Valente, 1983). 
Required input to MDPP is BLM output (in three-hour intervals) of u, v, 
w, and , surface layer friction velocity (u*) and 
surface layer values of the inverse Monin-Obukhov length (L-1).
    Receptor data requirements: Gridded receptor array coordinates (x 
and y) and receptor heights (z) from a receptor preprocessing program 
called HEIGHT. HEIGHT produces a user-designed array of points which may 
be skewed up to plus-minus90 degrees relative to the model x axis. 
The elevation of each receptor is adjusted to give height above smoothed 
model terrain. Non-gridded receptors can be specified using latitude/
longitude coordinates.

                                c. Output

    Printed output includes:
    Listings of input parameters (except for meteorological data);
    Listing of hours processed and flags for missing data periods.
    Disk output: Parameters for controlling analysis and printout 
options in the postprocessing program called ANALYSIS; hourly SO2 
and SO4= air concentrations and dry deposition amounts at each 
receptor.
    Optional printed output: Two programs are available for displaying 
model output--DISPLAY and ANALYSIS; DISPLAY prints out hourly gridded 
concentration and/or deposition fields for user-specified time periods; 
ANALYSIS prints out (1) the five highest concentrations of SO2 and/
or SO4= at each receptor for 1-hour, 3-hour (optional) and 24-hour 
(optional) averaging periods, (2) average SO2 and/or SO4 
concentrations at each receptor for the entire analysis period and (3) 
gridded SO2 and/or SO4= dry deposition amounts for the day 
having the greatest dry deposition and for the entire analysis period.

                            d. Type of Model

    The ARRPA model is a Gaussian segmented-plume model.

                           e. Pollutant Types

    SO2 and SO4= are treated.

                     f. Source-Receptor Relationship

    One source is treated per model run, though results from several 
sources may be superimposed.
    Either constant or variable emission rates may be used.
    Receptors (up to 100) in gridded network may have different 
elevations. Height of receptors above ground is variable.

                            g. Plume Behavior

    Plume rise is computed in a piecewise-continuous manner through 
discrete model layers (Mueller, et al., 1983).
    Plume can be isolated from the ground (lofting).
    Plume height varies in time and space.

[[Page 1018]]

                           h. Horizontal Winds

    Hourly horizontal wind components, specified at 80km intervals 
across the model grid, are spatially interpolated and vertically 
averaged through the plume depth to get plume transport vectors. A model 
option is available that uses the wind vector near the vertical plume 
center instead of computing a vertically-averaged vector.

                         i. Vertical Wind Speed

    The mass-conserving BLM wind field used in this model provides 
vertical wind components that vary horizontally and vertically, and are 
used to adjust plume height.

                        j. Horizontal Dispersion

    Plume half-width (y) growth goes through four stages:
    (1) Growth follows Turner curves for y < 1000m;
    (2) A transition in growth behavior from Turner curves to dynamical-
statistical (Langevin) theory occurs for 1000m  
y < 6000m;
    (3) Growth is based on dynamical-statistical theory for 
y > 6000m; eddy diffusivity computed from Pasquill-Gifford 
stability class;
    (4) Growth approaches that described by Taylor's statistical theory 
(limit of dynamical-statistical theory for time much larger than the 
Lagrangian time correlation) for y > 10,000m.

                         k. Vertical Dispersion

    Plume half-depth (z) growth is based on combination of 
Brookhaven curves for elevated plumes and Turner curves for near-ground 
plumes.
    Vertical plume structure is Gaussian, with superimposed reflection 
terms, until z becomes sufficiently large that a 
vertically uniform plume assumption is appropriate.
    Maximum depth of a plume is 2000m.

                       l. Chemical Transformation

    SO2 oxidation to SO4= is treated using a first-order 
chemical reaction rate constant which is parameterized to vary hourly 
following diurnal and seasonal cycles.

                           m. Physical Removal

    Dry deposition is computed using the source depletion equation. Dry 
deposition velocities vary according to the stability of the surface 
layer.

                          n. Evaluation Studies

    Muller, S. F. and L. W. Reisinger, 1986. Evaluation of the Air 
Resources Regional Pollution Assessment (ARRPA) Model. (Report in 
Progress).

                              B.3  APRAC-3

                                Reference

    Simmon, P. B., R. M. Patterson, F. L. Ludwig, and L. B. Jones, 1981. 
The APRAC-3/Mobile 1 Emissions and Diffusion Modeling Package. EPA 
Publication No. EPA-909/9-81-002. U.S. Environmental Protection Agency, 
Region IX, San Francisco, CA. (NTIS No. PB 82-103763)

                              Availability

    This model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161, Phone: (703) 487-4650.

                                Abstract

    APRAC-3 is a model which computes hourly average carbon monoxide 
concentrations for any urban location. The model calculates 
contributions from dispersion on various scales: extraurban, mainly from 
sources upwind of the city of interest; intraurban, from freeway, 
arterial, and feeder street sources; and local, from dispersion within a 
street canyon. APRAC-3 requires an extensive traffic inventory for the 
city of interest. APRAC-3, as it exists on UNAMAP (Version 6), has been 
updated with Mobile 2 emission factors.

                  a. Recommendations for Regulatory Use

    APRAC-3 can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. APRAC-3 must be executed in the equivalent mode.
    APRAC-3 can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated using the criteria in Section 3.2, that 
APRAC-3 is more appropriate for the specific application. In this case 
the model options/mode which are most appropriate for the application 
should be used.
    Although the user's manual for APRAC-3 contains Mobile 1 emission 
factors, it is recommended that those emission factors be updated with 
the latest version of Mobile (Mobile Source Emissions Model) for use in 
regulatory applications.

                          b. Input Requirements

    Source data requirements are: Line source (traffic link) end points, 
road type and daily traffic volume.
    Meteorological data requirements are: Hourly wind direction (nearest 
10 degrees), hourly wind speed, and hourly cloud cover for stability 
calculations.
    Receptor data requirements are: Coordinates for up to 10 receptors 
for any single day and up to 8 receptors for the intersection submodel.

[[Page 1019]]

                                c. Output

    Printed ouput includes:
    Hourly calculations at each receptor.

                            d. Type of Model

    APRAC-3 is a Gaussian plume model.

                           e. Pollutant Types

    APRAC-3 may be used to model primary pollutants.

                     f. Source-Receptor Relationship

    Traffic links may have arbitrary length and orientation. Off-link 
traffic is allocated to two-mile square grids. Link traffic emissions 
are aggregated into a receptor oriented area source array.
    The boundaries of the area sources actually treated are (1) arcs at 
radial distances from the receptor which increase in geometric 
progression, (2) the sides of a 22.5 deg. sector oriented upwind for 
distances greater than 1000m, and (3) the sides of a 45 deg. sector 
oriented upwind for distances less than 1000m.
    A similar area source array is established for each receptor.
    Sources are assumed to be at ground level.
    Up to 10 receptors are accepted for any single day.
    Up to 625 receptors are accepted for a single-hour.
    Up to 8 receptors are accepted for the intersection submodel.
    Receptors are at ground level.
    Receptor locations are arbitrary.
    Four internally defined receptor locations on each user-designated 
street are used in a special street canyon sub-model.
    A box model is used to estimate contribution from upwind sources 
beyond 32km based on wind speed, mixing height, annual fuel consumption.
    In street canyon sub-model, contribution from other streets is 
included in background.

                            g. Plume Behavior

    Plume rise is not treated.
    Fumigation and downwash are not treated except in street canyon sub-
model. In street canyon sub-model, a helical circulation pattern is 
assumed.

                           h. Horizontal Winds

    User input hourly wind speed and direction in tens of degrees are 
used.
    No variation of wind speed or direction with height is assumed.
    Constant, uniform (steady-state) wind is assumed within each hour.
    The model can interpolate winds at receptors if more than one wind 
is provided.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero except in street canyon 
sub-model. Helical circulation assumed by street canyon sub-model.

                        j. Horizontal Dispersion

    Sector averaging is used with uniform distribution within sectors. 
Sector size is 22.5 degrees beyond 1km and 45.0 degrees within 1km.

                         k. Vertical Dispersion

    Six stability classes are used. Stability class is determined 
internally from user-supplied meteorological data modified from Turner 
(1964).
    Dispersion coefficients are adapted from McElroy and Pooler (1968). 
No adjustments are made for variations in surface roughness.
    Downwind distance variation of z is assumed to be 
axb for purposes of doing analytical integration.
    In street canyon sub-model, an empirical function of wind speed and 
street width and direction is used.
    Perfect reflection at the surface is assumed.
    Mixing height is ignored until concentration equals that calculated 
using box model. A box model (uniform vertical distribution) is used 
beyond that distance.

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Ludwig, F. L. and W. F. Dabberdt, 1972. Evaluation of the APRAC-lA 
Urban Dispersion Model for Carbon Dioxide, SRI Project 8563. Stanford 
Research Institute, Menlo Park, CA.

                              B.4  COMPTER

                                Reference

    State of Alabama, 1980. COMPTER Model Users Guide. Alabama 
Department of Environmental Management, Air Division, Montgomery, AL.

                              Availability

    This model is available to users for tape and reproduction charges. 
If a tape is sent, the reproduction is free. Send tape and desired 
format and specifications to: Mr. Richard E. Grusnick, Chief, Air 
Division, Alabama Department of Environmental Management, 1751 Federal 
Drive, Montgomery, AL 36109.

[[Page 1020]]

                                Abstract

    COMPTER is based on the Gaussian steady-state technique applicable 
to both urban and rural areas. The model contains the following 
attributes: (a) Determines maximum 24-hour, 3-hour, 1-hour and variable 
hour concentrations for both block and running averages; (b) elevated 
terrain considered with the standard plume-chopping technique or 
stability dependent plume path trajectory; (c) uses annual hourly 
meteorological data in the CRSTER preprocessor format; (d) uses 
Pasquill-Gifford stability curves; (e) allows for stability class 
substitution in the stable categories. Typical model use is in rural 
areas with moderate to low terrain features.

                  a. Recommendations for Regulatory Use

    COMPTER can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. COMPTER must be executed in the equivalent mode.
    COMPTER can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
COMPTER is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: Annual or hourly values of emission 
rate, exit velocity, stack gas temperature, stack height, and stack 
diameter.
    Meteorological data requirements are: Hourly surface weather data 
from the EPA meteorological preprocessor program. Preprocessor output 
includes hourly stability class wind direction, wind speed, temperature, 
and mixing height. Actual anemometer height (a single value) is 
optional.
    Receptor data requirements are: Individual receptor coordinates; or 
a location and distance from the center of five rings of receptors; or a 
combination of individual receptors and either the rectangular grid or 
the rings of receptors. Elevations of all receptors may be input.

                                c. Output

    Printed output includes:
    Highest and second highest concentrations for the year at each 
receptor for averaging times of l, 3 and 24-hours, a user-selected 
averaging time which may be 2-12 hours (variable hourly), and a 50 high 
table for l, 3, variable hourly, and 24-hours;
    Annual arithmetic average at each receptor; and the highest 1-hour 
and 24-hour concentrations over the receptor field for each day 
considered.
    Computer readable output includes:
    Hourly, 3-hourly, variable hourly, and 24-hourly concentrations for 
each receptor on magnetic storage device.

                            d. Type of Model

    COMPTER is a Gaussian plume model.

                           e. Pollutant Types

    COMPTER may be used to model primary pollutants. Settling and 
deposition are not treated.

                     f. Source-Receptor Relationship

    A maximum 50 sources and 200 receptors are treated.
    COMPTER applies user-specified locations of sources and receptors.
    User input stack height and source characteristics for each source 
are applied.
    User input topographic elevation for each receptor is applied.
    Receptors are assumed to be at ground level.

                            g. Plume Behavior

    Briggs' (1969, 1971, 1972) plume rise equations with limited mixing 
are used.
    Plume height is adjustable according to stability with use of plume 
path coefficient.

                           h. Horizontal Winds

    Constant, uniform (steady-state) wind is assumed for an hour.
    Straight line plume transport is assumed to all downwind distances.
    Power law wind profile exponents used are 0.10, 0.15, 0.20, 0.25, 
0.30, and 0.30, for stability classes A through F, respectively. 
Anemometer height is assumed to be 10 meters.

                         i. Vertical Wind Speed

    Vertical wind speeds are assumed equal to zero.

                        j. Horizontal Dispersion

    Dispersion coefficients are from Turner (1969), with no further 
adjustments made for variations in surface roughness or averaging time.
    Optionally, stability class 7 may be treated as Class 6.
    Other options for stable class substitution include changing 
stabilities F and G to E, and reducing E, F, and G to D, E, and F, 
respectively.

                         k. Vertical Dispersion

    Dispersion coefficients are from Turner (1969), with no further 
adjustments made for variations in surface roughness.
    Optionally, by source, buoyancy induced dispersion 
(H2/10) is included.
    Optionally, stability class 7 may be treated as class 6.

[[Page 1021]]

    Other options for stable class substitution include changing 
stabilities F and G to E; and reducing E, F, and G to D, E, and F, 
respectively.

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Londergan, R., D. Minott, D. Wackter, T. Kincaid and D. Bonitata, 
1983. Evaluation of Rural Air Quality Simulation Models. EPA Publication 
No. EPA-450/4-83-003. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.

              B.5  ERT Air Quality Model (ERTAQ)--[Deleted]

                        B.6  ERT Visibility Model

                               Reference:

    ENSR Consulting and Engineering, 1990. ERT Visibility Model: Version 
4; Technical Description and User's Guide. Document M2020-003. ENSR 
Consulting and Engineering, 35 Nagog Park, Acton, MA 01720.

                              Availability

    The user's guide and model code are available from the National 
Technical Information Service (see page B-1).

                                Abstract:

    The ERT Visibility Model is a Gaussian dispersion model designed to 
estimate visibility impairment for arbitrary lines of sight due to 
isolated point source emissions by simulating gas-to-particle 
conversion, dry deposition, NO to NO2 conversion and linear 
radiative transfer.

                  a. Recommendations for Regulatory Use

    There is no specific recommendation at the present time. The ERT 
Visibility Model may be used on a case-by-case basis.

                          b. Input Requirements

    Source data requirements are: Stack height, stack temperature, 
emissions of SO2, NOx, TSP, fraction of NOx as NO2, 
fraction of TSP which is carbonaceous, exit velocity, and exit radius.
    Meteorological data requirements are: Hourly ambient temperature, 
mixing depth, wind speed at stack height, stability class, potential 
temperature gradient, and wind direction.
    Receptor data requirements are: Observer coordinates with respect to 
source, latitude, longitude, time zone, date, time of day, elevation, 
relative humidity, background visual range, line-of-sight azimuth and 
elevation angle, inclination angle of the observed object, distance from 
observer to object, object and surface reflectivity, number and spacing 
of integral receptor points along line of sight.
    Other data requirements are: Ambient concentrations of O3 and 
NOx, deposition velocity of TSP, sulfate, nitrate, SO2 and 
NOx, first-order transformation rate for sulfate and nitrate.

                                c. Output

    Printed output includes both summary and detailed results as 
follows: Summary output: Page 1--site, observer and object parameters; 
page 2--optical pollutants and associated extinction coefficients; page 
3--plume model input parameters; page 4--total calculated visual range 
reduction, and each pollutant's contribution; page 5--calculated plume 
contrast, object contrast and object contrast degradation at the 550nm 
wavelength; page 6--calculated blue/red ratio and  
(U*V*W*) values for both sky and object discoloration.
    Detailed output: Phase functions for each pollutant in four 
wavelengths (400, 450, 550, 650nm), concentrations for each pollutant 
along sight path, solar geometry, contrast parameters at all 
wavelengths, intensities, tristimulus values and chromaticity 
coordinates for views of the object, sun, background sky and plume.

                            d. Type of Model

    ERT Visibility model is a Gaussian plume model for estimating 
visibility impairment.

                           e. Pollutant Types

    Optical activity of sulfate, nitrate (derived from SO2 and NOx 
emissions), primary TSP and NO2 is simulated.

                     f. Source Receptor Relationship

    Single source and hour is simulated. Unlimited number of lines-of-
sight (receptors) is permitted per model run.

                            g. Plume Behavior

    Briggs (1971) plume rise equations for final rise are used.

                        h. Horizontal Wind Field 

    A single wind speed and direction is specified for each case study. 
The wind is assumed to be spatially uniform.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion 

    Rural dispersion coefficients from Turner (1969) are used.

[[Page 1022]]

                         k. Vertical Dispersion 

    Rural dispersion coefficients from Turner (1969) are used. Mixing 
height is accounted for with multiple reflection handled by summation of 
series near the source, and Fourier representation farther downwind.

                       l. Chemical Transformation 

    First order transformations of sulfates and nitrates are used.

                          m. Physical Removal 

    Dry deposition is treated by the source depletion method.

                         n. Evaluation Studies 

    Seigneur, C., R. W. Bergstrom, and A. B. Hudischewskyj, 1982. 
Evaluation of the EPA PLUVUE Model and the ERT Visibility Model Based on 
the 1979 VISTTA Data Base, EPA Publication No. EPA-450/4-82-008. U.S. 
Environmental Protection Agency, Research Triangle Park, NC.
    White, W. H., C. Seigneur, D. W. Heinold, M. W. Eltgroth, L. W. 
Richards, P. T. Roberts, P. S. Bhardwaja, W. D. Conner and W. E. Wilson, 
Jr., 1985. Predicting the Visibility of Chimney Plumes: An Inter-
comparison of Four Models with Observations at a Well-Controlled Power 
Plant. Atmospheric Environment, 19: 515-528.

                              B.7  HIWAY-2

                                Reference

    Petersen, W.B., 1980. User's Guide for HIWAY-2. EPA Publication No. 
EPA600/8-80-018. U.S. Environmental Protection Agency, ESRL, Research 
Triangle Park, NC. (NTIS No. PB 80-227556)

                              Availability

    This model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161, Phone: (703) 487-4650.

                                Abstract

    HIWAY-2 can be used to estimate the concentrations of non-reactive 
pollutants from highway traffic. This steady-state Gaussian model can be 
applied to determine air pollution concentrations at receptor locations 
downwind of ``at-grade'' and ``cut section'' highways located in 
relatively uncomplicated terrain. The model is applicable for any wind 
direction, highway orientation, and receptor location. The model was 
developed for situations where horizontal wind flow dominates. The model 
cannot consider complex terrain or large obstructions to the flow such 
as buildings or large trees.

                  a. Recommendations for Regulatory Use

    HIWAY-2 can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. HIWAY-2 must be executed in the equivalent mode.
    HIWAY-2 can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in Section 3.2, that 
HIWAY-2 is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: A uniform emission rate by lane, 
roadway end points; height of emission; length, width, and number of 
lanes; and width of center strip.
    Meteorological data requirements are: One set at a time of hourly 
averages of wind speed, wind direction, and mixing height and the 
Pasquill-Gifford stability class. Wind speed and direction are preferred 
to be at 2 meters above ground.
    Receptor data requirements are: Coordinates of each receptor.

                                c. Output

    Printed output includes:
    One hourly average concentration at each specified receptor 
location.

                            d. Type of Model

    HIWAY-2 is a Gaussian plume model.

                           e. Pollutant Types

    HIWAY-2 may be used to model primary pollutants. Settling and 
deposition are not treated.

                     f. Source-Receptor Relationship

    HIWAY-2 applies user-specified end points for a single roadway 
segment, and user-specified receptor locations.
    Plume impact on receptor is calculated by finite difference 
integration of a point source along each lane of the roadway.

                            g. Plume Behavior

    HIWAY-2 does not treat plume rise.

                           h. Horizontal Winds

    Constant, uniform (steady-state) wind is assumed for an hour.
    Straight line plume transport is assumed to all downwind distances.
    An aerodynamic drag factor is applied when winds are parallel to the 
roadway and speeds are less than 2 m/sec.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

[[Page 1023]]

                        j. Horizontal Dispersion

    The total horizontal dispersion is that due to ambient turbulence 
plus the turbulence generated by the vehicles on the roadway.
    Beyond 300m downwind total turbulence is considered to be dominated 
by atmospheric turbulence, with plume dispersion as described by Turner 
(1969).
    Three stability classes are considered: Unstable, neutral and 
stable.

                         k. Vertical Dispersion

    The total horizontal dispersion is that due to ambient turbulence 
plus the turbulence generated by the vehicles on the roadway.
    Beyond 300m downwind total turbulence is considered to be dominated 
by atmospheric turbulence, with plume dispersion as described by Turner 
(1969).
    Mixing height is accounted for with multiple reflections until the 
vertical plume size equals 1.6 times the mixing height; uniform vertical 
mixing is assumed beyond that point.
    Three stability classes are considered: Unstable, neutral and 
stable.

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Rao, S.T., and J.R. Visalli, 1981. On the Comparative Assessment of 
the Performance of Air Quality Models. Journal of Air Pollution Control 
Association, 31: 851-860.

 B.8  Integrated Model for Plumes and Atmospheric Chemistry in Complex 
                            Terrain (IMPACT)

                                Reference

    Fabrick, Allan J. and Peter J. Haas, 1980. User Guide to IMPACT: An 
Integrated Model for Plumes and Atmospheric Chemistry in Complex 
Terrain. DCN 80-241-403-01. Radian Corporation, 8501 Mo-Pac Blvd., 
Austin, TX.

                              Availability

    A magnetic tape containing the IMPACT model, a set of test data and 
a copy of the IMPACT User's Guide are available for a cost of $500 from: 
Howard Balentine, Senior Meteorologist, Radian Corporation, Post Office 
Box 9948, Austin, TX 78766.

                                Abstract

    IMPACT is an Eulerian, three-dimensional, finite difference grid 
model designed to calculate the impact of pollutants, either inert or 
reactive, in simple or complex terrain, emitted from either point or 
area sources. It automatically treats single or multiple point or area 
sources, the effects of vertical temperature stratifications on the wind 
and diffusion fields, shear flows caused by the atmospheric boundary 
layer or by terrain effects, and chemical transformations.

                  a. Recommendations for Regulatory Use

    IMPACT can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. IMPACT must be executed in the equivalent mode.
    IMPACT can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
IMPACT is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.
    There is no specific recommendation concerning the use of IMPACT for 
photochemical applications. IMPACT may be used on a case-by-case basis.

                          b. Input Requirements

    Source data requirements are: For point sources--location (I, J), 
stack height, exit temperature, volume flow rate or stack diameter and 
exit velocity, hourly emission rates for all pollutants; for area 
sources location of corners, and hourly emission rates for each 
pollutant.
    Meteorological data requirements are: Hourly wind speed and 
direction, surface and elevated, from meteorological stations within and 
surrounding the modeling area, temperature, pressure, humidity and 
insolation (the three last variables are optional).
    Receptor data requirements are: None since concentrations are output 
for cells in the computational grid.
    Air quality data (optional): One or more vertical concentration 
profiles for each pollutant.
    Other data: 2-D array of terrain heights, 2-D array of surface 
roughness values (optional).

                                c. Output

    Printed output options include:
    Surface and elevated horizontal cross sections of pollutant 
concentrations (instantaneous, or averages over N hours where N=1, 2, 3, 
. . .);
    Horizontal cross sections of diffusivities and wind velocities; and
    Arbitrary vertical and horizontal cross sections of pollutant 
concentrations and diffusivities, and CALCOMP wind field vector plots 
are generated by the POST post-processor program.
    Computer readable output includes:
    Concentration, wind field and diffusivity data for each hour.

[[Page 1024]]

                            d. Type of Model

    IMPACT is an Eulerian finite difference model.

                           e. Pollutant Types

    IMPACT may be used to model any inert pollutant.
    IMPACT may be used to model SO2, SO4=, NOx, 
NO2, O3, hydrocarbons (depends upon chemistry mechanism 
selected).

                     f. Source-Receptor Relationship

    Up to 20 point sources and 20 area sources may be treated (greater 
number of sources may be treated by increasing common block storage 
allocation).
    Concentrations are calculated at the center of each cell in the 
grid.

                            g. Plume Behavior

    Briggs (1975) formulation for plume rise is used.
    Elevated inversions are considered.

                           h. Horizontal Winds

    A three dimensional stability and terrain dependent nondivergent 
wind field is interpolated from single or multiple wind data 
measurements using a Poisson technique.

                         i. Vertical Wind Speed

    Vertical wind speed is treated at each wind site, user specified or 
extrapolated from surface data. Interpolated is accomplished as part of 
the three dimensional wind field interpolation.

                        j. Horizontal Dispersion

    A three dimensional diffusivity field is calculated using either the 
technique of Myrup/Ranzieri or the DEPICT method (see User Guide, 
Fabrick and Haas, 1980).

                         k. Vertical Dispersion

    A three dimensional diffusivity field is calculated using either the 
technique of Myrup/Ranzieri or the DEPICT method (see User Guide, 
Fabrick and Haas, 1980).

                       l. Chemical Transformation

    Either 3-, 6-, 8- or 15-species mechanisms are currently available 
(see Use Guide). Calculations are also performed for inert pollutants.

                           m. Physical Removal

    Physical removal is treated using exponential decay. Half-life is 
input by the user.

                          n. Evaluation Studies

    Fabrick, A. J., R. Sklarew, and J. Wilson, 1977. Point Source Model 
Evaluation and Development Study. Report prepared for the California Air 
Resources Board.
    Fabrick, A. J., and P. J. Haas, 1980. Analysis of Dispersion Models 
used for Complex Terrain Simulation. Presented at the Symposium on 
Intermediate Range Transport Processes and Technology Assessment, 
Gatlinburg, TN.
    Sklarew, R., and V. Mirabella, 1979. Experience in IMPACT Modeling 
of Complex Terrain Fourth Symposium on Turbulence, Diffusion and Air 
Pollution, Reno, NV.
    Sklarew, R., J. Wilson, A. J. Fabrick and V. Mirabella, 1976. Rough 
Terrain Modeling. Presented at Geothermal Environmental Seminar '76, 
Clear Lake, CA.
    Sklarew, R., and K. Tran, 1978. The NEWEST Wind Field Model with 
Applications to Thermally Driven Drainage Wind in Mountainous Terrain. 
Presented at the AMS Meeting, Lake Tahoe, NV.
    Wackter, D., and R. Londergan, 1984. Evaluation of Complex Terrain 
Air Quality Simulation Models. EPA Publication No. EPA-450/4-84-017. 
U.S. Environmental Protection Agency, Research Triangle Park, NC.

                               B.9  LONGZ

                                Reference

    Bjorklund, J. R., and J. F. Bowers, 1982. User's Instructions for 
the SHORTZ and LONGZ Computer Programs, Volumes I and II, EPA 
Publication No. EPA-903/9-82-004. U.S. Environmental Protection Agency, 
Region III, Philadelphia, PA.

                              Availability

    The model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161, Phone: (703) 487-4650.

                                Abstract

    LONGZ utilizes the steady-state univariate Gaussian plume 
formulation for both urban and rural areas in flat or complex terrain to 
calculate long-term (seasonal and/or annual) ground-level ambient air 
concentrations attributable to emissions from up to 14,000 arbitrarily 
placed sources (stacks, buildings and area sources). The output consists 
of the total concentration at each receptor due to emissions from each 
user-specified source or group of sources, including all sources. An 
option which considers losses due to deposition (see the description of 
SHORTZ) is deemed inappropriate by the authors for complex terrain, and 
is not discussed here.

                  a. Recommendations for Regulatory Use

    LONGZ can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. LONGZ must be executed in the equivalent mode.

[[Page 1025]]

    LONGZ can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
LONGZ is more appropriate for the specific application. In this case the 
model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: For point, building or area sources, 
location, elevation, total emission rate (optionally classified by 
gravitational settling velocity) and decay coefficient; for stack 
sources, stack height, effluent temperature, effluent exit velocity, 
stack radius (inner), emission rate, and ground elevation (optional);
    For building sources, height, length and width, and orientation; for 
area sources, characteristic vertical dimension, and length, width and 
orientation.
    Meteorological data requirements are: Wind speed and measurement 
height, wind profile exponents, wind direction standard deviations 
(turbulent intensities), mixing height, air temperature, vertical 
potential temperature gradient.
    Receptor data requirements are: coordinates, ground elevation.

                                c. Output

    Printed output includes:
    Total concentration due to emissions from user-specified source 
groups, including the combined emissions from all sources (with optional 
allowance for depletion by deposition).
    d. Type of Model
    LONGZ is a climatological Gaussian plume model.

                           e. Pollutant Types

    LONGZ may be used to model primary pollutants. Settling and 
deposition are treated.

                    f. Source-Receptor Relationships

    LONGZ applies user specified locations for sources and receptors. 
Receptors are assumed to be at ground level.

                            g. Plume Behavior

    Plume rise equations of Bjorklund and Bowers (1982) are used.
    Stack tip downwash (Bjorklund and Bowers, 1982) is included.
    All plumes move horizontally and will fully intercept elevated 
terrain.
    Plumes above mixing height are ignored.
    Perfect reflection at mixing height is assumed for plumes below the 
mixing height.
    Plume rise is limited when the mean wind at stack height approaches 
or exceeds stack exit velocity.
    Perfect reflection at ground is assumed for pollutants with no 
settling velocity.
    Zero reflection at ground is assumed for pollutants with finite 
settling velocity.
    LONGZ does not simulate fumigation.
    Tilted plume is used for pollutants with settling velocity 
specified.
    Buoyancy-induced dispersion is treated (Briggs, 1972).

                           h. Horizontal Winds

    Wind field is homogeneous and steady-state.
    Wind speed profile exponents are functions of both stability class 
and wind speed. Default values are specified in Bjorklund and Bowers 
(1982).

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Pollutants are initially uniformly distributed within each wind 
direction sector. A smoothing function is then used to remove 
discontinuities at sector boundaries.

                         k. Vertical Dispersion

    Vertical dispersion is derived from input vertical turbulent 
intensities using adjustments to plume height and rate of plume growth 
with downwind distance specified in Bjorklund and Bowers (1982).

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Time 
constant is input by the user.

                           m. Physical Removal

    Gravitational settling and dry deposition of particulates are 
treated.

                          n. Evaluation Studies

    Bjorklund, J. R., and J. F. Bowers, 1982. User's Instructions for 
the SHORTZ and LONGZ Computer Programs, Volume I and II. EPA Publication 
No. EPA-903/9-82-004. U.S. Environmental Protection Agency, Region III, 
Philadelphia, PA.

         B.10  Maryland Power Plant Siting Program (PPSP) Model

                               References

    Brower, R., 1982. The Maryland Power Plant Siting Program (PPSP) Air 
Quality Model User's Guide. Ref. No. PPSP-MP-38. Prepared for Maryland 
Department of Natural Resources, by Environmental Center, Martin 
Marietta Corporation, Baltimore, MD. (NTIS No. PB 82-238387)
    Weil, J.C. and R.P. Brower, 1982. The Maryland PPSP Dispersion Model 
for Tall Stacks. Ref. No. PPSP-MP-36. Prepared for Maryland Department 
of Natural Resources, by

[[Page 1026]]

Environmental Center, Martin Marietta Corporation, Baltimore, MD. (NTIS 
No. PB 82-219155)

                              Availability

    Two reports referenced above are available from NTIS. The model code 
and test data are available on MDgnetic tape for a cost of $210 from:
Power Plant Siting Program, Department of Natural Resources, Tawes State 
Office Building, Annapolis, MD 21401, Attn: Dr. Michael Hirshfield

                                Abstract

    PPSP is a Gaussian dispersion model applicable to tall stacks in 
either rural or urban areas, but in terrain that is essentially flat (on 
a scale large compared to the ground roughness elements). The PPSP model 
follows the same general formulation and computer coding as CRSTER, also 
a Gaussian model, but it differs in four MDjor ways. The differences are 
in the scientific formulation of specific ingredients or ``sub-models'' 
to the Gaussian model, and are based on recent theoretical improvements 
as well as supporting experimental data. The differences are: (1) 
Stability during daytime is based on convective scaling instead of the 
Turner criteria; (2) Briggs' dispersion curves for elevated sources are 
used; (3) Briggs plume rise formulas for convective conditions are 
included; and (4) plume penetration of elevated stable layers is given 
by Briggs' (1984) model.

                  a. Recommendations for Regulatory Use

    PPSP can be used if it can be demonstrated to estiMDte 
concentrations equivalent to those provided by the preferred model for a 
given application. PPSP must be executed in the equivalent mode.
    PPSP can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
PPSP is more appropriate for the specific application. In this case the 
model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: Emission rate (monthly rates 
optional), physical stack height, stack gas exit velocity, stack inside 
diameter, stack gas temperature.
    Meteorological data requirements are: Hourly surface weather data 
from the EPA meteorological preprocessor program. Preprocessor output 
includes hourly stability class, wind direction, wind speed, 
temperature, and mixing height. Actual anemometer height (a single 
value) is also required. Wind speed profile exponents (one for each 
stability class) are required if on-site data are input.
    Receptor data requirements are: Distance of each of the five 
receptor rings.

                                c. Output

    Printed output includes:
    Highest and second highest concentrations for the year at each 
receptor for averaging times of 1, 3, and 24-hours, plus a user-selected 
averaging time which MDy be 2, 4, 6, 8, or 12 hours;
    Annual arithmetic average at each receptor; and
    For each day, the highest 1-hour and 24-hour concentrations over the 
receptor field.

                            d. Type of Model

    PPSP is a Gaussian plume model.

                           e. Pollutant Types

    PPSP may be used to model primary pollutants. Settling and 
deposition are not treated.

                     f. Source-Receptor Relationship

    Up to 19 point sources are treated. 1All point sources are assumed 
at the same location.
    Unique stack height and stack exit conditions are applied for each 
source.
    Receptor locations are restricted to 36 azimuths (every 10 degrees) 
and five user-specified radial distances.

                            g. Plume Behavior

    Briggs (1975) final rise formulas for buoyant plumes are used. 
Momentum rise is not considered.
    Transitional or distance-dependent plume rise is not modeled.
    Penetration (complete, partial, or zero) of elevated inversions is 
treated with Briggs (1984) model; ground-level concentrations are 
dependent on degree of plume penetration.

                           h. Horizontal Winds

    Wind speeds are corrected for release height based on power law 
variation, with different exponents for different stability classes and 
variable reference height (7 meters is default). Wind speed power law 
exponents are 0.10, 0.15, 0.20, 0.25, 0.30, and 0.30 for stability 
classes A through F, respectively.
    Constant, uniform (steady-state) wind assumed within each hour.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Rural dispersion parameters are Briggs (Gifford, 1975), with 
stability class defined by u/w* during daytime, and by the method of 
Turner (1964) at night.

[[Page 1027]]

    Urban dispersion is treated by changing all stable cases to 
stability class D.
    Buoyancy-induced dispersion (Pasquill, 1976) is included (using 
H/3.5).

                         k. Vertical Dispersion

    Rural dispersion parameters are Briggs (Gifford, 1975), with 
stability class defined by u/w* during daytime, and by the method of 
Turner (1964).
    Urban dispersion is treated by changing all stable cases to 
stability class D.
    Buoyancy-induced dispersion (Pasquill, 1976) is included (using 
H/3.5).

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Weil, J.C. and R.P. Brower, 1982. The Maryland PPSP dispersion model 
for tall stacks. Ref. No. PPSP MP-36. Prepared for Maryland Department 
of Natural Resources. Prepared by Environmental Center, Martin Marietta 
Corporation, Baltimore, Maryland, (NTIS No. PB 82-219155)
    Londergan, R., D. Minott, D. Wackter, T. Kincaid, and D. Bonitata, 
1983. Evaluation of Rural Air Quality Simulation Models, Appendix G: 
Statistical Tables for PPSP. EPA Publication No. EPA-450/4-83-003, 
Environmental Protection Agency, Research Triangle Park, NC.

                B.11  Mesoscale Puff Model (MESOPUFF II)

                                Reference

    Scire, J.S., F.W. Lurmann, A. Bass, S.R. Hanna, 1984. User's Guide 
to the Mesopuff II Model and Related Processor Programs. EPA Publication 
No. EPA-600/8-84-013. U.S. Environmental Protection Agency, Research 
Triangle Park, NC. (NTIS No. PB 84-181775)
    A Modeling Protocol for Applying MESOPUFF II to Long Range Transport 
Problems, 1992. EPA Publication No. EPA-454/R-92-021. U.S. Environmental 
Protection Agency, Research Triangle Park, NC.

                              Availability

    This model code is available on the Support Center for Regulatory 
Air Models Bulletin Board System and also from the National Technical 
Information Service (see page B-1).

                                Abstract

    MESOPUFF II is a short term, regional scale puff model designed to 
calculate concentrations of up to 5 pollutant species (SO2, 
SO4, NOX, HNO3, NO3). Transport, puff growth, 
chemical transformation, and wet and dry deposition are accounted for in 
the model.

                  a. Recommendations for Regulatory Use

    There is no specific recommendation at the present time. The model 
may be used on a case-by-case basis.

                          b. Input Requirements

    Required input data include four types: (1) Input control parameters 
and selected technical options, (2) hourly surface meteorological data 
and twice daily upper air measurements, hourly precipitation data are 
optional, (3) surface land use classification information, (4) source 
and emissions data.
    Data from up to 25 surface National Weather Service stations and up 
to 10 upper air stations may be considered. Spatially variable fields at 
hour intervals of winds, mixing height, stability class, and relevant 
turbulence parameters are derived by MESOPAC II, the meteorological 
preprocessor program described in the User Guide.
    Source and emission data for up to 25 point sources and/or up to 5 
area sources can be included. Required information are: location in grid 
coordinates, stack height, exit velocity and temperature, and emission 
rates for the pollutant to be modeled.
    Receptor data requirements: Up to a 40 X 40 grid may be used and 
non-gridded receptor locations may be considered.

                                c. Output

    Line printer output includes: All input parameters, optionally 
selected arrays of ground-level concentrations of pollutant species at 
specified time intervals.
    Line printer contour plots output from MESOFILE II post-processor 
program. Computer readable output of concentration array to disk/tape 
for each hour.

                            d. Type of Model

    MESOPUFF II is a Gaussian puff superposition model.

                       e. Pollutant types modeled

    Up to five pollutant species may be modeled simultaneously and 
include: SO2, SO4, NOx, HNO3, NO3.

                     f. Source-Receptor Relationship

    Up to 25 point sources and/or up to 5 area sources are permitted.

                            g. Plume Behavior

    Briggs (1975) plume rise equations are used, including plume 
penetration with buoyancy flux computed in the model.
    Fumigation of puffs is considered and may produce immediate mixing 
or multiple reflection calculations at user option.

[[Page 1028]]

                           h. Horizontal Winds

    Gridded wind fields are computed for 2 layers; boundary layer and 
above the mixed layer. Upper air rawinsonde data and hourly surface 
winds are used to obtain spatially variable u,v component fields at 
hourly intervals. The gridded fields are computed by interpolation 
between stations in the MESOPAC II preprocessor.

                         i. Vertical Wind Speed

    Vertical winds are assumed to be zero.

                        j. Horizontal Dispersion

    Incremental puff growth is computed over discrete time steps with 
horizontal growth parameters determined from power law equations fit to 
sigma y curves of Turner out to 100km. At distances greater than 100km, 
puff growth is determined by the rate given by Heffter (1965).
    Puff growth is a function of stability class and changes in 
stability are treated. Optionally, user input plume growth coefficients 
may be considered.

                         k. Vertical Dispersion

    For puffs emitted at an effective stack height which is less than 
the mixing height, uniform mixing of the pollutant within the mixed 
layer is performed. For puffs centered above the mixing height, no 
effect at the ground occurs.

                       l. Chemical Transformation

    Hourly chemical rate constants are computed from empirical 
expressions derived from photochemical model simulations.

                           m. Physical Removal

    Dry deposition is treated with a resistance method.
    Wet removal may be considered if hourly precipitation data are 
input.

                          n. Evaluation Studies

    Results of tests for some model parameters are discussed in:
    Scire, J. S., F. W. Lurmann, A. Bass, S. R. Hanna, 1984. Development 
of the MESOPUFF II Dispersion Model. EPA Publication No. EPA-600/3-84-
057. U.S. Environmental Protection Agency, Research Triangle Park, NC.

B.12  Mesoscale Transport Diffusion and Deposition Model for Industrial 
                            Sources (MTDDIS)

                                Reference

    Wang, I.T. and T.L. Waldron, 1980. User's Guide for MTDDIS Mesoscale 
Transport, Diffusion, and Deposition Model for Industrial Sources. 
EMSC6062.1UR(R2). Combustion Engineering, Newbury Park, CA.

                              Availability

    A magnetic tape copy of the FORTRAN coding and the user's guide are 
available for a cost of $100 from: Dr. I.T. Wang, Combustion 
Engineering, Environmental Monitoring and Services, Inc., 2421 West 
Hillcrest Drive, Newbury Park, CA 19320.

                                Abstract

    MTDDIS is a variable-trajectory Gaussian puff model applicable to 
long-range transport of point source emissions over level or rolling 
terrain. It can be used to determine 3-hour maximum and 24-hour average 
concentrations of relatively nonreactive pollutants from up to 10 
separate stacks.

                  a. Recommendations for Regulatory Use

    There is no specific recommendation at the present time. The MTDDIS 
Model may be used on a case-by-case basis.

                          b. Input Requirements

    Source data requirements are: Emission rate, physical stack height, 
stack gas exit velocity, stack inside diameter, stack gas temperature, 
and location.
    Meteorological data requirements are: Hourly surface weather data, 
from up to 10 stations, including cloud ceiling, wind direction, wind 
speed, temperature, opaque cloud cover and precipitation. For long-range 
applications, user-analyzed daily mixing heights are recommended. If 
these are not available, the NWS daily mixing heights will be used by 
the program. A single upper air sounding station for the region is 
assumed. For each model run, air trajectories are generated for a 48-
hour period, and therefore, the afternoon mixing height of the day 
before and the mixing heights of the day after are also required by the 
model as input, in order to generate hourly mixing heights for the 
modeled period.
    Receptor data requirements are: Up to three user-specified 
rectangular grids.

                                c. Output

    Printed output includes:
    Tabulations of hourly meteorological parameters include both input 
surface observations and calculated hourly stability classes and mixing 
heights for each station;
    Printed air trajectories for the two consecutive 24-hour periods for 
air parcels generated 4 hours apart starting at 0000 LST; and
    3-hour maximum and 24-hour average grid concentrations over user-
specified rectangular grids are output for the second 24-hour period.

                            d. Type of Model

    MTDDIS is a Gaussian puff model.

[[Page 1029]]

                           e. Pollutant Types

    MTDDIS can be used to model primary pollutants. Dry deposition is 
treated. Exponential decay can account for some reactions.

                     f. Source-Receptor Relationship

    MTDDIS treats up to 10 point sources.
    Up to three rectangular receptor grids may be specified by the user.

                            g. Plume Behavior

    Briggs (1971, 1972) plume rise formulas are used.
    If plume height exceeds mixing height, ground level concentration is 
assumed zero.
    Fumigation and downwash are not treated.

                           h. Horizontal Winds

    Wind speeds and wind directions at each station are first corrected 
for release height. Speed conversions are based on power law variation 
and direction conversions are based on linear height dependence as 
recommended by Irwin (1979).
    Converted wind speeds and wind directions are then weighted 
according to the algorithms of Heffter (1980) to calculate the effective 
transport wind speed and direction.

                         i. Vertical Wind Field

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Transport-time-dependent dispersion coefficients from Heffter (1980) 
are used.

                         k. Vertical Dispersion

    Transport-time-dependent dispersion coefficients from Heffter (1980) 
are used.

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Half-
life is input by the user.

                           m. Physical Removal

    Dry deposition is treated. User input deposition velocity is 
required.
    Wet deposition is treated. User input hourly precipitation rate and 
precipitation layer depth or cloud ceiling height are required.

                          n. Evaluation Studies

    None cited.

                       B.13  Models 3141 and 4141

                                Reference

    Enviroplan, Inc, 1981. User's Manual for Enviroplan's Model 3141 and 
Model 4141. Enviroplan, Inc., West Orange, NJ.

                              Availability

    A magnetic tape copy of the FORTRAN coding and the user's guide are 
available for a cost of $1,900 from: Environplan, Inc., 59 Main Street, 
West Orange, NJ 07052.

                                Abstract

    Models 3141 and 4141 are modifications of CRSTER (UNAMAP VERSION 3) 
and are applicable to complex terrain particularly where receptor 
elevation approximately equals or exceeds the stack top elevation. The 
model utilizes intermediate ground displacement procedures and 
dispersion enhancements developed from an aerial tracer study and ground 
level concentrations measured for a power plant located in complex 
terrain.

                  a. Recommendations for Regulatory Use

    3141 or 4141 can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. 3141 or 4141 must be executed in the equivalent mode.
    3141 or 4141 can be used on a case-by-case basis in lieu of a 
preferred model if it can be demonstrated, using the criteria in Section 
3.2, that 3141 or 4141 is more appropriate for the specific application. 
In this case the model options/modes which are most appropriate for the 
application should be used.

                          b. Input Requirements

    Source data requirements are: Emission rate, physical stack height, 
stack gas exit velocity, stack inside diameter, stack gas exit 
temperature.
    Meteorological data requirements are: Hourly surface weather data 
from the EPA meteorological preprocessor program. Preprocessor output 
includes hourly stability class, wind direction, wind speed, 
temperature, and mixing height. Actual anemometer height (a single 
value) is also required. Wind speed profile exponents (one for each 
stability class) are required if on-site data are input.
    Receptor data requirements are: Distance of each of five receptor 
rings, and receptor elevation.

                                c. Output

    Printed output includes:
    Highest and second highest concentrations for the year at each 
receptor for averaging times of 1, 3, and 24 hours, plus a user-selected 
averaging time which may be 2, 4, 6, 8, or 12 hours.
    Annual arithmetic average at each receptor.
    For each day, the highest 1-hour and 24-hour concentrations over the 
receptor field.

[[Page 1030]]

                            d. Type of Model

    3141 and 4141 are Gaussian plume models.

                           e. Pollutant Types

    3141 and 4141 may be used to model non-reactive pollutants. Settling 
and deposition are not treated.

                     f. Source-Receptor Relationship

    Up to 19 point sources are treated.
    No area sources are treated.
    All point sources are assumed to be collocated.
    Unique stack height is used for each source.
    Receptor locations are restricted to 36 azimuths (every 10 degrees) 
and 5 user-specified radial distances.
    Unique topographic elevation is used for each receptor.

                            g. Plume Behavior

    Briggs (1969, 1971, 1972) final plume rise formulas are used.
    If plume height exceeds mixing height at a receptor location after 
terrain adjustment, concentration is assumed equal to zero.

                           h. Horizontal Winds

    Wind speeds are corrected for release height based on power law 
variation exponents from DeMarrais (1959), different exponents for 
different stability classes, reference height=7 meters. Exponents used 
are 0.10, 0.15, 0.20, 0.25, 0.30, and 0.30 for stability classes A 
through F, respectively.
    Constant, uniform (steady-state) wind is assumed within each hour.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Dispersion coefficients are Pasquill-Gifford coefficients from 
Turner (1969).
    Dispersion is adjusted to 60 minute averaging time by one-fifth 
power rule (Gifford, 1975).
    Buoyancy-induced dispersion (Briggs, 1975) is included.

                         k. Vertical Dispersion

    Dispersion coefficients are Pasquill-Gifford coefficients from 
Turner (1969).
    Buoyancy-induced dispersion (Briggs, 1975) is included.

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Ellis, H.M., P.C. Liu, and C. Runyon, 1979. ``Comparison of 
Predicted and Measured Concentrations for 54 Alternative Models of Plume 
Transport in Complex Terrain, Presented in APCA Annual Conference, 
Cincinnati, OH.
    Ellis, H.M., P.C. Liu, and C. Runyon, 1980. Comparison of Predicted 
and Measured Concentrations for 58 Alternative Models of Plume Transport 
in Complex Terrain. Journal of the Air Pollution Control Association, 
30(6): 670-675.
    Londergan, R., D. Minott, D. Wachter, T. Kincaid and D. Bonitata. 
Evaluation of Rural Air Quality Simulation Models. EPA Publication No. 
EPA-450/4-83-003, Environmental Protection Agency, Research Triangle 
Park, NC.
    Wackter, D., and R. Londergan, 1984. Evaluation of Complex Terrain 
Air Quality Simulation Models. EPA Publication No. EPA-450/4-84-017. 
U.S. Environmental Protection Agency, Research Triangle Park, NC.

                             B.14  MULTIMAX

                                Reference

    Moser, J.H., 1979. MULTIMAX: An Air Dispersion Modeling Program for 
Multiple Sources, Receptors, and Concentration Averages. Shell 
Development Company, Westhollow Research Center, P.O. Box 1380, Houston, 
TX. (NTIS No. PB 80-170178).

                              Availability

    The above report is available from NTIS ($16.95 for paper copy; 
$5.95 on microfiche). The accession number for the computer tape for 
MULTIMAX is PB 80-170160, and the cost is $370.00. Requests should be 
sent to: Computer Products, National Technical Information Service, U.S. 
Department of Commerce, 5825 Port Royal Road, Springfield, VA 22161, 
Phone: (703) 487-4650.

                                Abstract

    MULTIMAX is a Gaussian plume model applicable to both urban and 
rural areas. It can be used to calculate highest and second-highest 
concentrations, for each of several averaging times due to up to 100 
sources arbitrarily located.

                  a. Recommendations for Regulatory Use

    MULTIMAX can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. MULTIMAX must be executed in the equivalent mode.
    MULTIMAX can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
MULTIMAX is more appropriate for the specific application. In this case 
the

[[Page 1031]]

model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: Emission rate, physical stack height, 
stack gas exit velocity, stack inside diameter, and stack gas 
temperature.
    Meteorological data requirements are: Hourly surface weather data 
from the EPA meteorological preprocessor program. Preprocessor output 
includes hourly stability class, wind direction, wind speed, 
temperature, and mixing height. Actual anemometer height (a single 
value) is also required. Wind speed profile exponents (one for each 
stability class) are required if on-site data are input.
    Receptor requirements are: Individual receptor points, arcs and 
circles of receptors, or lines of receptors may be input, with receptor 
point locations, receptor line end points, and receptor circle center 
and radius defined in either cartesian or polar coordinates.

                                c. Output

    Printed output includes: Highest and second-highest concentrations 
for the year at each receptor for averaging time of 1, 3, and 24 hours. 
Annual arithmetic average at each receptor.
    Computer readable output includes: Input data and results.

                            d. Type of Model

    MULTIMAX is a Gaussian plume model.

                           e. Pollutant Types

    MULTIMAX may be used to model primary pollutants. Settling and 
deposition are not treated.

                     f. Source-Receptor Relationship

    Up to 100 point sources at any location may be input.
    Area sources are not treated.
    Point sources may be at any location.
    Unique stack height is used for each source.
    Unique topographic elevation is used for each receptor; must be 
below top of stack.
    Receptors can be defined individually, or along lines or arcs.

                            g. Plume Behavior

    MULTIMAX uses Briggs (1969, 1971, 1972) final plume rise formulas.
    If plume height exceeds mixing height, concentrations downwind are 
assumed equal to zero.

                           h. Horizontal Winds

    Wind speeds are corrected for release height based on power law 
variation exponents from DeMarrais (1959), different exponents for 
different stability classes, reference height=10 meters. The exponents 
are 0.10, 0.15, 0.20, 0.25, 0.30, and 0.30 for stability classes A 
through F, respectively.
    Constant, uniform (steady-state) wind is assumed within each hour.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Rural dispersion coefficients from Turner (1969) are used in 
MULTIMAX with no adjustments made for variations in surface roughness.
    Six stability classes are used, with Turner class 7 treated as Class 
6. Averaging time adjustment is optional.

                         k. Vertical Dispersion

    Rural dispersion coefficients from Turner (1969) are used in 
MULTIMAX with no adjustments made for variations in surface roughness.
    Six stability classes are used, with Turner class 7 treated as Class 
6.
    Perfect reflection at the ground is assumed.
    Mixing height is accounted for with multiple reflections until the 
vertical plume size equals 1.6 times the mixing height; uniform mixing 
is assumed beyond that point.

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Londergan, R., D. Minott, D. Wackter, T. Kincaid, and D. Bonitata, 
1983. Evaluation of Rural Air Quality Simulation Models. EPA Publication 
No. EPA-450/4-83-003. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.

      B.15  Multiple Point Source Diffusion Model (MPSDM--[Deleted]

                    B.16  Multi-Source (SCSTER) Model

                                Reference

    Malik, M.H. and B. Baldwin, 1980. Program Documentation for Multi-
Source (SCSTER) Model. Program Documentation EN7408SS. Southern Company 
Services, Inc., Technical Engineering Systems, 64 Perimeter Center East, 
Atlanta, GA.

                              Availability

    The SCSTER model and user's manual are available at no charge to a 
limited number

[[Page 1032]]

of persons through Southern Company Services. A magnetic tape must be 
provided by those desiring the model. Requests should be directed to: 
Mr. Bryan Baldwin, Research Program Supervisor, Air Quality Program, 
Southern Company Services, Post Office Box 2625, Birmingham, AL 35202.

                                Abstract

    SCSTER is a modified version of the EPA CRSTER model. The primary 
distinctions of SCSTER are its capability to consider multiple sources 
that are not necessarily collocated, its enhanced receptor 
specifications, its variable plume height terrain adjustment procedures 
and plume distortion from directional wind shear.

                  a. Recommendations for Regulatory Use

    SCSTER can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. SCSTER must be executed in the equivalent mode.
    SCSTER can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
SCSTER is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: Emission rate, stack gas exit 
velocity, stack gas temperature, stack exit diameter, physical stack 
height, elevation of stack base, and coordinates of stack location. The 
variable emission data can be monthly or annual averages.
    Meteorological data requirements are: Hourly surface weather data 
from the EPA meteorological preprocessor program. Preprocessor output 
includes hourly stability class wind direction, wind speed, temperature, 
and mixing height. Actual anemometer height (a single value) is 
optional. Wind speed profile exponents (one for each stability class) 
are optional.
    Receptor data requirements are: Cartesian coordinates and elevations 
of individual receptors; distances of receptor rings, with elevation of 
each receptor; receptor grid networks, with elevation of each receptor.
    Any combination of the three receptor input types may be used to 
consider up to 600 receptor locations.

                                c. Output

    Printed output includes:
    Highest and second highest concentrations for the year at each 
receptor for averaging times of 1-, 3-, and 24-hours, a user-selected 
averaging time which may be 2-12 hours, and a 50 high table for 1-, 3-, 
and 24-hours.
    Annual arithmetic average at each receptor; and the highest 1-hour 
and 24-hour concentrations over the receptor field for each day 
considered.
    Optional tables of source contributions of individual point sources 
at up to 20 receptor locations for each averaging period.
    Optional magnetic tape output in either binary or fixed block format 
includes: All 1-hour concentrations.
    Optional card/disk output includes for each receptor: Receptor 
coordinates; receptor elevation; highest and highest, second-highest, l-
, 3-, and 24-hour concentrations; and annual average concentration.

                            d. Type of Model

    SCSTER is a Gaussian plume model.

                           e. Pollutant Types

    SCSTER may be used to model primary pollutants. Settling and 
deposition are not treated.

                     f. Source-Receptor Relationship

    SCSTER can handle up to 60 separate stacks at varying locations and 
up to 600 receptors, including up to 15 receptor rings.
    User input topographic elevation for each receptor is used.

                            g. Plume Behavior

    SCSTER uses Briggs (1969, 1971, 1972) final plume rise formulas. 
Transitional plume rise is optional.
    SCSTER contains options to incorporate wind directional shear with a 
plume distortion method described in Appendix A of the User's Guide.
    SCSTER provides four terrain adjustments including the CRSTER full 
terrain height adjustment and a user-input, stability-dependent plume 
path coefficient adjustment for receptors above stack height.

                           h. Horizontal Winds

    Wind speeds are corrected for release height based on power law 
exponents from DeMarrais (1959), different exponents for different 
stability classes; default reference height of 7m. Default exponents are 
0.10, 0.15, 0.20, 0.25, 0.30, and 0.30 for stability classes A through 
F, respectively.
    Steady-state wind is assumed within a given hour.
    Optional consideration of plume distortion due to user-input, 
stability-dependent wind-direction shear gradients.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

[[Page 1033]]

                        j. Horizontal Dispersion

    Rural dispersion coefficients from Turner (1969) are used.
    Six stability classes are used.

                         k. Vertical Dispersion

    Rural dispersion coefficients from Turner (1969) are used.
    Six stability classes are used.
    An optional test for plume height above mixing height before terrain 
adjustment is included.

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Half-
life is input by the user.

                           m. Physical Removal

    Physical removal is treated using exponential decay. Half-life is 
input by the user.

                          n. Evaluation Studies

    Londergan, R., D. Minott, D. Wackter, T. Kincaid and D. Bonitata, 
1983. Evaluation of Rural Air Quality Simulation Models. EPA Publication 
No. EPA-450/4-83-003. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.

               B.17  Pacific Gas and Electric Plume5 Model

                                Reference

    User's Manual for Pacific Gas and Electric PLUME5 Model, 1981. 
Pacific Gas and Electric Company, San Francisco, CA.

                              Availability

    The User's Manual will be supplied for cost of reproduction. An IBM 
version of the model can be obtained on a user supplied tape free of 
charge from: Mr. Robert N. Swanson, Pacific Gas and Electric Company, 
245 Market Street, Rm. 451, San Francisco, CA 94106.

                                Abstract

    PLUME5 is a steady-state Gaussian plume model applicable to both 
rural and urban areas in uneven terrain. Pollutant concentrations at 500 
receptors from up to 10 sources with up to 15 stacks each can be 
calculated using up to 5 meteorological inputs. The model in its 
``basic'' mode is similar to CRSTER and MPTER. Several options are 
available that allow better simulation of atmospheric conditions and 
improved model outputs. These options allow plume rise into or through a 
stable layer and crosswind spread of the plume by wind directional shear 
with height, initial plume expansion, mean (advective) wind speed, 
terrain considerations, and chemical transformation of pollutants.
    Differences that exist between PLUME5 and CRSTER are in the 
following areas: Stability class determination, hourly mixing height 
schemes, hourly stable layer data, randomization of wind direction, 
extent of data set required for preprocessing meteorological data 
inputs.

                  a. Recommendations for Regulatory Use

    PLUME5 can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. PLUME5 must be executed in the equivalent mode.
    PLUME5 can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
PLUME5 is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: Cartesian or polar coordinates of each 
source with stack height, diameter, gas temperature, and exit velocity 
for each stack.
    Meteorological data requirements are: Surface data--hourly 
meteorological data including wind direction, wind speed, temperature, 
and either ceiling height and total sky cover or sigma A or Delta T 
depending on how stability is computed; stable layer data--either NCC 
data or site specific user supplied data.
    Receptor data requirements are: Cartesian or polar coordinates of 
each receptor.

                                c. Output

    Printed output includes:
    Highest and second highest concentrations for the year printed out 
at each receptor for averaging times of 1, 3, and 24-hours, plus a user-
selected averaging time which may be 2, 4, 6, 8, or 12 hours.
    Annual arithmetic average at each receptor.
    For each day, the highest 1-hour and 24-hour concentrations over the 
receptor field are printed.
    Hourly effective stack height and effective stack height 
distributions.
    Vertical profiles of maximum pollutant concentrations above a 
designated height (Zo) for the data period processed.
    Cumulative number of exceedances of 1 hour and 24-hour specified 
values for all receptors during the entire meteorological data period. 
These specified values will normally be National and State Ambient Air 
Quality Standards.
    Computer readable output includes:
    Hourly concentrations for each receptor on magnetic tape.
    Computer file for input to plotting routine. The file stores the 
highest 1-hour (or other

[[Page 1034]]

specified time period) concentration at each receptor for the entire 
meteorological data period for input into a user supplied plotting 
routine.

                            d. Type of Model

    PLUME5 is a Gaussian plume model.

                           e. Pollutant Types

    PLUME5 may be used to model primary pollutants. Chemical 
transformations of pollutants are treated by exponential decay and/or 
ozone limiting procedures.

                     f. Source-Receptor Relationship

    Can input up to 10 separate sources with up to 15 stacks per source.
    Unique stack height for each source. Rectangular or circular 
receptor locations (up to 500) can be either model generated or user 
input.
    Terrain considerations:
    When plume rise, H, is above the stable layer top concentration 
estimates will only be calculated for receptors at or above the stable 
layer top. If the receptor is below the stable layer top, then the 
concentration is zero.
    When plume rise falls within the stable layer, concerntration 
estimates will be only caluclated for receptors located within this 
region. If the receptor height is above or below the stable top, then 
the concentration is zero.
    When plume rise falls below the stable layer and the receptor height 
is above the stable layer base, then the concentration is zero. If the 
receptor height is below the stable layer base, the receptor height is 
redefined.

                            g. Plume Behavior

    PLUME5 uses Briggs (1975) final plume rise formulas.
    Expansion of plumes within and above a stable layer is treated.

                           h. Horizontal Winds

    User-supplied hourly wind directions are read to nearest 1, 5, 10, 
and 22.5 degrees. (The 5, 10 and 22.5 degree values are randomly 
modified to nearest whole degree within the intervals).
    PLUME5 employs the extrapolated mean wind speed at stack height when 
the effective stack height is equal to or less than the height of the 
inversion base above ground. If the plume rises into a stable layer, a 
separate algorithm is used.
    Constant, uniform (steady state) wind assumed within each hour.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    Six stability classes are defined by either radiation index and wind 
speed (STAR), wind direction fluctuation, or temperature lapse rate.
    Nighttime stability class is based on wind direction fluctuations or 
temperature lapse rate and may be modified according to the method of 
Mitchell and Timbre (1979).
    Dispersion curves are from Turner (1969).

                         k. Vertical Dispersion

    Six stability classes are defined by either radiation index and wind 
speed (STAR), wind direction fluctuations, or temperature lapse rate.
    Nighttime stability class is based on wind direction fluctuations or 
temperature laspe rate and modified according to the method of Mitchell-
Timbre (1979).
    Dispersion curves are from Turner (1969).

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay and/or 
ozone limiting procedures.

                           m. Physical Removal

    Physical removal is treated using exponential decay. Half-life is 
input by the user.

                          n. Evaluation Studies

    Londergan, R., D. Minott, D. Wackter, T. Kincaid and B. Bonitata, 
1983. Evaluation of Rural Air Quality Simulation Models. EPA Publication 
No. EPA-450/4-83-003. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.
    Wackter, D., and R. Londergan, 1984. Evaluation of Complex Terrain 
Air Quality Simulation Models. EPA Publication No. EPA-450/4-84-017. 
U.S. Environmental Protection Agency, Research Triangle Park, NC.

               B.18  PLMSTAR Air Quality Simulation Model

                                Reference

    Lurmann, F. W., D. A. Godden, and H. Collins, 1985. User's Guide to 
the PLMSTAR Air Quality Simulation Model. ERT Document No. M-2206-100, 
Environmental Research & Technology, Inc., Newbury Park, CA.

                              Availability

    The above report and a computer tape are available from: Computer 
Products, National Technical Information Service, U.S. Department of 
Commerce, 5825 Port Royal Road, Springfield, VA 22161. Phone: (703) 487-
4650.

                                Abstract:

    PLMSTAR is a mesoscale Lagrangian photochemical model designed to 
predict atmospheric concentrations of O3, NO2, HNO3, PAN,

[[Page 1035]]

SO2, and SO4= from reactive hydrocarbons, NOX and 
SOX emissions. PLMSTAR is intended to simulate the behavior of 
pollutants in chemically reactive plumes resulting from major point 
source emissions. The model's Lagrangian air parcel is subdivided into a 
5 layer/9 column domain of computational cells. The approach allows for 
realistic simulation of the combined effects of atmospheric chemical 
reactions and pollutant dispersion in the horizontal and vertical 
directions. Other key features of the model include: the capability for 
generation of trajectories at any level of a three-dimensional, 
divergence-free wind field; the capability for calculating and utilizing 
the time and space varying surface deposition of pollutants; an up-to-
date O3/RHC/NOX/SOX chemical mechanism that utilizes 
eight classes of reactive hydrocarbons; the capability for 
simultaneously handling both point and area source emissions; and the 
capability to simulate overwater conditions and land/water transitions.

                  a. Recommendation for Regulatory Use

    There is no specific recommendation at the present time. The PLMSTAR 
Model may be used on a case-by-case basis.

                          b. Input Requirements

    Source data requirements are: Emission rates, stack parameters, 
diurnal emission profiles, and RHC, NOX, and SOX partitioning 
profiles.
    Meteorological data requirements are: Station location, grid 
geometry, surface winds, surface roughness, surface temperature, 
temperature profiles, mixing heights (optional), cloud cover, solar 
radiation, and winds aloft.
    Receptor data requirements are: Receptor locations and topography.

                                c. Output

    Printed output includes: Computed concentrations at specified times 
and receptors along the trajectory.

                            d. Type of Model

    PLMSTAR is a Lagrangian photochemical model.

                           e. Pollutant Types

    The key chemical species included in the model are O3, NO, 
NO2, HNO3, PAN, SO2, SO4=, CO, and eight classes of 
reactive hydrocarbons. Twenty additional intermediate species are 
included in the chemical mechanism.

                    f. Source-Receptor Relationships

    Source-receptor relationships for individual sources are calculated 
using a differencing technique. That is, simulations are made with and 
without an individual source (or group of collocated sources) in 
addition to the RHC/NOX/SOX emissions from all other sources 
in the region. The emission processors allow for up to 250 point sources 
and an unlimited number of area sources (allocated to a grid of 36 x 36 
squares) to be included in the simulation.

                            g. Plume Behavior

    Plume rise calculations are based on Briggs (1975).

                           h. Horizontal Winds

    Gridded hourly multi-level horizontal wind fields are generated 
using techniques similar to those reported by Goodin et al. (1979). 
These involve wind data interpolation, divergence minimization, and 
terrain adjustment. Trajectory path segments are then generated by 
interpolation from the gridded horizontal wind fields in 15 minute steps 
at the user selected vertical level. Either source or receptor oriented 
trajectory may be generated.

                         i. Vertical Wind speed

    Vertical speed is produced by WINDMOD, but is not utilized in the 
trajectory calculation or the pollutant advection algorithm.

                         j. Vertical Dispersion

    Vertical eddy diffusivities (Kz) over land are calculated as a 
function of wind speed, stability, surface roughness, and boundary layer 
height. Over water, wind speed, air-to-sea temperature difference, 
humidity, and boundary layer height are the key parameters.
    The effects of vertical dispersion on pollutant concentrations are 
calculated by numerically integrating finite difference approximations 
to the diffusion equation.
    Mixing heights can be internally calculated or externally specified.

                        k. Horizontal Dispersion

    Horizontal eddy diffusivities (Ky) are calculated either as a 
function of Kz and stability class or as a function of 
y. The effects of horizontal dispersion on pollutant 
concentrations are calculated by numerically integrating finite 
difference approximations to the diffusion equation.

                       l. Chemical Transformation

    PLMSTAR incorporates a slightly condensed version of the Atkinson et 
al. (1982) photochemical mechanism for O3/RHC/NOx/SOx/air 
mixtures. The mechanism contains 62 reactions involving 38 species, 
including 8 classes of organic precursors. The effects of chemical 
transformations on pollutant concentrations are computed by numerically 
integrating the nonlinear kinetic rate equations.

[[Page 1036]]

m. Physical Removal Dry deposition of O3, NO2, HNO3, PAN, 
   SO2, and SO4= is based on the model of Wesely and Hicks 
                                 (1977).

                          n. Evaluation Studies

    Lurmann, F. W., D. A. Godden and A. C. Lloyd, 1982. The Development 
and Selected Sensitivity, Tests of the PLMSTAR Reactive Plume Model, 
Presented at the Third Joint Conference on Applications of Air Pollution 
Meteorology, San Antonio, TX.
    Godden, D. and F. Lurmann, 1983. Development of the PLMSTAR Model 
and its Application to Ozone Episode Conditions in the South Coast Air 
Basin, ERT Document No. P-A702-200, Environmental Research & Technology, 
Inc., Newbury Park, CA.
    Blumenthal, D. L., T. B. Smith, D. E. Lehrman, N. L. Alexander, F. 
Lurman, and D. Godden, 1985. Analysis of Aerometric and Meteorological 
Data for the Ventura County Region, Ref. #90094-511-FR. Sonoma 
Technology, Inc., and Environmental Research and Technology, Inc., for 
the Western Oil and Gas Association, Los Angeles, CA.

                B.19  Plume Visibility Model (PLUVUE II)

                                Reference

    Environmental Protection Agency, 1992. User's Manual for the Plume 
Visibility Model, PLUVUE II (Revised). EPA Publication No. EPA-454/B-92-
008. U.S. Environmental Protection Agency, Research Triangle Park, NC.

                              Availability

    This model code is available on the Support Center for Regulatory 
Air Models Bulletin Board System and also from the National Technical 
Information Service (see page B-1).

                                Abstract

    The Plume Visibility Model (PLUVUE II) is a computerized model used 
for estimating visual range reduction and atmospheric discoloration 
caused by plumes resulting from the emissions of particles, nitrogen 
oxides and sulfur oxides from a single emission source. PLUVUE II 
predicts the transport, dispersion, chemical reactions, optical effects 
and surface deposition of point or area source emissions. Addenda to the 
User's Manual were prepared in February 1985 to allow execution of 
PLUVUE II and the test cases on the UNIVAC computer.

                  a. Recommendations for Regulatory Use

    The Plume Visibility Model (PLUVUE II) may be used on a case-by-case 
basis. When applying PLUVUE II to assess the visual impact of a plume, 
the following precautions should be taken to avoid the possibility of 
error:
    1. Treat the optical effects of NO2 and particles separately as 
well as together to avoid cancellation of NO2 absorption with 
particle scattering.
    2. Examine the visual impact of the plume in 0.1 (or 0), 0.5, and 
1.0 times the expected level of particulate matter in the background 
air.
    3. Examine the visual impact of the plume over the full range of 
obser-ver - plume - sun angles.

                          b. Input Requirements

    Source data requirements are: Location and elevation; emission rates 
of SO2, NOx, and particulates; flue gas flow rate, exit 
velocity, and exit temperature; flue gas oxygen content; properties 
(including density, mass median and standard geometric deviation of 
radius) of the emitted aerosols in the accumulation (0.1-1.0 m) 
and coarse (1.0-10 m) size modes; and deposition velocities for 
SO2, NOx, coarse mode aerosol, and accumulations mode aerosol.
    Meteorological data requirements are: Stability class, wind 
direction (for an observer-based run), wind speed, lapse rate, air 
temperature, relative humidity, and mixing height.
    Other data requirements are: Ambient background concentrations of 
NOx, NO2, O3, and SO2, background visual range or 
sulfate and nitrate concentrations.
    Receptor (observer) data requirements are: Location, elevation, 
terrain which will be observed through the plume (for observer based run 
with white, gray, and black viewing backgrounds).

                                c. Output

    Printed output includes: Plume concentrations and visual effects at 
specified downwind distances for calculated or specified lines of sight.

                            d. Type of Model

    PLUVUE is a Gaussian plume model.

                           e. Pollutant Types

    PLUVUE II treats NO, NO2, SO2, H2SO4, HNO3, 
O3, primary and secondary particles to calculate effects on 
visibility.

                     f. Source Receptor Relationship

    PLUVUE treats a single point or area source.
    Predicted concentrations and visual effects are obtained at user 
specified downwind distances.

                            g. Plume Behavior

    PLUVUE uses Briggs (1969, 1971, 1972) final plume rise equations.

[[Page 1037]]

                           h. Horizontal Winds

    User-specified wind speed (and direction for an observer-based run) 
are assumed constant for the calculation.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    User specified plume widths, or widths computed from either 
Pasquill-Gifford-Turner curves (Turner, 1969) or TVA curves (Carpenter, 
et al., 1971) are used in PLUVUE.

                         k. Vertical Dispersion

    User specified plume depths, or computer from Pasquill-Gifford-
Turner curves (Turner, 1969) or TVA curves (Carpenter, et al., 1971) are 
used in PLUVUE.

                       l. Chemical Transformation

    PLUVUE II treats the chemistry of NO, NO2, O3, OH, 
O(1D), SO2, HNO3, and H2SO4, by means of nine 
reactions. Steady state approximations are used for radicals and for the 
NO/NO2/O3 reactions.

                           m. Physical Removal

    Dry deposition of gaseous and particulate pollutants is treated 
using deposition velocities.

                          n. Evaluation Studies

    Bergstrom, R. W., C. Seigneur, B. L. Babson, H. Y. Holman and M. A. 
Wojcik, 1981. Comparison of the Observed and Predicted Visual Effects 
Caused by Power Plant Plumes. Atmospheric Environment, 15: 2135-2150.
    Bergstrom, R. W., Seigneur, C. D. Johnson, and L. W. Richards, 1984. 
Measurements and Simulations of the Visual Effects of Particulate 
Plumes. Atmospheric Environment, 18(10): 2231-2244.
    Seigneur, C., R. W. Bergstrom, and A. B. Hudischewskyj, 1982. 
Evaluation of the EPA PLUVUE Model and the ERT Visibility Model Based on 
the 1979 VISTTA Data Base. EPA Publication No. EPA-450/4-82-008. U.S. 
Environmental Protection Agency, Research Triangle Park, NC.
    White, W. H., C. Seigneur, D. W. Heinold, M. W. Eltgroth, L. W. 
Richards, P. T. Roberts, P. S. Bhardwaja, W. D. Conner and W. E. Wilson, 
Jr, 1985. Predicting the Visibility of Chimney Plumes: An Inter-
comparison of Four Models with Observations at a Well-Controlled Power 
Plant. Atmospheric Environment, 19: 515-528.

            B.20  Point, Area, Line Source Algorithm (PAL-DS)

                                Reference

    Petersen, W. B, 1978. User's Guide for PAL--A Gaussian-Plume 
Algorithm for Point, Area, and Line Sources. EPA Publication No. EPA-
600/4-78-013. Office of Research and Development, Research Triangle 
Park, NC. (NTIS No. PB 281306)
    Rao, K. S. and H. F. Snodgrass, 1982. PAL-DS Model: The PAL Model 
Including Deposition and Sedimentation. EPA Publication No. EPA-600/8-
82-023. Office of Research and Development, Research Triangle Park, NC. 
(NTIS No. PB 83-117739)

                              Availability

    This model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161. Phone: (703) 487-4650.

                                Abstract

    PAL-DS is an acronym for this point, area, and line source algorithm 
and is a method of estimating short-term dispersion using Gaussian-plume 
steady-state assumptions. The algorithm can be used for estimating 
concentrations of non-reactive pollutants at 99 receptors for averaging 
times of 1 to 24 hours, and for a limited number of point, area, and 
line sources (99 of each type). This algorithm is not intended for 
application to entire urban areas but is intended, rather, to assess the 
impact on air quality, on scales of tens to hundreds of meters, of 
portions of urban areas such as shopping centers, large parking areas, 
and airports. Level terrain is assumed. The Gaussian point source 
equation estimates concentrations from point sources after determining 
the effective height of emission and the upwind and crosswind distance 
of the source from the receptor. Numerical integration of the Gaussian 
point source equation is used to determine concentrations from the four 
types of line sources. Subroutines are included that estimate 
concentrations for multiple lane line and curved path sources, special 
line sources (line sources with endpoints at different heights above 
ground), and special curved path sources. Integration over the area 
source, which includes edge effects from the source region, is done by 
considering finite line sources perpendicular to the wind at intervals 
upwind from the receptor. The crosswind integration is done 
analytically; integration upwind is done numerically by successive 
approximations.
    The PAL-DS model utilizes Gaussian plume-type diffusion-deposition 
algorithms based on analytical solutions of a gradient-transfer model. 
The PAL-DS model can treat

[[Page 1038]]

deposition of both gaseous and suspended particulate pollutants in the 
plume since gravitational settling and dry deposition of the particles 
are explicitly accounted for. The analytical diffusion-deposition 
expressions listed in this report in the limit when pollutant settling 
and deposition velocities are zero, they reduce to the usual Gaussian 
plume diffusion algorithms in the PAL model.

                  a. Recommendations for Regulatory Use

    PAL-DS can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. PAL-DS must be executed in the equivalent mode.
    PAL-DS can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
PAL-DS is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data: Point-sources--emission rate, physical stack height, 
stack gas temperature, stack gas velocity, stack diameter, stack gas 
volume flow, coordinates of stack, initial y and 
z; area sources--source strength, size of area source, 
coordinates of S.W. corner, and height of area source; and line 
sources--source strength, number of lanes, height of source, coordinates 
of end points, initial y and z, width of 
line source, and width of median. Diurnal variations in emissions are 
permitted. When applicable, the settling velocity and deposition 
velocity are also permitted.
    Meteorological data: Wind profile exponents, anemometer height, wind 
direction and speed, stability class, mixing height, air temperature, 
and hourly variations in emission rate.
    Receptor data: Receptor coordinates.

                                c. Output

    Printed output includes:
    Hourly concentration and deposition flux for each source type at 
each receptor; and
    Average concentration for up to 24 hrs for each source type at each 
receptor.

                            d. Type of Model

    PAL-DS is a Gaussian plume model.

                           e. Pollutant Types

    PAL-DS may be used to model non-reactive pollutants.

                    f. Source-Receptor Relationships

    Up to 99 sources of each of 6 source types: Point, area, and 4 types 
of line sources.
    Source and receptor coordinates are uniquely defined.
    Unique stack height for each source.
    Coordinates of receptor locations are user defined.

                            g. Plume Behavior

    Briggs final plume rise equations are used.
    Fumigation and downwash are not treated.
    If plume height exceeds mixing height, concentrations are assumed 
equal to zero.
    Surface concentrations are set to zero when the plume centerline 
exceeds mixing height.

                           h. Horizontal Winds

    User-supplied hourly wind data are used.
    Constant, uniform (steady-state) wind is assumed within each hour. 
Wind is assumed to increase with height.

                         i. Vertical Wind Speeds

    Assumed equal to zero.

                        j. Horizontal Dispersion

    Rural dispersion coefficients from Turner (1969) are used with no 
adjustments made for surface roughness.
    Six stability classes are used.
    Dispersion coefficients (Pasquill-Gifford) are assumed based on a 3 
cm roughness height.

                         k. Vertical Dispersion

    Six stability classes are used.
    Rural dispersion coefficients from Turner (1969) are used; no 
further ajustments are made for variation in surface roughness, 
transport or averaging time.
    Multiple reflection is handled by summation of series until the 
vertical standard deviation equals 1.6 times mixing height. Uniform 
vertical mixing is assumed thereafter.

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    PAL-DS can treat deposition of both gaseous and suspended 
particulates in the plume since gravitational settling and dry 
deposition of the particles are explicitly accounted for.

                          n. Evaluation Studies

    None.

         B.21  Random-Walk Advection and Dispersion Model (RADM)

                               References

    Austin, D. I., A. W. Bealer, and W. R. Goodin, 1981. RandomWalk 
Advection and Dispersion Model (RADM), User's Manual. Dames & Moore, Los 
Angeles, CA.

[[Page 1039]]

    Runchal, A. K., W. R. Goodin, A. W. Bealer, D. I. Austin, 1981. 
Technical Description of the Random-Walk Advection and Dispersion Model 
(RADM). Dames & Moore, Los Angeles, CA.

                              Availability

    A magnetic tape of the computer code and the user's manual are 
available for a cost of $440.00 from: Mr. C. James Olsten, Dames & 
Moore, 445 South Figueroa Street, Suite 3500, Los Angeles, CA 90071-
1665.

                                Abstract

    RADM is a Lagrangian dispersion model which uses the randomwalk 
method to simulate atmospheric dispersion. The technical procedure 
involves tracking tracer particles having a given mass through advection 
by the mean wind and diffusion by the random motions of atmospheric 
turbulence. Turbulent movement is calculated by determining the 
probability distribution of particle movement for a user-defined time 
step. A random number between 0 and 1 is then computed to determine the 
distance of particle movement according to the probability distribution. 
A large number of particles is used to statistically represent the 
distribution of pollutant mass. Concentrations are calculated by summing 
the mass in a volume around the receptor of interest and dividing the 
total mass by the volume. Concentrations can be calculated for any 
averaging time. RADM is applicable to point and area sources.

                  a. Recommendations for Regulatory Use

    There is no specific recommendation at the present time. The RADM 
model may be used on a case-by-case basis.

                          b. Input Requirements

    Source data requirements are: Emission rate, physical stack height, 
stack gas exit velocity, stack inside diameter, stack gas temperature. 
Hourly rates may be specified.
    Meteorological data requirements are: Gridded wind field including 
wind speed, wind direction, stability class, temperature and mixing 
height.
    Receptor data requirements are: coordinates, ground elevation, and 
receptor cell dimensions.

                                c. Output

    Printed output includes:
    Average concentration by receptor for user-specified averaging time 
(concentrations are printed for each block of n hours).
    Average concentrations for the entire period of the run.

                            d. Type of Model

    RADM is a random-walk Lagrangian dispersion model.

                           e. Pollutant Types

    RADM may be used to model inert gases and particles, and pollutants 
with exponential decay or formation rates.

                     f. Source-Receptor Relationship

    Multiple point and area sources may be specified at independent 
locations.
    Unique stack characteristics are used for each source.
    No restriction is placed on receptor locations.
    Perfect reflection at the surface is assumed for the portion not 
removed by dry deposition.
    Particles leaving the gridded area are removed from simulation.

                            g. Plume Behavior

    Briggs (1975) final plume rise equations are used.
    Inversion penetration by the plume is allowed.
    Fumigation may occur as mixing height rises above a plume which has 
penetrated an inversion.

                           h. Horizontal Winds

    Wind speed, wind direction, stability class, temperature and mixing 
height are supplied on a gridded array.
    Any wind field may be used as long as output is in correct format 
for RADM input.
    Wind field is updated at user-specified intervals, which may be less 
than one hour if data are available.
    Vertical wind speed profile is used based on surface roughness and 
stability using Monin-Obukhov length.

                         i. Vertical Wind Speed

    Assumed equal to zero.

                        j. Horizontal Dispersion

    Dispersion is based on diffusivity values calculated from surface 
roughness, stability class and Monin-Obukhov length.
    Diffusivity is a function of height.

                         k. Vertical Dispersion

    Dispersion is based on diffusivity values calculated from surface 
roughness, stability class and Monin-Obukhov length.
    Diffusivity is a function of height.

                       l. Chemical Transformations

    Simple exponential decay or formation is used.

[[Page 1040]]

                           m. Physical Removal

    Dry deposition is treated.

                          n. Evaluation Studies

    Runchal, A. K., A. W. Bealer, and G. S. Segal, 1978. A Completely 
Lagrangian Random-Walk Model for Atmospheric Dispersion. Proceedings of 
the Thirteenth International Colloquium on Atmospheric Pollution, 
National Institute for Applications of Chemical Research, Paris; pp. 
137-142.
    Goodin, W. R., A. K. Runchal and G. Y. Lou, 1980. Evaluation and 
Application of the Random-Walk Advection and Dispersion Model (RADM). 
Symposium on Intermediate Range Atmospheric Transport Processes and 
Technology Assessment, DOE/NOAA/ORNL, Gatlinburg, TN.
    Goodin, W. R., D. I. Austin and A. K. Runchal, 1980. A Model 
Verification and Prediction Study of SO2/SO4= 
Concentrations in the San Francisco Bay Area. Second Joint Conference on 
Applications of Air Pollution Meteorology, AMS/APCA, New Orleans, LA.

                   B.22  Reactive Plume Model (RPM-II)

                                Reference

    D. Stewart, M. Yocke, and M-K Liu, 1981. Reactive Plume Model--RPM-
II, User's Guide, EPA Publication No. EPA-600/8-81-021. U.S. 
Environmental Protection Agency, ESRL, Research Triangle Park, NC. (NTIS 
No. PB 82-230723)

                              Availability

    The above report is available from NTIS ($16.95 for paper copy; 
$5.95 on microfiche). The accession number for the computer tape for 
RPM-II is PB83-154898, and the cost is $460.00. Requests should be sent 
to: Computer Products, National Technical Information Service, U.S. 
Department of Commerce, Springfield, VA 22161. Phone: (703) 487-4650.

                                Abstract

    The Reactive Plume Model, RPM-II, is a computerized model used for 
estimating short-term concentrations of primary and secondary pollutants 
resulting from point or area source emissions. The model is capable of 
simulating the complex interaction of plume dispersion and non-linear 
photochemistry. Two main features of the model are: (1) The horizontal 
resolution within the plume, which offers a more realistic treatment of 
the entrainment process, and (2) its flexibility with regard to choices 
of chemical kinetic mechanisms.

                  a. Recommendations for Regulatory Use

    There is no specific recommendation at the present time. The RPM-II 
Model may be used on a case-by-case basis.

                          b. Input Requirements

    Source data requirements are: Emission rates, name, and molecular 
weight of each species of pollutant emitted; ambient pressure, ambient 
temperature, stack height, stack diameter, stack exit velocity, stack 
gas temperature, and location.
    Meteorological data requirements are: Wind speeds, plume widths or 
stability classes, photolytic rate constants, and plume depths or 
stability classes.
    Receptor data requirements are: Downwind distances or travel times 
at which calculations are to be made.
    Initial concentration of all species is required, and the 
specification of downwind ambient concentrations to be entrained by the 
plume is optional.

                                c. Output

    Short-term concentrations of primary and secondary pollutants at 
either user specified time increments, or user specified downwind 
distances.

                            d. Type of Model

    Reactive plume model.

                           e. Pollutant Types

    Currently, using the Carbon Bond Mechanism (CBM-II), 35 species are 
simulated (68 reactions), including NO, NO2, O3, SO2, 
SO4=, five categories of reactive hydrocarbons, secondary 
nitrogen compounds, organic aerosols, and radical species.

                    f. Source-Receptor Relationships

    Single point source.
    Single aera or volume source.
    Multiple sources can be simulated if they are lined up along the 
wind trajectory.
    redicted concentrations are obtained at a user specified time 
increment, or at user specified downwind distances.

                            g. Plume Behavior

    riggs (1971) plume rise equations are used.

                           h. Horizontal Winds

    User specifies wind speeds as a function of time.

                         i. Vertical Wind Speed

    Not treated.

                        j. Horizontal Dispersion

    User specified plume widths, or user may specify stability and 
widths will be computed using Turner (1969).

                         k. Vertical Dispersion

    User specified plume depths, or user may specify stability in which 
case depths will be

[[Page 1041]]

calculated using Turner (1969). Note that vertical uniformity in plume 
concentration is assumed.

                       l. Chemical Transformation

    The RPM-II has the flexibility of using any user input chemical 
kinetic mechanism. Currently it is run using the chemistry of the Carbon 
Bond Mechanism, CBM-II (Whitten, Killus, and Hogo, 1980). The CBM-II, as 
incorporated in the RPM-II, contains 35 species and 68 reactions 
focusing primarily on hydrocarbon-nitrogen oxides-ozone photochemistry.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Stewart, D. A. and M-K Liu, 1981. Development and Application of a 
Reactive Plume Model. Atmospheric Environment, 15: 2377-2393.

                 B.23  Regional Transport Model (RTM-II)

                                Reference

    Morris, R. E., D. A. Stewart, and M-K Liu, 1982. Revised User's 
Guide to the Regional Transport Model--Version II. Publication No. 
SYSAPP-83/022, Systems Applications Inc., San Rafael, CA.

                              Availability

    The computer code is available on magnetic tape for a cost of $100 
(which includes the User's Manual) from: Systems Applications, Inc., 101 
Lucas Valley Road, San Raphael, CA 94903.

                                Abstract

    The Regional Transport Model (RTM-II) is a computer based air 
quality grid model whose primary use is estimating the distribution of 
air pollution from multiple point sources and area sources at large 
distances (on the scale of several hundred to a thousand kilometers). 
RTM-II offers significant advantages over other long-range transport 
models because it is a quasi-three dimensional hybrid (grid plus 
Lagrangian puff) approach to the solution of the advectiondiffusion 
equation. Furthermore, its formulation allows the treatment of spatially 
and temporally varying wind, mixing depths, diffusivity, and 
transformation rate fields. It is also capable of treating spatially 
varying surface depletion processes. While the modeling concept is 
capable of predicting concentration distributions of many pollutant 
species (e.g., NOX, CO, TSP, etc.), the most notable applications 
of the model to date focus on the long-range transport and 
transformation of SO2 and sulfates.

                  a. Recommendations for Regulatory Use

    There is no specific recommendation at the present time. The RTM 
Model may be used on a case-by-case basis.

                          b. Input Requirements

    Source data requirements are: Major point source SO2 and 
primary sulfate emissions, including stack height, diameter, exit 
velocity, exit temperature, and hourly emission factors; area source 
SO2 and primary SO=4 emissions in gridded format.
    Meteorological data requirements are: Gridded u, v wind fields at 
user specified update interval (model configured for separate wind 
fields in each of two layers), derived from twice daily radiosonde data, 
time variation linear between a maximum convectively driven boundary 
layer and a minimum mechanically driven boundary layer, spatial 
interpolation by an inverse distance weighted objective scheme; gridded 
hourly precipitation fields determined either by averaging precipitation 
rate of all stations in grid (if high density), or by inverse distance 
weighted interpolation (if low density).
    Other data requirements are: Parameter file, containing region 
definition, starting time, output and averaging time intervals, region 
top specifications, and various operational flags; horizontal 
diffusivity fields calculated from wind fields; land use type file; 
deposition velocities and roughness length determined internally from 
tabulated values associated with land use types; initial conditions and 
boundary conditions for both layers (boundary conditions may be time 
varying).

                                c. Output

    Printed output includes:
    Diagnostic information.
    Instantaneous SO2 and sulfate concentration fields for lower 
and upper layers at pre-specified time intervals.
    Average SO2 and sulfate concentration fields for upper and 
lower layer, over pre-specified time intervals. Accumulated dry and wet 
deposition for each species over pre-selected time intervals.

                            d. Type of Model

    RTM-II is a hybrid Eulerian grid and Lagrangian puff model.

                           e. Pollutant Types

    RTM-II is configured for SO2 and sulfate only. Primary sulfate 
emissions may be included.

                    f. Source Receptor Relationships

    Area sources and minor point sources are specified at each grid 
within the modeling domain.

[[Page 1042]]

    Up to 500 major point sources (modeled with the Gaussian puff 
submodel) are allowed.
    Grid average concentration and deposition totals are provided at 
each grid within the modeling domain (dry deposition for lower layer 
grid only). All lower grid average concentration values are assumed to 
be representative of ground-level receptors.

                            g. Plume Behavior

    Plume rise (Briggs, 1971) is calculated for all major point sources 
regardless of whether they are treated in the Gaussian puff submodel.

                           h. Horizontal Winds

    Gridded u, v wind fields are used at a user specified update 
interval for each layer.
    Gaussian puff submodel tracks puff centroids horizontally at user 
specified time intervals.

                         i. Vertical Wind Speed

    Considered implicitly if convergent or divergent winds are provided.

                        j. Horizontal Dispersion

    Plume dispersion is based on y differentials derived 
from a power law fit to Turner (1969) dispersion curves. Variable 
stabilities within adjacent cells are considered.
    Horizontal eddy diffusivities are proportional to the wind field 
deformation and are calculated from the gridded wind fields as 
ancilliary input. Maximum and minimum constraints are imposed on the 
magnitude of the diffusivities.

                         k. Vertical Dispersion

    Plume dispersion is based on z differentials derived 
from a power law fit to Turner (1969) dispersion curves. Variable 
stabilities within adjacent cells are considered.
    Vertical dispersion across the mixed layer-surface layer interface 
is considered when calculating pollutant deposition.

                       l. Chemical Transformation

    Linear SO2 oxidation is treated. Rate constant is diurnally and 
latitudinally variable. A minimum oxidation rate constant is specified 
to account for heterogeneous oxidation during the nighttime.

                           m. Physical Removal

    Dry deposition of SO2 and sulfate is treated. Precipitation 
scavenging of SO2 (reversible) and sulfate (irreversible) is 
treated.

                          n. Evaluation Studies

    Stewart, D. A., R. E. Morris, M-K Liu, and D. Henderson, 1983. 
Evaluation of an Episodic Regional Transport Model for a Multiple Day 
Episode. Atmospheric Environment, 17: 1225-1252.

                              B.24  SHORTZ

                                Reference

    Bjorklund, J. R., and J. F. Bowers, 1982. User's Instructions for 
the SHORTZ and LONGZ Computer Programs, Volumes I and II. EPA 
Publication No. EPA-903/9-82-004a and b. U.S. Environmental Protection 
Agency, Region III, Philadelphia, PA.

                              Availability

    This model is available as part of UNAMAP (Version 6). The computer 
code is available on magnetic tape from: Computer Products, National 
Technical Information Service, U.S. Department of Commerce, Springfield, 
VA 22161. Phone: (703) 487-4650.

                                Abstract

    SHORTZ utilizes the steady state bivariate Gaussian plume 
formulation for both urban and rural areas in flat or complex terrain to 
calculate ground-level ambient air concentrations. It can calculate 1-
hour, 2-hour, 3-hour etc. average concentrations due to emissions from 
stacks, buildings and area sources for up to 300 arbitrarily placed 
sources. The output consists of total concentration at each receptor due 
to emissions from each userspecified source or group of sources, 
including all sources. If the option for gravitational settling is 
invoked, analysis cannot be accomplished in complex terrain without 
violating mass continuity.

                  a. Recommendations for Regulatory Use

    SHORTZ can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. SHORTZ must be executed in the equivalent mode.
    SHORTZ can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
SHORTZ is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: For point, building or area sources, 
location, elevation, total emission rate (optionally classified by 
gravitational settling velocity) and decay coefficient; for stack 
sources, stack height, effluent temperature, effluent exit velocity, 
stack radius (inner), actual volumetric flow rate, and ground elevation 
(optional); for building sources, height, length and width, and 
orientation; for area sources, characteristic vertical dimension, and 
length, width and orientation.

[[Page 1043]]

    Meteorological data requirements are: Wind speed and measurement 
height, wind profile exponents, wind direction, standard deviations of 
vertical and horizontal wind directions, (i.e., vertical and lateral 
turbulent intensities), mixing height, air temperature, and vertical 
potential temperature gradient.
    Receptor data requirements are: coordinates, ground elevation.

                                c. Output

    Printed output includes: Total concentration due to emissions from 
user-specified source groups, including the combined emissions from all 
sources (with optional allowance for depletion by deposition).

                            d. Type of Model

    SHORTZ is a Gaussian plume model.

                           e. Pollutant Types

    SHORTZ may be used to model primary pollutants. Settling and 
deposition of particulates are treated.

                    f. Source-Receptor Relationships

    User specified locations for sources and receptors are used.
    Receptors are assumed to be at ground level.

                            g. Plume Behavior

    Plume rise equations of Bjorklund and Bowers (1982) are used.
    Stack tip downwash (Bjorklund and Bowers, 1982) is included.
    All plumes move horizontally and will fully intercept elevated 
terrain.
    Plumes above mixing height are ignored.
    Perfect reflection at mixing height is assumed for plumes below the 
mixing height.
    Plume rise is limited when the mean wind at stack height approaches 
or exceeds stack exit velocity.
    Perfect reflection at ground is assumed for pollutants with no 
settling velocity.
    Zero reflection at ground is assumed for pollutants with finite 
settling velocity.
    Tilted plume is used for pollutants with settling velocity 
specified. Buoyancy-induced dispersion (Briggs, 1972) is included.

                           h. Horizontal Winds

    Winds are assumed homogeneous and steady-state.
    Wind speed profile exponents are functions of both stability class 
and wind speed. Default values are specified in Bjorklund and Bowers 
(1982).

                         i. Vertical Wind Speed

    Vertical winds are assumed equal to zero.

                        j. Horizontal Dispersion

    Horizontal plume size is derived from input lateral turbulent 
intensities using adjustments to plume height, and rate of plume growth 
with downwind distance specified in Bjorklund and Bowers (1982).

                         k. Vertical Dispersion

    Vertical plume size is derived from input vertical turbulent 
intensities using adjustments to plume height and rate of plume growth 
with downwind distance specified in Bjorklund and Bowers (1982).

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Time 
constant is input by the user.

                           m. Physical Removal

    Settling and deposition of particulates are treated.

                          n. Evaluation Studies

    Bjorklund, J. R., and J. F. Bowers, 1982. User's Instructions for 
the SHORTZ and LONGZ Computer Programs. EPA Publication No. EPA-903/9-
82004. EPA Environmental Protection Agency, Region III, Philadelphia, 
PA.
    Wackter, D., and R. Londergan, 1984. Evaluation of Complex Terrain 
Air Quality Simulation Models. EPA Publication No. EPA-450/4-84-017. 
U.S. Environmental Protection Agency, Research Triangle Park, NC.

                 B.25  Simple Line-Source Model (GMLINE)

                                Reference

    Chock, D. P., 1980. User's Guide for the Simple Line-Source Model 
for Vehicle Exhaust Dispersion Near a Road, Environmental Science 
Department, General Motors Research Laboratories, Warren, MI.

                              Availability

    Copies of the above reference are available without charge from: Dr. 
D. P. Chock, Environmental Science Department, General Motors Research 
Laboratories, General Motors Technical Center, Warren, MI 48090.
    The User's Guide contains the short algorithm of the model.

                                Abstract

    GMLINE is a simple steady-state Gaussian plume model which can be 
used to determine hourly (or half-hourly) averages of exhaust 
concentrations within 100m from a roadway on a relatively flat terrain. 
The model allows for plume rise due to the heated exhaust, which can be 
important when the crossroad wind is very low. It also utilizes a new 
set of vertical dispersion parameters which reflects the influence of 
traffic-induced turbulence.

[[Page 1044]]

                  a. Recommendations for Regulatory Use

    GMLINE can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. GMLINE must be executed in the equivalent mode.
    GMLINE can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in Section 3.2, that 
GMLINE is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.

                          b. Input Requirements

    Source data requirements are: Emission rate per unit length per 
lane, the number of lanes on each road, distances from lane centers to 
the receptor, source and receptor heights.
    Meteorological data requirements are: Buoyancy flux, ambient 
stability condition, ambient wind and its direction relative to the 
road.
    Receptor data requirements are: Distance and height above ground.

                                c. Output

    Printed output includes: Hourly or (half-hourly) concentrations at 
the receptor due to exhaust emission from a road (or a system of roads 
by summing the results from repeated model applications).

                            d. Type of Model

    GMLINE is a Gaussian plume model.

                           e. Pollutant Types

    GMLINE can be used to model primary pollutants. Settling and 
deposition are not treated.

                     f. Source-Receptor Relationship

    GMLINE treats arbitrary location of line sources and receptors.

                            g. Plume Behavior

    Plume-rise formula adequate for a heated line source is used.

                           h. Horizontal Winds

    GMLINE uses user-supplied hourly (or half-hourly) ambient wind speed 
and direction. The wind measurements are from a height of 5 to 10m.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Dispersion Parameters

    Horizontal dispersion parameter is not used.

                         k. Vertical Dispersion

    A vertical dispersion parameter is used which is a function of 
stability and wind-road angle. Three stability classes are used: 
unstable, neutral and stable. The parameters take into account the 
effect of traffic-generated turbulence (Chock, 1980).

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Chock, D. P., 1978. A Simple Line-Source Model for Dispersion Near 
Roadways. Atmospheric Environment, 12: 823-829.
    Sistla, G., P. Samson, M. Keenan, and S. T. Ras, 1979. A Study of 
Pollutant Dispersion Near Highways. Atmospheric Environment, 13: 669-
685.

                B.26  Texas Climatological Model (TCM-2)

                                Reference

    Staff of the Texas Air Control Board, 1980. User's Guide to the 
TEXAS CLIMATOLOGICAL MODEL (TCM). Texas Air Control Board, Permits 
Section, 6330 Highway 290 East, Austin, TX.

                              Availability

    The TCM-2 model is available from the Texas Air Control Board at the 
following cost:

User's Manual only--$20.00
User's Manual and Model (Magnetic Tape)--$80.00

    Requests should be directed to: Data Processing Division, Texas Air 
Control Board, 6330 Highway 290 East, Austin, TX 78723.

                                Abstract

    TCM is a climatological steady-state Gaussian plume model for 
determining long-term (seasonal or annual arithmetic) average pollutant 
concentrations of non-reactive pollutants.

                  a. Recommendations for Regulatory Use

    TCM can be used if it can be demonstrated to estimate concentrations 
equivalent to those provided by the preferred model for a given 
application. TCM must be executed in the equivalent mode.
    TCM can be used on a case-by-case basis in lieu of a preferred model 
if it can be demonstrated, using the criteria in section 3.2, that TCM 
is more appropriate for the specific application. In this case the model 
options/modes which are most appropriate for the application should be 
used.

[[Page 1045]]

                          b. Input Requirements

    Source data requirements are: Point source coordinates emission 
rates (by pollutant), stack height, stack diameter, stack gas exit 
velocity, stack gas temperature; area source coordinates (southwest 
corner), size, emission rate.
    Meteorological data requirements are: Stability wind rose and 
average temperature.
    Receptor data requirements are: Size and spacing of the rectangular 
receptor grid.

                                c. Output

    Printed output includes:
    Period average concentrations listed, displayed in map format, or 
punched on cards at the user's option.
    Culpability list option provides the contributions of the five 
highest contributors at each receptor.
    Maximum concentration option provides the maximum concentration for 
each scenario (run).

                            d. Type of Model

    TCM is a Gaussian plume model.

                           e. Pollutant Types

    TCM may be used to model primary pollutants. Settling and deposition 
are not treated.

                     f. Source-Receptor Relationship

    Arbitrary location of point sources and area sources are treated.
    Arbitrary location and spacing of rectangular grid of receptors are 
used. (Area source grid is best defined in terms of the receptor grid, 
so that the receptors fall in the center of the area source).
    Receptors located in simple terrain may be modeled.

                            g. Plume Behavior

    Briggs (1975) plume rise equations, including momentum rise, are 
used for point sources.
    Two-thirds power law is used when transitional rise option is 
selected. Flares are treated.

                           h. Horizontal Winds

    Characteristic wind speed is calculated for each direction-stability 
class combination.
    This characteristic speed is the inverse of the average inverse 
speed for the stability-wind direction combination.
    Wind speed is adjusted to stack height by a power law using 
exponents of 0.10, 0.15, 0.20, 0.25, 0.30, and 0.30 for stabilities A 
through F, respectively.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed to be zero.

                        j. Horizontal Dispersion

    Uniform distribution within each 22.5 degree sector is assumed.

                         k. Vertical Dispersion

    Dispersion parameters for point sources are fit to Turner (1969); 
for area sources in the urban mode the fit is to Gifford and Hanna 
(1970).
    Seven stability classes are used.
    Pasquill A through F are treated, with daytime ``D'' and nighttime 
``D'' given separately.
    In the urban mode, E and F stability classes are treated as D-night. 
Perfect reflection at the ground is assumed.

                       l. Chemical Transformation

    Chemical transformations are treated using exponential decay. Half-
life is input by the user.

                           m. Physical Removal

    Physical removal is treated using exponential decay. Half-life is 
input by the user.

                          n. Evaluation Studies

    Londergan, R. J., D. H. Minott, D. J. Wachter and R. R. Fizz, 1983. 
Evaluation of Urban Air Quality Simulation Models. EPA Publication No. 
EPA-450/4-83-020. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.
    Durrenberger, C. S., B. A. Braberg, and K. Zimmermann, 1983. 
Development of a Protocol to be Used for Dispersion Model Comparison 
Studies. Presented at the 76th Annual Meeting of the Air Pollution 
Control Association, Atlanta, GA.

                   B.27  Texas Episodic Model (TEM-8)

                                Reference

    Staff of the Texas Air Control Board, 1979. User's Guide to the 
TEXAS EPISODIC MODEL. Texas Air Control Board, Permits Section, 6330 
Highway 290 East, Austin, TX.

                              Availibility

    The TEM-8 model is available from the Texas Air Control Board at the 
following costs:

User's Manual only--$20.00
User's Manual and Model (Magnetic Tape)--$80.00

    Requests should be directed to: Data Processing Division, Texas Air 
Control Board, 6330 Highway 290 East, Austin, TX 78723.

                                Abstract

    TEM is a short-term, steady-state Gaussian plume model for 
determining short-term concentrations of non-reactive pollutants.

[[Page 1046]]

                  a. Recommendations for Regulatory Use

    TEM can be used if it can be demonstrated to estimate concentrations 
equivalent to those provided by the preferred model for a given 
application. TEM must be executed in the equivalent mode.
    TEM can be used on a case-by-case basis in lieu of a preferred model 
if it can be demonstrated, using the criteria in section 3.2, that TEM 
is more appropriate for the specific application. In this case the model 
options/modes which are most appropriate for the application should be 
used.

                          b. Input Requirements

    Source data requirements are: Locations, average emission rates and 
heights of emissions for both point and area sources; stack gas 
temperature, stack gas exit velocity, and stack inside diameter for 
point sources for plume rise calculations.
    Meteorological data requirements are: Hourly surface weather data 
from the EPA meteorological preprocessor program. Preprocessor output 
includes hourly stability class, wind direction, wind speed, 
temperature, and mixing height. Any combination of hourly meteorological 
data up to 24 hours may be used, (e.g., 1, 3, 5, 8, 24 hours).
    Receptor requirements are: Size, spacing and location of rectangular 
grid of receptors.

                                c. Output

    Printed output includes: concentration list;
    Spatial array (concentrations displayed as on a map);
    Punched cards of the concentration list;
    Culpability list (percent contributions) of the five highest 
contributors to each receptor;
    Maximum concentration; and
    Point source list.

                            d. Type of Model

    TEM is a Gaussian plume model.

                           e. Pollutant Types

    TEM can be used to model non-reactive pollutants. Settling and 
deposition are not treated.

                     f. Source-Receptor Relationship

    Arbitrary locations of point sources and area sources are treated.
    Arbitrary location and spacing of rectangular grid of receptors is 
treated. Area source grid is best defined in terms of the receptor grid 
so that the receptors fall in the centers of the area sources.
    Receptors located in simple terrain may be modeled.

                            g. Plume Behavior

    Briggs (1975) plume rise equations are used, including momentum 
rise, for point sources.
    Transitional rise is calculated.
    Stack-tip downwash may be evaluated.

                           h. Horizontal Winds

    Wind speeds are adjusted to release height by power law formula, 
using exponents of 0.10, 0.15, 0.20, 0.25, 0.30 and 0.35 for stabilities 
A through F, respectively.
    Steady-state wind is assumed.

                         i. Vertical Wind Speed

    Vertical wind is assumed equal to zero.

                        j. Horizontal Dispersion

    Gaussian plume coefficients are fitted to Turner (1969). The Turner 
curves are treated as 10-minute averages and the coefficients are 
adjusted to represent 30-minute or hourly as appropriate.
    In the urban mode, stable cases are shifted to neutral nighttime (D-
night) conditions and urban mixing heights are used.

                         k. Vertical Dispersion

    Dispersion parameters for point sources are fit to Turner (1969); 
for area sources, in the urban mode, the fit is to Gifford and Hanna 
(1970).
    Total reflection of the plume at the ground is assumed.
    In the urban mode, E and F stability classes are treated as D-
nighttime.

                       l. Chemical Transformation

    Chemical transformation is treated using exponential decay. Half-
life is input by the user.

                           m. Physical Removal

    Physical removal is treated using exponential decay. Half-life is 
input by the user.

                          n. Evaluation Studies

    Londergan, R., D. Minott, D. Wachter, T. Kincaid and D. Bonitata, 
1983. Evaluation of Rural Air Quality Simulation Models. EPA-450/4-83-
003, Environmental Protection Agency, Research Triangle Park, NC.
    Durrenberger, C. J., B. A. Broberg, and K. Zimmermann, 1983. 
Development of a Protocol to be Used for Dispersion Model Comparison 
Studies. Presented at the 76th Annual Meeting of the Air Pollution 
Control Association, Atlanta, GA.

                             B.28  AVACTA II

                                Reference

    Zannetti, P., G. Carboni and R. Lewis, 1985. AVACTA II User's Guide 
(Release 3). AeroVironment, Inc., Technical Report AV-OM-85/520.

[[Page 1047]]

                              Availability

    A magnetic tape copy of the FORTRAN coding and the user's guide are 
available at a cost of $2,500 (non-profit organization) or $3,500 (other 
organizations) from: AeroVironment, Inc., 825 Myrtle Avenue, Monrovia, 
CA 91016. Phone: (818) 357-9983.

                                Abstract

    The AVACTA II model is a Gaussian model in which atmospheric 
dispersion phenomena are described by the evolution of plume elements, 
either segments or puffs. The model can be applied for short time (e.g., 
one day) simulations in both transport and calm conditions.
    The user is given flexibility in defining the computational domain, 
the three-dimensional meteorological and emission input, the receptor 
locations, the plume rise formulas, the sigma formulas, etc. Without 
explicit user's specifications, standard default values are assumed.
    AVACTA II provides both concentration fields on the user specified 
receptor points, and dry/wet deposition patterns throughout the domain. 
The model is particularly oriented to the simulation of the dynamics and 
transformation of sulfur species (SO2 and SO4=), but can 
handle virtually any pair of primary-secondary pollutants.

                  a. Recommendations for Regulatory Use

    AVACTA II can be used if it can be demonstrated to estimate 
concentrations equivalent to those provided by the preferred model for a 
given application. AVACTA II must be executed in the equivalent mode. 
1AVACTA II can be used on a case-by-case basis in lieu of a preferred 
model if it can be demonstrated, using the criteria in section 3.2, that 
AVACTA II is more appropriate for the specific application. In this case 
the model options/modes which are most appropriate for the application 
should be used.

                b. Input Requirements (all time-varying)

    A time-varying input is required at each computational step. Only 
those data which have changed need to be input by the user.
    Source data requirements are: Coordinates, emission rates of primary 
and secondary pollutants, initial plume sigmas (for non-point sources), 
exit temperature, exit velocity, stack inside diameter.
    Meteorological data requirements are: Surface wind measurements, 
wind profiles (if available), atmospheric stability profiles, mixing 
heights.
    Receptor data requirements are: Receptor coordinates.
    Other data requirements: Coordinates of the computational domain, 
grid cell specification, terrain elevations, user's computational and 
printing options.

                                c. Output

    The model's outpout is provided according to user's printing flags. 
Hourly, 3-hour and 24-hour concentration averages are computed, together 
with highest and highest-second-highest concentration values. Both 
partial and total concentrations are provided.

                            d. Type of Model

    AVACTA II is Gaussian segment/puff model.

                           e. Pollutant Types

    AVACTA II can handle any couple of primary-secondary pollutants 
(e.g., SO2 and SO4=).

                     f. Source Receptor Relationship

    The AVACTA II approach maintains the basic Gaussian formulation, but 
allows a numerical simulation of both nonstationary and nonhomogeneous 
meteorological conditions. The emitted pollutant material is divided 
into a sequence of ``elements,'' either segments or puffs, which are 
connected together but whose dynamics are a function of the local 
meteorological conditions. Since the meteorological parameters vary with 
time and space, each element evolves according to the different 
meteorological conditions encountered along its trajectory.
    AVACTA II calculates the partial contribution of each source in each 
receptor during each interval. The partial concentration is the sum of 
the contribution of all existing puffs, plus that of the closest 
segment.

                            g. Plume Behavior

    The user can select the following plume rise formulas:

Briggs (1969, 1971, 1972)
CONCAWE (Briggs, 1975)
Lucas-Moore (Briggs, 1975)
User's function, i.e., a subroutine supplied by the user

    With cold plumes, the program uses a special routine for the 
computation of the jet plume rise. The user can also select several 
computational options that control plume behavior in complex terrain and 
its total/partial reflections.

                           h. Horizontal Winds

    A 3D mass-consistent wind field is optionally generated.

                         i. Vertical Wind Speed

    A 3D mass-consistent wind field is optionally generated.

                        j. Horizontal Dispersion

    During each step, the sigmas of each element are increased. The user 
can select the following sigma functions:


[[Page 1048]]


Pasquill-Gifford-Turner (in the functional form specified by Green et 
al., 1980)
Brookhaven (Gifford, 1975)
Briggs, open country (Gifford, 1975)
Briggs, urban, i.e., McElory-Pooler, (Gifford, 1975)
Irwin (1979)
LO-LOCAT (MacCready et al., 1974)
User-specified function, by points
User-specified function, with a user's subroutine

    The virtual distance/age concept is used for incrementing the sigmas 
at each time step.

                         k. Vertical Dispersion

    During each step, the sigmas of each element are increased. The user 
can select the following sigma functions:

Pasquill-Gifford-Turner (in the functional form specified by Green et 
al., 1980)
Brookhaven (Gifford, 1975)
Briggs, open country (Gifford, 1975)
Briggs, urban, i.e., McElroy-Pooler, (Gifford, 1975)
LO-LOCAT (MacCready et al., 1974)
User-specified function, with a user's subroutine

    The virtual distance/age concept is used for incrementing the sigmas 
at each time step.

                       l. Chemical Transformation

    First order chemical reactions (primary-to-secondary pollutant).

                           m. Physical Removal

    First order dry and wet deposition schemes.

                          n. Evaluation Studies

    Zannetti P., G. Carboni and A. Ceriani, 1985. AVACTA II Model 
Simulations of Worst-Case Air Pollution Scenarios in Northern Italy. 
15th International Technical Meeting on Air Pollution Modeling and Its 
Application, St. Louis, Missouri, April 15-19.

                 B.29  Shoreline Dispersion Model (SDM)

                                Reference

    PEI Associates, 1988. User's Guide to SDM--A Shoreline Dispersion 
Model. EPA Publication No. EPA-450/4-88-017. U.S. Environmental 
Protection Agency, Research Triangle Park, NC. (NTIS No. PB 89-164305)

                              Availability

    The user's guide is available from the National Technical 
Information Service. The model code is available on the Support Center 
for Regulatory Air Models Bulletin Board System (see page B-1).

                                Abstract

    SDM is a hybrid multipoint Gaussian dispersion model that calculates 
source impact for those hours during the year when fumigation events are 
expected using a special fumigation algorithm and the MPTER regulatory 
model for the remaining hours (see Appendix A).

                  a. Recommendations for Regulatory Use

    SDM may be used on a case-by-case basis for the following 
applications:
     Tall stationary point sources located at a shoreline of any 
large body of water;
     Rural or urban areas;
     Flat terrain;
     Transport distances less than 50 km;
     1-hour to 1-year averaging times.

                          b. Input Requirements

    Source data: Location, emission rate, physical stack height, stack 
gas exit velocity, stack inside diameter, stack gas temperature and 
shoreline coordinates.
    Meteorological data: Hourly values of mean wind speed within the 
Thermal Internal Boundary Layer (TIBL) and at stack height; mean 
potential temperature over land and over water; over water lapse rate; 
and surface sensible heat flux. In addition to these meteorological 
data, SDM access standard NWS surface and upper air meteorological data 
through the RAMMET preprocessor.
    Receptor data: coordinates for each receptor.

                                c. Output

    Printed output includes the MPTER model output as well as: special 
shoreline fumigation applicability report for each day and source; high-
five tables on the standard output with ``F'' designation next to the 
concentration if that averaging period includes a fumigation event.

                            d. Type of Model

    SDM is hybrid Gaussian model.

                           e. Pollutant Types

    SDM may be used to model primary pollutants. Settling and deposition 
are not treated.

                    f. Source-Receptor Relationships

    SDM applies user-specified locations of stationary point sources and 
receptors. User input stack height, shoreline orientation and source 
characteristics for each source. No topographic elevation is input; flat 
terrain is assumed.

                            g. Plume Behavior

    SDM uses Briggs (1975) plume rise for final rise. SDM does not treat 
stack tip or building downwash.

[[Page 1049]]

                           h. Horizontal Winds

    Constant, uniform (steady-state) wind is assumed for an hour. 
Straight line plume transport is assumed to all downwind distances. 
Separate wind speed profile exponents (EPA, 1980) for both rural and 
urban cases are assumed.

                         i. Vertical Wind Speed

    Vertical wind speed is assumed equal to zero.

                        j. Horizontal Dispersion

    For the fumigation algorithm coefficients based on Misra (1980) and 
Misra and McMillan (1980) are used for plume transport in stable air 
above TIBL and based on Lamb (1978) for transport in the unstable air 
below the TIBL. An effective horizontal dispersion coefficient based on 
Misra and Onlock (1982) is used. For nonfumigation periods, algorithms 
contained in the MPTER model are used (see Appendix A).

                         k. Vertical Dispersion

    For the fumigation algorithm, coefficients based on Misra (1980) and 
Misra and McMillan (1980) are used.

                       l. Chemical Transformation

    Chemical transformation is not included in the fumigation algorithm.

                           m. Physical Removal

    Physical removal is not explicitly treated.

                          n. Evaluation Studies

    Environmental Protection Agency, 1987. Analysis and Evaluation of 
Statistical Coastal Fumigation Models. EPA Publication No. EPA-450/4-87-
002. U.S. Environmental Protection Agency, Research Triangle Park, NC. 
(NTIS PB 87-175519)

                         B.30  WYNDvalley Model

                                Reference

    Harrison, Halstead, 1992. ``A User's Guide to WYNDvalley 3.11, an 
Eulerian-Grid Air-Quality Dispersion Model with Versatile Boundaries, 
Sources, and Winds,'' WYNDsoft Inc., Mercer Island, WA.

                              Availability

    Copies of the user's guide and the executable model computer codes 
are available at a cost of $295.00 from: WYNDsoft, Incorporated, 6333 
77th Avenue SE., Mercer Island, WA 98040. Phone: (206) 232-1819.

                                Abstract

    WYNDvalley 3.11 is a multi-layer (up to five vertical layers) 
Eulerian grid dispersion model that permits users flexibility in 
defining borders around the areas to be modeled, the boundary conditions 
at these borders, the intensities and locations of emissions sources, 
and the winds and diffusivities that affect the dispersion of 
atmospheric pollutants. The model's output includes gridded contour 
plots of pollutant concentrations for the highest brief episodes (during 
any single time step), the highest and second-highest 24-hour averages, 
averaged dry and wet deposition fluxes, and a colored ``movie'' showing 
evolving dispersal of pollutant concentrations, together with temporal 
plots of the concentrations at specified receptor sites and statistical 
inference of the probabilities that standards will be exceeded at those 
sites. WYNDvalley is implemented on IBM compatible 
microcomputers, with interactive data input and color graphics display.

                  a. Recommendations for Regulatory Use

    WYNDvalley may be used on a case-by-case basis to estimate 
concentrations during valley stagnation periods of 24 hours or longer. 
Recommended inputs are listed below.

                       Variable Recommended Value

Horizontal cell dimension 250 to 500 meters
Vertical layers 3 to 5
Layer depth 50 to 100 meters
Background (internal to model)
Zero (background should be added externally to model estimates)
Lateral meander velocity default
Diffusivities default
Ventilation parameter (upper default boundary condition)
Dry deposition velocity zero (site-specific)
Washout ratio zero (site-specific)

                          b. Input Requirements

    Input data, including model options, modeling domain boundaries, 
boundary conditions, receptor locations, source locations, and emission 
rates, may be entered interactively, or through existing template files 
from a previous run. Meteorological data, including wind speeds, wind 
directions, rain rates (optionally, for wet deposition calculations), 
and time of day and year, may be of arbitrary time increment (usually an 
hour) and are entered into the model through an external meteorological 
data file. Optionally, users may specify diffusivities and upper 
boundary conditions for each time increment. Source emission rates may 
be constant or modulated on a daily, weekly, and/or seasonal basis.

                                c. Output

    Output from WYNDvalley includes gridded contour maps of the highest 
pollutant concentrations at each time step and the highest and second-
highest 24-hour average concentrations. Output also includes the 
deposition patterns for wet, dry, and total fluxes of

[[Page 1050]]

the pollutants to the surface, integrated over the simulation period. A 
running ``movie'' of the concentration patterns is displayed on the 
screen (with optional printout) as they evolve during the simulation. 
Output files include tables of daily-averaged pollutant concentrations 
at every modeled grid cell, and of hourly concentrations at up to eight 
specified receptors. Statistical analyses are performed on the hourly 
and daily data to estimate the probabilities that specified levels will 
be exceeded more than once during an arbitrary number of days with 
similar weather.

                            d. Type of Model

    WYNDvalley is a three dimensional Eulerian grid model.

                           e. Pollutant Types

    WYNDvalley may be used to model any inert pollutant.

                    f. Source-Receptor Relationships

    Source and receptors may be located anywhere within the user-defined 
modeling domain. All point and area sources, or portions of an area 
source, within a given grid cell are summed to define a representative 
emission rate for that cell. Concentrations are calculated for each and 
every grid cell in the modeling domain. Up to eight grid cells may be 
selected as receptors, for which time histories of concentration and 
deposition fluxes are determined, and probabilities of exceedance are 
calculated.

                            g. Plume Behavior

    Emissions for buoyant point sources are placed by the user in a grid 
cell which best reflects the expected effective plume height during 
stagnation conditions. Five vertical layers are available to the user.

                           h. Horizontal Winds

    During each time step in the model, the winds are assumed to be 
uniform throughout the modeling domain. Numerical diffusion is minimized 
in the advection algorithm. To account for terrain effects on winds and 
dispersion, an ad hoc algorithm is employed in the model to distribute 
concentrations near boundaries.

                         i. Vertical Wind Speed

    Winds are assumed to be constant with height.

                        j. Horizontal Dispersion

    Horizontal eddy diffusion coefficients may be entered explicitly by 
the user at every time step. Alternatively, a default algorithm may be 
invoked to estimate these coefficients from the wind velocities and 
their variances.

                         k. Vertical Dispersion

    Vertical eddy diffusion coefficients and a top-of-model boundary 
condition y be entered explicitly by the user at every time step. 
Alternatively, a default algorithm may be invoked to estimate these 
coefficients from the horizontal wind velocities and their variances, 
and from an empirical time-of-day correction derived from temperature 
gradient measurements and Monin-Obukhov similarities.

                       l. Chemical Transformation

    Chemical transformation is not explicitly treated by WYNDvalley.

                           m. Physical Removal

    WYNDvalley optionally simulates both wet and dry deposition. Dry 
deposition is proportional to concentration in the lowest layer, while 
wet deposition is proportional to rain rate and concentration in each 
layer. Appropriate coefficients (deposition velocities and washout 
ratios) are input by the user.

                          n. Evaluation Studies

    Harrison, H., G. Pade, C. Bowman and R. Wilson, 1990. Air Quality 
During Stagnations: A Comparison of RAM and WYNDvalley with PM-10 
Measurements at Five Sites. Journal of the Air & Waste Management 
Association, 40: 47-52.
    Yoshida, C., 1990. A Comparison of WYNDvalley Versions 2.12 and 3.0 
with PM-10 Measurements in Six Cities in the Pacific Northwest, Lane 
Regional Air Pollution Authority, Springfield, OR.
    Maykut, N. et al., 1990. Evaluation of the Atmospheric Deposition of 
Toxic Contaminants to Puget Sound, State of Washington, Puget Sound 
Water Quality Authority, Seattle, WA.

               B.31  Dense Gas Dispersion Model (DEGADIS)

                                Reference

    Environmental Protection Agency, 1989. User's Guide for the DEGADIS 
2.1--Dense Gas Dispersion Model. EPA Publication No. EPA-450/4-89-019. 
U.S. Environmental Protection Agency, Research Triangle Park, NC 27711. 
(NTIS No. PB 90-213893)

                              Availability

    The model code is only available on the Support Center for 
Regulatory Air Models Bulletin Board System (see page B-1).

                                Abstract

    DEGADIS 2.1 is a mathematical dispersion model that can be used to 
model the transport of toxic chemical releases into the atmosphere. Its 
range of applicability includes continuous, instantaneous, finite 
duration,

[[Page 1051]]

and time-variant releases; negatively-buoyant and neutrally-buoyant 
releases; ground-level, low-momentum area releases; ground-level or 
elevated upwardly-directed stack releases of gases or aerosols. The 
model simulates only one set of meteorological conditions, and therefore 
should not be considered applicable over time periods much longer than 1 
or 2 hours. The simulations are carried out over flat, level, 
unobstructed terrain for which the characteristic surface roughness is 
not a significant fraction of the depth of the dispersion layer. The 
model does not characterize the density of aerosol-type releases; 
rather, the user must assess that independently prior to the simulation.

                  a. Recommendations for Regulatory Use

    DEGADIS can be used as a refined modeling approach to estimate 
short-term ambient concentrations (1-hour or less averaging times) and 
the expected area of exposure to concentrations above specified 
threshold values for toxic chemical releases. It is especially useful in 
situations where density effects are suspected to be important and where 
screening estimates of ambient concentrations are above levels of 
concern.

                          b. Input Requirements

    Data may be input directly from an external input file or via 
keyboard using an interactive program module. The model is not set up to 
accept real-time meteorological data or convert units of input values. 
Chemical property data must be input by the user. Such data for a few 
selected species are available within the model. Additional data may be 
added to this data base by the user.
    Source data requirements are: Emission rate and release duration; 
emission chemical and physical properties (molecular weight, density vs. 
concentration profile in the case of aerosol releases, and contaminant 
heat capacity in the case of a nonisothermal gas release; stack 
parameters (i.e., diameter, elevation above ground level, temperature at 
release point).
    Meteorological data requirements are: Wind speed at designated 
height above ground, ambient temperature and pressure, surface 
roughness, relative humidity, and ground surface temperature (which in 
most cases can be adequately approximated by the ambient temperature).
    Receptor data requirements are: Averaging time of interest, above-
ground height of receptors, and maximum distance between receptors 
(since the model computes downwind receptor distances to optimize model 
performance, this parameter is used only for nominal control of the 
output listing, and is of secondary importance). No indoor 
concentrations are calculated by the model.

                                c. Output

    Printed output includes in tabular form:
     Listing of model input data;
     Plume centerline elevation, mole fraction, concentration, 
density, and temperature at each downwind distance;
     y and z values at each downwind 
distance;
     Off-centerline distances to 2 specified concentration 
values at a specified receptor height at each downwind distance (these 
values can be used to draw concentration isopleths after model 
execution);
     Concentration vs. time histories for finite-duration 
releases (if specified by user).
    The output print file is automatically saved and must be sent to the 
appropriate printer by the user after program execution.
    No graphical output is generated by the current version of this 
program.

                            d. Type of Model

    DEGADIS estimates plume rise and dispersion for vertically-upward 
jet releases using mass and momentum balances with air entrainment based 
on laboratory and field-scale data. These balances assume Gaussian 
similarity profiles for velocity, density, and concentration within the 
jet. Ground-level denser-than-air phenomena is treated using a power law 
concentration distribution profile in the vertical and a hybrid top hat-
Gaussian concentration distribution profile in the horizontal. A power 
law specification is used for the vertical wind profile. Ground-level 
cloud slumping phenomena and air entrainment are based on laboratory 
measurements and field-scale observations.

                           e. Pollutant Types

    Neutrally- or negatively-buoyant gases and aerosols. Pollutants are 
assumed to be non-reactive and non-depositing.

                    f. Source-Receptor Relationships

    Only one source can be modeled at a time.
    There is no limitation to the number of receptors; the downwind 
receptor distances are internally-calculated by the model. The DEGADIS 
calculation is carried out until the plume centerline concentration is 
50% below the lowest concentration level specified by the user.
    The model contains no modules for source calculations or release 
characterization.

                            g. Plume Behavior

    Jet/plume trajectory is estimated from mass and momentum balance 
equations. Surrounding terrain is assumed to be flat, and stack tip 
downwash, building wake effects, and fumigation are not treated.

[[Page 1052]]

                           h. Horizontal Winds

    Constant logarithmic velocity profile which accounts for stability 
and surface roughness is used.
    The wind speed profile exponent is determined from a least squares 
fit of the logarithmic profile from ground level to the wind speed 
reference height. Calm winds can be simulated for ground-level low-
momentum releases.
    Along-wind dispersion of transient releases is treated using the 
methods of Colenbrander (1980) and Beals (1971).

                         i. Vertical Wind Speed

    Not treated.

                        j. Horizontal Dispersion

    When the plume centerline is above ground level, horizontal 
dispersion coefficients are based upon Turner (1969) and Slade (1968) 
with adjustments made for averaging time and plume density.
    When the plume centerline is at ground level, horizontal dispersion 
also accounts for entrainment due to gravity currents as parameterized 
from laboratory experiments.

                         k. Vertical Dispersion

    When the plume centerline is above ground level, vertical dispersion 
coefficients are based upon Turner (1969) and Slade (1968). Perfect 
ground reflection is applied.
    In the ground-level dense-gas regime, vertical dispersion is also 
based upon results from laboratory experiments in density-stratified 
fluids.

                       l. Chemical Transformation

    Not specifically treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Spicer, T. O. and J. A. Havens, 1986. Development of Vapor 
Dispersion Models for Nonneutrally Buoyant Gas Mixtures--Analysis of 
USAF/N2O4 Test Data. USAF Engineering and Services Laboratory, 
Final Report ESL-TR-86-24.
    Spicer, T.O. and J.A. Havens, 1988. Development of Vapor Dispersion 
Models for Nonneutrally Buoyant Gas Mixtures--Analysis of TFI/NH3 
Test Data. USAF Engineering and Services Laboratory, Final Report.

                        o. Operating Information

    The model requires either a VAX computer or an IBM--
compatible PC for its execution.
    The model currently does not require supporting software. A FORTRAN 
compiler is required to generate program executables in the VAX 
computing environment. PC executables are provided within the source 
code; however, a PC FORTRAN compiler may be used to tailor a PC 
executable to the user's PC environment.

 B.32 HGSYSTEM: Dispersion Models for Ideal Gases and Hydrogen Fluoride

                               References

    Post, L. (ed.), 1994. HGSYSTEM 3.0 Technical Reference Manual. Shell 
Research Limited, Thornton Research Centre, Chester, United Kingdom. 
(TNER 94.059)
    Post, L., 1994. HGSYSTEM 3.0 User's Manual. Shell Research Limited, 
Thornton Research Centre, Chester, United Kingdom. (TNER 94.058)

                              Availability

    The PC-DOS version of the HGSYSTEM software (HGSYSTEM: Version 3.0, 
Programs for modeling the dispersion of ideal gas and hydrogen fluoride 
releases, executable programs and source code can be installed from 
floppy diskettes. These diskettes and all documentation are available as 
a package from API [(202) 682-8340] or NTIS (see Section B.0).

                           Technical Contacts

    Doug N. Blewitt, AMOCO Corporation, 1670 Broadway / MC 2018, Denver, 
CO 80201, (303) 830-5312
    Howard J. Feldman, American Petroleum Institute, 1220 L Street, 
Northwest, Washington, D.C. 20005, (202) 682-8340

                                Abstract

    HGSYSTEM is a PC-based software package consisting of mathematical 
models for estimating of one or more consecutive phases between spillage 
and near-field and far-field dispersion of a pollutant. The pollutant 
can be either a two-phase, multi-compound mixture of non-reactive 
compounds or hydrogen fluoride (HF) with chemical reactions. The 
individual models are:

Database program:
    DATAPROP  generates physical properties used in other HGSYSTEM 
models
Source term models:
    SPILL  transient liquid release from a pressurized vessel
    HFSPILL  SPILL version specifically for HF
    LPOOL  evaporating multi-compound liquid pool model
Near-field dispersion models:
    AEROPLUME  high-momentum jet dispersion model
    HFPLUME  AEROPLUME version specifically for HF
    HEGABOX  dispersion of instantaneous heavy gas releases
Far-field dispersion models:
    HEGADAS(S,T)  heavy gas dispersion (steady-state and transient 
version)

[[Page 1053]]

    PGPLUME  passive Gaussian dispersion
Utility programs:
    HFFLASH  flashing of HF from pressurized vessel
    POSTHS/POSTHT  post-processing of HEGADAS(S,T) results
    PROFILE  post-processor for concentration contours of airborne 
plumes
    GET2COL  utility for data retrieval

    The models assume flat, unobstructed terrain. HGSYSTEM can be used 
to model steady-state, finite-duration, instantaneous and time dependent 
releases, depending on the individual model used. The models can be run 
consecutively, with relevant data being passed on from one model to the 
next using link files. The models can be run in batch mode or using an 
iterative utility program.

                  a. Recommendations for Regulatory Use

    HGSYSTEM can be used as a refined model to estimate short-term 
ambient concentrations. For toxic chemical releases (non-reactive 
chemicals or hydrogen fluoride; 1-hour or less averaging times) the 
expected area of exposure to concentrations above specified threshold 
values can be determined. For flammable non-reactive gases it can be 
used to determine the area in which the cloud may ignite.

                          b. Input Requirements

    1. HFSPILL input data: reservoir data (temperature, pressure, 
volume, HF mass, mass-fraction water), pipe-exit diameter and ambient 
pressure.
    2. EVAP input data: spill rate, liquid properties, and evaporation 
rate (boiling pool) or ambient data (non-boiling pool).
    3. HFPLUME and PLUME input data: reservoir characteristics, 
pollutant parameters, pipe/release data, ambient conditions, surface 
roughness and stability class.
    4. HEGADAS input data: ambient conditions, pollutant parameters, 
pool data or data at transition point, surface roughness, stability 
class and averaging time.
    5. PGPLUME input data: link data provided by HFPLUME and the 
averaging time.

                                c. Output

    1. The HGSYSTEM models contain three post-processor programs which 
can be used to extract modeling results for graphical display by 
external software packages. GET2COL can be used to extract data from the 
model output files. HSPOST can be used to develop isopleths, extract any 
2 parameters for plotting and correct for finite release duration. 
HTPOST can be used to produce time history plots.
    2. HFSPILL output data: reservoir mass, spill rate, and other 
reservoir variables as a function of time. For HF liquid, HFSPILL 
generates link data to HFPLUME for the initial phase of choked liquid 
flow (flashing jet), and link data to EVAP for the subsequent phase of 
unchoked liquid flow (evaporating liquid pool).
    3. EVAP output data: pool dimensions, pool evaporation rate, pool 
mass and other pool variables for steady state conditions or as a 
function of time. EVAP generates link data to the dispersion model 
HEGADAS (pool dimensions and pool evaporation rate).
    4. HFPLUME and PLUME output data: plume variables (concentration, 
width, centroid height, temperature, velocity, etc.) as a function of 
downwind distance.
    5. HEGADAS output data: concentration variables and temperature as a 
function of downwind distance and (for transient case) time.
    6. PGPLUME output data: concentration as a function of downwind 
distance, cross-wind distance and height.

                            d. Type of Model

    HGSYSTEM is made up of four types of dispersion models. HFPLUME and 
PLUME simulate the near-field dispersion and PGPLUME simulates the 
passive-gas dispersion downwind of a transition point. HEGADAS simulates 
the ground-level heavy-gas dispersion.

                           e. Pollutant Types

    HGSYSTEM may be used to model non-reactive chemicals or hydrogen 
fluoride.

                    f. Source-Receptor Relationships

    HGSYSTEM estimates the expected area of exposure to concentrations 
above user-specified threshold values. By imposing conservation of mass, 
momentum and energy the concentration, density, speed and temperature 
are evaluated as a function of downwind distance.

                            g. Plume Behavior

    1. HFPLUME and PLUME: (1) are steady-state models assuming a top-hat 
profile with cross-section averaged plume variables; and (2) the 
momentum equation is taken into account for horizontal ambient shear, 
gravity, ground collision, gravity-slumping pressure forces and ground-
surface drag.
    2. HEGADAS: assumes the heavy cloud to move with the ambient wind 
speed, and adopts a power-law fit of the ambient wind speed for the 
velocity profile.
    3. PGPLUME: simulates the passive-gas dispersion downwind of a 
transition point from HFPLUME or PLUME for steady-state and finite 
duration releases.

                           h. Horizontal Winds

    A power law fit of the ambient wind speed is used.

[[Page 1054]]

                         i. Vertical Wind Speed

    Not treated.

                        j. Horizontal Dispersion

    1. HFPLUME and PLUME: Plume dilution is caused by air entrainment 
resulting from high plume speeds, trailing vortices in wake of falling 
plume (before touchdown), ambient turbulence and density stratification. 
Plume dispersion is assumed to be steady and momentum-dominated, and 
effects of downwind diffusion and wind meander (averaging time) are not 
taken into account.
    2. HEGADAS: This model adopts a concentration similarity profile 
expressed in terms of an unknown center-line ground-level concentration 
and unknown vertical/cross-wind dispersion parameters. These quantities 
are determined from a number of basic equations describing gas-mass 
conservation, air entrainment (empirical law describing vertical top-
entrainment in terms of global Richardson number), cross-wind gravity 
spreading (initial gravity spreading followed by gravity-current 
collapse) and cross-wind diffusion (Briggs formula).
    3. PGPLUME: It assumes a Gaussian concentration profile in which the 
cross-wind and vertical dispersion coefficients are determined by 
empirical expressions. All unknown parameters in this profile are 
determined by imposing appropriate matching criteria at the transition 
point.

                         k. Vertical Dispersion

    See description above.

                       l. Chemical Transformation

    Not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    1. PLUME has been validated against field data for releases of 
liquified propane, and wind tunnel data for buoyant and vertically-
released dense plumes. HFPLUME and PLUME have been validated against 
field data for releases of HF (Goldfish experiments) and propane 
releases. In addition, the plume rise algorithms have been tested 
against Hoot, Meroney, and Peterka, Ooms and Petersen databases. HEGADAS 
has been validated against steady and transient releases of liquid 
propane and LNG over water (Maplin Sands field data), steady and finite-
duration pressurized releases of HF (Goldfish experiments; linked with 
HFPLUME), instantaneous release of Freon (Thorney Island field data; 
linked with the box model HEGABOX) and wind tunnel data for steady, 
isothermal dispersion.
    2. Validation studies are contained in the following references:

McFarlane, K., Prothero, A., Puttock, J.S., Roberts, P.T. and Witlox, 
H.W.M., 1990. Development and validation of atmospheric dispersion 
models for ideal gases and hydrogen fluoride, Part I: Technical 
Reference Manual. Report TNER.90.015. Thornton Research Centre, Shell 
Research, Chester, England. [EGG 1067-2151] (NTIS No. DE 93-000953)
Witlox, H.W.M., McFarlane, K., Rees, F.J., and Puttock, J.S., 1990. 
Development and validation of atmospheric dispersion models for ideal 
gases and hydrogen fluoride, Part II: HGSYSTEM Program User's Manual. 
Report TNER.90.016. Thornton Research Centre, Shell Research, Chester, 
England. [EGG 1067-2152] (NTIS No. DE 93-000954)

                               B.33  SLAB

                                Reference

    Ermak, D.L., 1990. User's Manual for SLAB: An Atmospheric Dispersion 
Model for Denser-than-Air Releases (UCRL-MA-105607), Lawrence Livermore 
National Laboratory.

                              Availability

    1. The computer code is available on the Support Center for 
Regulatory Air Models Bulletin Board System (Upload/Download Area; see 
page B-1), and can also be obtained from: Energy Science and Technology 
Center, P.O. Box 1020, Oak Ridge, TN 37830, (615) 576-2606.
    2. The User's Manual (NTIS No. DE 91-008443) can be obtained from: 
Computer Products, National Technical Information Service, U.S. 
Department of Commerce, Springfield, VA 22161, (703) 487-4650.

                                Abstract

    The SLAB model is a computer model, PC-based, that simulates the 
atmospheric dispersion of denser-than-air releases. The types of 
releases treated by the model include a ground-level evaporating pool, 
an elevated horizontal jet, a stack or elevated vertical jet and an 
instantaneous volume source. All sources except the evaporating pool may 
be characterized as aerosols. Only one type of release can be processed 
in any individual simulation. Also, the model simulates only one set of 
meteorological conditions; therefore direct application of the model 
over time periods longer than one or two hours is not recommended.

                       a. Recommendations for Use

    The SLAB model should be used as a refined model to estimate spatial 
and temporal distribution of short-term ambient concentration (e.g., 1-
hour or less averaging times) and the expected area of exposure to

[[Page 1055]]

concentrations above specified threshold values for toxic chemical 
releases where the release is suspected to be denser than the ambient 
air.

                          b. Input Requirements

    1. The SLAB model is executed in the batch mode. Data are input 
directly from an external input file. There are 29 input parameters 
required to run each simulation. These parameters are divided into 5 
categories by the user's guide: source type, source properties, spill 
properties, field properties, and meteorological parameters. The model 
is not designed to accept real-time meteorological data or convert units 
of input values. Chemical property data are not available within the 
model and must be input by the user. Some chemical and physical property 
data are available in the user's guide.
    2. Source type is chosen as one of the following: evaporating pool 
release, horizontal jet release, vertical jet or stack release, or 
instantaneous or short duration evaporating pool release.
    3. Source property data requirements are physical and chemical 
properties (molecular weight, vapor heat capacity at constant pressure; 
boiling point; latent heat of vaporization; liquid heat capacity; liquid 
density; saturation pressure constants), and initial liquid mass 
fraction in the release.
    4. Spill properties include: source temperature, emission rate, 
source dimensions, instantaneous source mass, release duration, and 
elevation above ground level.
    5. Required field properties are: desired concentration averaging 
time, maximum downwind distance (to stop the calculation), and four 
separate heights at which the concentration calculations are to be made.
    6. Meteorological parameter requirements are: ambient measurement 
height, ambient wind speed at designated ambient measurement height, 
ambient temperature, surface roughness, relative humidity, atmospheric 
stability class, and inverse Monin-Obukhov length (optional, only used 
as an input parameter when stability class is unknown).

                                c. Output

    1. No graphical output is generated by the current version of this 
program. The output print file is automatically saved and must be sent 
to the appropriate printer by the user after program execution. Printed 
output includes in tabular form:
    2. Listing of model input data;
    3. Instantaneous spatially-averaged cloud parameters--time, downwind 
distance, magnitude of peak concentration, cloud dimensions (including 
length for puff-type simulations), volume (or mole) and mass fractions, 
downwind velocity, vapor mass fraction, density, temperature, cloud 
velocity, vapor fraction, water content, gravity flow velocities, and 
entrainment velocities;
    4. Time-averaged cloud parameters--parameters which may be used 
externally to calculate time-averaged concentrations at any location 
within the simulation domain (tabulated as functions of downwind 
distance);
    5. Time-averaged concentration values at plume centerline and at 
five off-centerline distances (off-centerline distances are multiples of 
the effective cloud half-width, which varies as a function of downwind 
distance) at four user-specified heights and at the height of the plume 
centerline.

                            d. Type of Model

    As described by Ermak (1989), transport and dispersion are 
calculated by solving the conservation equations for mass, species, 
energy, and momentum, with the cloud being modeled as either a steady-
state plume, a transient puff, or a combination of both, depending on 
the duration of the release. In the steady-state plume mode, the 
crosswind-averaged conservation equations are solved and all variables 
depend only on the downwind distance. In the transient puff mode, the 
volume-averaged conservation equations are solved, and all variables 
depend only on the downwind travel time of the puff center of mass. Time 
is related to downwind distance by the height-averaged ambient wind 
speed. The basic conservation equations are solved via a numerical 
integration scheme in space and time.

                           e. Pollutant Types

    Pollutants are assumed to be non-reactive and non-depositing dense 
gases or liquid-vapor mixtures (aerosols). Surface heat transfer and 
water vapor flux are also included in the model.

                    f. Source-Receptor Relationships

    1. Only one source can be modeled at a time.
    2. There is no limitation to the number of receptors; the downwind 
receptor distances are internally-calculated by the model. The SLAB 
calculation is carried out up to the user-specified maximum downwind 
distance.
    3. The model contains submodels for the source characterization of 
evaporating pools, elevated vertical or horizontal jets, and 
instantaneous volume sources.

                            g. Plume Behavior

    Plume trajectory and dispersion is based on crosswind-averaged mass, 
species, energy, and momentum balance equations. Surrounding terrain is 
assumed to be flat and of uniform surface roughness. No obstacle or 
building effects are taken into account.

[[Page 1056]]

                           h. Horizontal Winds

    A power law approximation of the logarithmic velocity profile which 
accounts for stability and surface roughness is used.

                         i. Vertical Wind Speed

    Not treated.

                         j. Vertical Dispersion

    The crosswind dispersion parameters are calculated from formulas 
reported by Morgan et al. (1983), which are based on experimental data 
from several sources. The formulas account for entrainment due to 
atmospheric turbulence, surface friction, thermal convection due to 
ground heating, differential motion between the air and the cloud, and 
damping due to stable density stratification within the cloud.

                        k. Horizontal Dispersion

    The horizontal dispersion parameters are calculated from formulas 
similar to those described for vertical dispersion, also from the work 
of Morgan, et al. (1983).

                       l. Chemical Transformation

    The thermodynamics of the mixing of the dense gas or aerosol with 
ambient air (including water vapor) are treated. The relationship 
between the vapor and liquid fractions within the cloud is treated using 
the local thermodynamic equilibrium approximation. Reactions of released 
chemicals with water or ambient air are not treated.

                           m. Physical Removal

    Not treated.

                          n. Evaluation Studies

    Blewitt, D.N., J.F. Yohn, and D.L. Ermak, 1987. An Evaluation of 
SLAB and DEGADIS Heavy Gas Dispersion Models Using the HF Spill Test 
Data, Proceedings, AIChE International Conference on Vapor Cloud 
Modeling, Boston, MA, November, pp. 56-80.
    Ermak, D.L., S.T. Chan, D.L. Morgan, and L.K. Morris, 1982. A 
Comparison of Dense Gas Dispersion Model Simulations with Burro Series 
LNG Spill Test Results, J. Haz. Matls., 6: 129-160.
    Zapert, J.G., R.J. Londergan, and H. Thistle, 1991. Evaluation of 
Dense Gas Simulation Models. EPA Publication No. EPA-450/4-90-018. U.S. 
Environmental Protection Agency, Research Triangle Park, NC.

                            B. REF References

American Society of Mechanical Engineers, 1968. Recommended Guide for 
the Prediction of Airborne Effluents. American Society of Mechanical 
Engineers, New York, NY.
American Society of Mechanical Engineers, 1979. Recommended Guide for 
the Prediction of Airborne Effluents, Third Edition. American Society of 
Mechanical Engineers, New York, NY.
Atkinson, R., A. C. Lloyd, and L. Winges, 1982. An Updated Chemical 
Mechanism for Hydrocarbon/NOx/SOx Photooxidation Suitable for 
Inclusion in Atmospheric Simulation Models. Atmospheric Environment, 16: 
1341-1355.
Bjorklund, J. R., and J. F. Bowers, 1982. User's Instructions for the 
SHORTZ and LONGZ Computer Programs. EPA Publication No. EPA-903/9-82-
004a and b. U.S. Environmental Protection Agency, Region III, 
Philadelphia, PA.
Briggs, G. A., 1969. Plume Rise. U.S. Atomic Energy Commission Critical 
Review Series, Oak Ridge National Laboratory, Oak Ridge, TN. (NTIS 
No.TID-25075)
Briggs, G. A., 1971. Some Recent Analyses of Plume Rise Observations. 
Proceedings of the Second International Clean Air Congress, edited by H. 
M. Englund and W. T. Berry. Academic Press, New York, NY.
Briggs, G. A., 1972. Discussion on Chimney Plumes in Neutral and Stable 
Surroundings. Atmospheric Environment, 6: 507-510.
Briggs, G. A., 1974. Diffusion Estimation for Small Emissions. USAEC 
Report ATDL-106. U.S. Atomic Energy Commission, Oak Ridge, TN.
Briggs, G. A., 1975. Plume Rise Predictions. Lectures on Air Pollution 
and Environmental Impact Analyses. American Meteorological Society, 
Boston, MA, pp. 59-111.
Briggs, G. A., 1984. Plume Rise and Buoyancy Effects. Atmospheric 
Science and Power Production, Darryl Randerson (Ed.). DOE Report DOE/
TIC-27601, Technical Information Center, Oak Ridge, TN. (NTIS No. 
DE84005177)
Carpenter, S. B., T. L. Montgomery, J. M. Leavitt, W. C. Colbaugh, and 
F. W. Thomas, 1971. Principal Plume Dispersion Models: TVA Power Plants. 
Journal of Air Pollution Control Association, 21: 491-495.
Chock, D. P., 1980. User's Guide for the Simple Line-Source Model for 
Vehicle Exhaust Dispersion Near a Road. Environmental Science 
Department, General Motors Research Laboratories, Warren, MI.
Cramer, H. E., H. V. Geary, and J. F. Bowers, 1975. Diffusion-Model 
Calculation of Long-term and Short-term Ground-level SO2 
Concentrations in Alleghaney County, Pennsylvania. EPA Publication No. 
EPA-903/9-75-018. U.S. Environmental Protection Agency, Region III, 
Philadelphia, PA.
DeMarrais, G. A., 1959. Wind Speed Profiles at Brookhaven National 
Laboratory. Journal of Applied Meteorology, 16: 181-189.
Durbin, P. A., T. A. Hecht, and G. Z. Whitten, 1975. Mathematical 
Modeling of Simulated Photochemical Smog. EPA Publication No. EPA-600/4-
75-026. U.S.Environmental Protection Agency, Research Triangle Park, NC.

[[Page 1057]]

Eschenroeder, A. Q., 1972. Evaluation of a Diffusion Model for 
Photochemical Smog Simulation. EPA Publication No. EPA-R4-73-012. U.S. 
Environmental Protection Agency, Research Triangle Park, NC.
Environmental Research and Technology, Inc., 1980. User's Guide for 
RTDM.WC A``Worst Case'' Version of the ERT Rough Terrain Model. ERT 
Document M-0186000R. Environmental Research and Technology, 696 Virginia 
Road, Concord, MA.
Gifford, F. A. and S. R. Hanna, 1970. Urban Air Pollution Modeling. 
Proceedings of the Second International Clean Air Congress, Academic 
Press, Washington, D.C.; pp. 140-1151.
Gifford, F. A., 1975. Atmospheric Dispersion Models for Environmental 
Pollution Applications. Lectures on Air Pollution and Environmental 
Impact Analyses. American Meteorological Society, Boston, MA.
Goodin, W. R., G. J. McRae, and J. H. Seinfeld, 1980. An Objective 
Analysis Technique for Constructing Three-Dimensional Urban-Scale Wind 
Fields. Journal of Applied Meteorology, 19: 98-108.
Hecht, T. A., and J. H. Seinfeld, 1974. Further Development of 
Generalized Kinetic Mechanism for Photochemical Smog. Environmental 
Science and Technology, 8(4): 327-339.
Heffter, J. L., 1965. The Variations of Horizontal Diffusion Parameters 
with Time for Travel Periods of One Hour or Longer. Journal of Applied 
Meteorology, 4: 153-156.
Heffter, J. L., 1980. Air Resources Laboratories Atmospheric Transport 
and Dispersion Model (ARL-ATAD). NOAA Technical Memorandum ERL ARL-81. 
Air Resources Laboratories, Silver Spring, MD.
Irwin, J. S., 1979. Estimating Plume Dispersion--A Recommended 
Generalized Scheme. Fourth Symposium on Turbulence, Diffusion and Air 
Pollution, Reno, NV.
Larsen, R. I., 1971. A Mathematical Model for Relating Air Quality 
Measurements to Air Quality Standards. Office of Air Programs 
Publication No. AP-89. U.S. Environmental Protection Agency, Research 
Triangle Park, NC.
McElroy, J. L. and F. Pooler, 1968. St. Louis Dispersion Study, Volume 
II--Analyses. NAPCA Publication No. AP-53. National Air Pollution 
Control Administration, Arlington, VA.
Mitchell, Jr., A. E. and K. O. Timbre, 1979. Atmospheric Stability Class 
from Horizontal Wind Fluctuation. Presented at the 72nd Annual Meeting 
of the Air Pollution Control Association, Cincinnati, OH.
Moore, G. E., T. E. Stoeckenius and D. A. Stewart, 1982. A Survey of 
Statistical Measures of Model Performance and Accuracy for Several Air 
Quality Models. EPA Publication No. EPA-450/4-83-001. U.S. Environmental 
Protection Agency, Research Triangle Park, NC.
Mueller, S. F. and R. J. Valente, 1983. Meteorological Data 
Preprocessing Manual for the Air Resources Regional Pollution Assessment 
Model (Generic Version). TVA/ONR/AQB-83/13. Tennessee Valley Authority, 
Muscle Shoals, Al.
Mueller, S. F., R. J. Valente, T. L. Crawford, A. L. Sparks, and L. L. 
          Gautney, Jr., 1983. Description of the Air Resources Regional 
          Pollution Assessment (ARRPA) Model: September 1983. TVA/ONR/
          AQB-83/14. Tennessee Valley Authority, Muscle Shoals, AL.
Myers, T. C., and J. E. Langstaff, 1981. Application of Meteorological 
and Air Quality Modeling to the Las Vegas and Tampa Bay Areas. SAI 
Number 101-81EF81-108. Systems Applications, Inc., San Rafael, CA.
Pasquill, F., 1976. Atmospheric Dispersion Parameters in Gaussian Plume 
Modeling, Part II. EPA Publication No. EPA-600/4-76-030b. U.S. 
Environmental Protection Agency, Research Triangle Park, NC.
Seigneur, C., T. W. Tesche, P. M. Roth and M. K. Liu, 1983. On the 
Treatment of Point Source Emissions in Urban Air Quality Modeling. 
Atmospheric Environment, 17: 1655-1676.
Schere, K. L., and K. L. Demerjian, 1977. Calculation of Selected 
Photolytic Rate Constants over a Diurnal Range. EPA Publication No. EPA-
600/477-015. U.S. Environmental Protection Agency, Research Triangle 
Park, NC.
Turner, D. B., 1964. A Diffusion Model of An Urban Area. Journal of 
Applied Meteorology, 3: 83-91.
Turner, D. B., 1969. Workbook of Atmospheric Dispersion Estimates. PHS 
Publication No. 999-AP-26. U.S. Environmental Protection Agency, 
Research Triangle Park, NC.
Venkatram, A., 1980. Dispersion From an Elevated Source in a Corrective 
Boundary Layer. Atmospheric Environment, 14: 1-10.
Wesely, M. L., and B. B. Hicks, 1977. Some Factors That Affect the 
Deposition Rates of Sulfur Dioxide and Similar Gases on Vegetation. 
Journal of the Air Pollution Control Association, 27: 1110-1116.
Whitten, G. Z., J. P. Killus and H. Hogo, 1980. Modeling of Simulated 
Photo-chemical Smog with Kinetic Mechanisms. Volume 1. Final Report. EPA 
Publication No. EPA-600/3-80-028a. U.S. Environmental Protection Agency, 
Research Triangle Park, NC.
Beals, G. A., 1971. A Guide to Local Dispersion of Air Pollutants. Air 
Weather Service Technical Report 214 (April 1971).
Colenbrander, G. W., 1980. A Mathematical Model for the Transient 
Behavior of Dense Vapor Clouds, 3rd International Symposium on Loss 
Prevention and Safety Promotion in the Process Industries, Basel, 
Switzerland.

[[Page 1058]]

Green, A. E., R. P. Singhal and R. Venkateswar, 1980. Analytical 
Extensions of the Gaussian Plume Model. Journal of the Air Pollution 
Control Association, 30: 773-776.
Lamb, R. G., 1978. Numerical Simulation of Dispersion from an Elevated 
Point Source in the Convective Boundary Layer. Atmospheric Environment, 
12: 1297-1304.
MacCready, P. B., L. B. Baboolal and P. B. Lissaman, 1974. Diffusion and 
Turbulence Aloft Over Complex Terrain. Preprint Volume, AMS Symposium on 
Atmospheric Diffusion and Air Pollution, Santa Barbara, CA. American 
Meteorological Society, Boston, MA.
Misra, P. K., 1980. Dispersion from Tall Stacks into a Shoreline 
Environment. Atmospheric Environment, 14: 397-400.
Misra, P. K. and A. C. McMillan, 1980. On the Dispersion Parameters of 
Plumes from Tall Stacks in a Shoreline Environment. Boundary Layer 
Meteorology, 19: 175-185.
Misra, P. K. and S. Onlock, 1982. Modeling Continuous Fumigation of the 
Nanticoke Generating Station. Atmospheric Environment, 16: 479-489.
Slade, D. H., 1968. Meteorology and Atomic Energy, U.S. Atomic Energy 
Commission; 445 pp. (NTIS No. TID-24190)

   Appendix C to Appendix W of Part 51--Example Air Quality Analysis 
                                Checklist

                            C.0  Introduction

    This checklist recommends a standardized set of data and a standard 
basic level of analysis needed for PSD applications and SIP revisions. 
The checklist implies a level of detail required to assess both PSD 
increments and the NAAQS. Individual cases may require more or less 
information and the Regional Meteorologist should be consulted at an 
early stage in the development of a data base for a modeling analysis.
    At pre-application meetings between source owner and reviewing 
authority, this checklist should prove useful in developing a concensus 
on the data base, modeling techniques and overall technical approach 
prior to the actual analyses. Such agreement will help avoid 
misunderstandings concerning the final results and may reduce the later 
need for additional analyses.

               Example Air Quality Analysis Checklist \1\

    1. Source location map(s) showing location with respect to:
---------------------------------------------------------------------------

    \1\ The ``Screening Procedures for Estimating the Air Quality Impact 
of Stationary Sources, Revised'', October 1992 (EPA-450/R-92-019), 
should be used as a screening tool to determine whether modeling 
analyses are required. Screening procedures should be refined by the 
user to be site/problem specific. (Available from NTIS as document EPA-
450/R-92-019. NTIS number to be provided).
---------------------------------------------------------------------------

     Urban areas.\2\
---------------------------------------------------------------------------

    \2\ Within 50km or distance to which source has a significant 
impact, whichever is less.
---------------------------------------------------------------------------

     PSD Class I areas
     Nonattainment areas \2\
     Topographic features (terrain, lakes, river valleys, 
etc.)\2\
     Other major existing sources \2\
     Other major sources subject to PSD requirements
     NWS meteorological observations (surface and upper air)
     On-site/local meteorological observations (surface and 
upper air)
     State/local/on-site air quality monitoring locations.\2\
     Plant layout on a topographic map covering a 1km radius of 
the source with information sufficient to determine GEP stack heights.
    2. Information on urban/rural characteristics:
     Land use within 3km of source classified according to Auer 
(1978): Correlation of land use and cover with meteorological anomalies. 
Journal of Applied Meteorology, 17: 636-643.
     Population.
-->total
-->density
     Based on current guidance determination of whether the area 
should be addressed using urban or rural modeling methodology.
    3. Emission inventory and operating/design parameters for major 
sources within region of significant impact of proposed site (same as 
required for applicant)
     Actual and allowable annual emission rates (g/s) and 
operating rates.\3\
---------------------------------------------------------------------------

    \3\ Particulate emissions should be specified as a function of 
particulate diameter and density ranges.
---------------------------------------------------------------------------

     Maximum design load short-term emission rate (g/s).\3\
     Associated emissions/stack characteristics as a function of 
load for maximum, average, and nominal operating conditions if stack 
height is less than GEP or located in complex terrain. Screening 
analyses as footnoted on page 1 or detailed analyses, if necessary, must 
be employed to determine the constraining load condition (e.g., 50%, 
75%, or 100% load) to be relied upon in the short-term modeling 
analysis.

--Location, Universal Transverse Mercators (UTM's)
--Height of stack (m) and grade level above Mean Sea Level (MSL)
--Stack exit diameter (m)
--Exit velocity (m/s)
--Exit temperature ( deg.K)

     Area source emissions (rates, size of area, height of area 
source).\3\

[[Page 1059]]

     Location and dimensions of buildings (plant layout 
drawing).

--To determine GEP stack height
--To determine potential building downwash considerations for stack 
heights less than GEP

     Associated parameters.

--Boiler size (megawatts, pounds/hr. steam, fuel consumption, etc.)
--Boiler parameters (% excess air, boiler type, type of firing, etc.)
--Operating conditions (pollutant content in fuel, hours of operation, 
capacity factor, % load for winter, summer, etc.)
--Pollutant control equipment parameters (design efficiency, operation 
record, e.g., can it be bypassed?, etc.)

     Anticipated growth changes.
    4. Air quality monitoring data:
     Summary of existing observations for latest five years 
(including any additional quality assured measured data which can be 
obtained from any state or local agency or company).\4\
---------------------------------------------------------------------------

    \4\ See footnote 2 of this checklist.
---------------------------------------------------------------------------

     Comparison with standards.
     Discussion of background due to uninventoried sources and 
contributions from outside the inventoried area and description of the 
method used for determination of background (should be consistent with 
the Guideline on Air Quality Models).
    5. Meteorological data:
     Five consecutive years of the most recent representative 
sequential hourly National Weather Service (NWS) data, or one or more 
years of hourly sequential on-site data.
     Discussion of meteorological conditions observed (as 
applied or modified for the site-specific area, i.e., identify possible 
variations due to difference between the monitoring site and the 
specific site of the source).
     Discussion of topographic/land use influences.
    6. Air quality modeling analyses:
     Model each individual year for which data are available 
with a recommended model or model demonstrated to be acceptable on a 
case-by-case basis.

--Urban dispersion coefficients for urban areas
--Rural dispersion coefficients for rural areas

     Evaluate downwash if stack height is less than GEP.
     Define worst case meteorology.
     Determine background and document method.

--Long-term
--Short-term

     Provide topographic map(s) of receptor network with respect 
to location of all sources.
     Follow current guidance on selection of receptor sites for 
refined analyses.
     Include receptor terrain heights (if applicable) used in 
analyses.
     Compare model estimates with measurements considering the 
upper ends of the frequency distribution.
     Determine extent of significant impact; provide maps.
     Define areas of maximum and highest, second-highest impacts 
due to applicant source (refer to format suggested in Air Quality 
Summary Tables).

-->long-term
-->short-term

    7. Comparison with acceptable air quality levels:
     NAAQS.
     PSD increments.
     Emission offset impacts if nonattainment.
    8. Documentation and guidelines for modeling methodology:
     Follow guidance documents.

-->``Guideline on Air Quality Models, Revised'' (EPA-450/2-78-027R)
-->``Screening Procedures for Estimating the Air Quality Impact of 
Stationary Sources, Revised'' (EPA-450/R-92-019), 1992
-->``Guideline for Determination of Good Engineering Practice Stack 
Height (Technical Support Document for the Stack Height Regulations)'' 
(EPA-450/4-80-023R), 1985
-->``Ambient Monitoring Guidelines for PSD'' (EPA-450/4-87-007), 1987
-->``Requirements for Preparation, Adoption and Submittal of 
Implementation Plans: Approval and Promulgation of Implementation 
Plans'', 40 CFR Parts 40 and 51 (Prevention of Significant 
Deterioration), 1982

                                    Air Quality Summary--For New Source Alone                                   
          [ Pollutant: __________________\1\       __________________\2\       __________________\2\ ]          
----------------------------------------------------------------------------------------------------------------
                                                    Highest 2nd                     Highest 2nd                 
                                     Highest           high           Highest          high           Annual    
----------------------------------------------------------------------------------------------------------------
Concentration Due to Modeled     ...............  ..............  ..............  ..............  ..............
 Source (g/m\3\).                                                                                      
Background Concentration         ...............  ..............  ..............  ..............  ..............
 (g/m\3\).                                                                                             
    Total Concentration (g/m\3\).                                                                                                 
                                                                                                                
Receptor Distance (km) (or UTM   ...............  ..............  ..............  ..............  ..............
 Easting).                                                                                                      

[[Page 1060]]

                                                                                                                
Receptor Direction ( deg.) (or   ...............  ..............  ..............  ..............  ..............
 UTM Northing).                                                                                                 
Receptor Elevation (m).........  ...............  ..............  ..............  ..............  ..............
Wind Speed (m/s)...............  ...............  ..............  ..............  ..............  ..............
Wind Direction ( deg.).........  ...............  ..............  ..............  ..............  ..............
Mixing Depth (m)...............  ...............  ..............  ..............  ..............  ..............
Temperature ( deg.K)...........  ...............  ..............  ..............  ..............  ..............
Stability......................  ...............  ..............  ..............  ..............  ..............
Day/Month/Year of Occurrence...  ...............  ..............  ..............  ..............  ..............
----------------------------------------------------------------------------------------------------------------
                                                                                                                
Surface Air Data From ____________________    Surface Station Elevation (m) ____________________                
Anemometer Height Above Local Ground Level (m) ____________________                                             
Upper Air Data From ________________________________________________                                            
Period of Record Analyzed __________________________________________                                            
Model Used ________________________________________________________                                             
Recommended Model ______________________________________________                                                
----------------------------------------------------------------------------------------------------------------
\1\ Use separate sheet for each pollutant (SO2, TSP, CO, NOx, HC, Pb, Hg, Asbestos, etc.)                       
\2\ List all appropriate averaging periods (1-hr, 3-hr, 8-hr, 24-hr, 30-day, 90-day, etc.) for which an air     
  quality standard exists.                                                                                      



                                    Air Quality Summary--For All New Sources                                    
          [ Pollutant: __________________\1\       __________________\2\       __________________\2\ ]          
----------------------------------------------------------------------------------------------------------------
                                                    Highest 2nd                     Highest 2nd                 
                                     Highest           High           Highest          High           Annual    
----------------------------------------------------------------------------------------------------------------
Concentration Due to Modeled     ...............  ..............  ..............  ..............  ..............
 Source (g/m\3\).                                                                                      
Background Concentration         ...............  ..............  ..............  ..............  ..............
 (g/m\3\).                                                                                             
    Total Concentration (g/m\3\).                                                                                                 
                                                                                                                
Receptor Distance (km) (or UTM   ...............  ..............  ..............  ..............  ..............
 Easting).                                                                                                      
Receptor Direction ( deg.) (or   ...............  ..............  ..............  ..............  ..............
 UTM Northing).                                                                                                 
ptor Elevation (m).............  ...............  ..............  ..............  ..............  ..............
Wind Speed (m/s)...............  ...............  ..............  ..............  ..............  ..............
Wind Direction ( deg.).........  ...............  ..............  ..............  ..............  ..............
Mixing Depth (m)...............  ...............  ..............  ..............  ..............  ..............
Temperature ( deg.K)...........  ...............  ..............  ..............  ..............  ..............
Stability......................  ...............  ..............  ..............  ..............  ..............
Day/Month/Year of Occurrence...  ...............  ..............  ..............  ..............  ..............
----------------------------------------------------------------------------------------------------------------
                                                                                                                
Surface Air Data From ____________________    Surface Station Elevation (m) ____________________                
Anemometer Height Above Local Ground Level (m) ____________________                                             
Upper Air Data From ________________________________________________                                            
Period of Record Analyzed __________________________________________                                            
Model Used ________________________________________________________                                             
Recommended Model ______________________________________________                                                
----------------------------------------------------------------------------------------------------------------
\1\ Use separate sheet for each pollutant (SO2, TSP, CO, NOx, HC, Pb, Hg, Asbestos, etc.)                       
\2\ List all appropriate averaging periods (1-hr, 3-hr, 8-hr, 24-hr, 30-day, 90-day, etc.) for which an air     
  quality standard exists.                                                                                      

      

                                      Air Quality Summary--for All Sources                                      
          [ Pollutant: __________________\1\       __________________\2\       __________________\2\ ]          
----------------------------------------------------------------------------------------------------------------
                                                    Highest 2nd                     Highest 2nd                 
                                     Highest           high           Highest          high           Annual    
----------------------------------------------------------------------------------------------------------------
Concentration Due to Modeled     ...............  ..............  ..............  ..............  ..............
 Source (g/m\3\).                                                                                      
Background Concentration         ...............  ..............  ..............  ..............  ..............
 (g/m\3\).                                                                                             
    Total Concentration (g/m\3\).                                                                                                 
                                                                                                                
Receptor Distance (km) (or UTM   ...............  ..............  ..............  ..............  ..............
 Easting).                                                                                                      
Receptor Direction ( deg.) (or   ...............  ..............  ..............  ..............  ..............
 UTM Northing).                                                                                                 
Receptor Elevation (m).........  ...............  ..............  ..............  ..............  ..............
Wind Speed (m/s)...............  ...............  ..............  ..............  ..............  ..............
Wind Direction ( deg.).........  ...............  ..............  ..............  ..............  ..............
Mixing Depth (m)...............  ...............  ..............  ..............  ..............  ..............
Temperature ( deg.K)...........  ...............  ..............  ..............  ..............  ..............
Stability......................  ...............  ..............  ..............  ..............  ..............

[[Page 1061]]

                                                                                                                
Day/Month/Year of Occurrence...  ...............  ..............  ..............  ..............  ..............
----------------------------------------------------------------------------------------------------------------
                                                                                                                
Surface Air Data From ____________________    Surface Station Elevation (m) ____________________                
Anemometer Height Above Local Ground Level (m) ____________________                                             
Upper Air Data From ________________________________________________                                            
Period of Record Analyzed __________________________________________                                            
Model Used ________________________________________________________                                             
Recommended Model ______________________________________________                                                
----------------------------------------------------------------------------------------------------------------
\1\ Use separate sheet for each pollutant (SO2, TSP, CO, NOx, HC, Pb, Hg, Asbestos, etc.)                       
\2\ List all appropriate averaging periods (1-hr, 3-hr, 8-hr, 24-hr, 30-day, 90-day, etc.) for which an air     
  quality standard exists.                                                                                      


      

                                      Stack Parameters for Annual Modeling                                      
----------------------------------------------------------------------------------------------------------------
            Serving                                                                                 Building    
            emission                                                                               dimensions   
  Stack     rate for   Stack exit  Stack exit   Stack exit    Physical      GEP     Stack base -----------------
 (m) No.      each      diameter    velocity   temperture (     stack      stack    elevation                   
 length    pollutant       (m)        (m/s)       deg.K)     height (m)   ht. (m)      (m)       Height   Width 
             (g/s)                                                                                              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
----------------------------------------------------------------------------------------------------------------

      

                                   Stack Parameters for Short-Term Modeling\1\                                  
----------------------------------------------------------------------------------------------------------------
            Serving                                                                                 Building    
            emission                                                                               dimensions   
  Stack     rate for   Stack exit  Stack exit   Stack exit    Physical      GEP     Stack base -----------------
 (m) No.      each      diameter    velocity   temperture (     stack      stack    elevation                   
 length    pollutant       (m)        (m/s)       deg.K)     height (m)   ht. (m)      (m)       Height   Width 
             (g/s)                                                                                              
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
                                                                                                                
----------------------------------------------------------------------------------------------------------------
\1\ Separate tables for 50%, 75%, 100% of full operating condition (and any other operating conditions as       
  determined by screening or detailed modeling analyses to represent constraining operating conditions) should  
  be provided.                                                                                                  

[58 FR 38822, July 20, 1993, as amended at 60 FR 40468-40471, Aug. 9, 
1995]

     Appendix X to Part 51--Examples of Economic Incentive Programs

                       I. Introduction and Purpose

    This appendix contains examples of EIP's which are covered by the 
EIP rules. Program descriptions identify key provisions which 
distinguish the different model program types. The examples provide 
additional information and guidance on various types of regulatory 
programs collectively referred to as EIP's. The examples include 
programs involving stationary, area, and mobile sources. The definition 
section at 40 CFR 51.491 defines an EIP as a program which may include 
State established emission fees or a system

[[Page 1062]]

of marketable permits, or a system of State fees on sale or manufacture 
of products the use of which contributes to O3 formation, or any 
combination of the foregoing or other similar measures, as well as 
incentives and requirements to reduce vehicle emissions and vehicle 
miles traveled in the area, including any of the transportation control 
measures identified in section 108(f). Such programs span a wide 
spectrum of program designs.
    The EIP's are comprised of several elements that, in combination 
with each other, must insure that the fundamental principles of any 
regulatory program (including accountability, enforceability and 
noninterference with other requirements of the Act) are met. There are 
many possible combinations of program elements that would be acceptable. 
Also, it is important to emphasize that the effectiveness of an EIP is 
dependent upon the particular area in which it is implemented. No two 
areas face the same air quality circumstances and, therefore, effective 
strategies and programs will differ among areas.
    Because of these considerations, the EPA is not specifying one 
particular design or type of strategy as acceptable for any given EIP. 
Such specific guidance would potentially discourage States (or other 
entities with delegated authority to administer parts of an 
implementation plan) from utilizing other equally viable program designs 
that may be more appropriate for their situation. Thus, the examples 
given in this Appendix are general in nature so as to avoid limiting 
innovation on the part of the States in developing programs tailored to 
individual State needs.
    Another important consideration in designing effective EIP's is the 
extent to which different strategies, or programs targeted at different 
types of sources, can complement one another when implemented together 
as an EIP ``package.'' The EPA encourages States to consider packaging 
different measures together when such a strategy is likely to increase 
the overall benefits from the program as a whole. Furthermore, some 
activities, such as information distribution or public awareness 
programs, while not EIP's in and of themselves, are often critical to 
the success of other measures and, therefore, would be appropriate 
complementary components of a program package. All SIP emissions 
reductions credits should reflect a consideration of the effectiveness 
of the entire package.

    II. Examples of Stationary and Mobile Source Economic Incentive 
                               Strategies

    There is a wide variety of programs that fall under the general 
heading of EIP's. Further, within each general type of program are 
several different basic program designs. This section describes common 
types of EIP's that have been implemented, designed, or discussed in the 
literature for stationary and mobile sources. The program types 
discussed below do not include all of the possible types of EIP's. 
Innovative approaches incorporating new ideas in existing programs, 
different combinations of existing program elements, or wholly new 
incentive systems provide additional opportunities for States to find 
ways to meet environmental goals at lower total cost.

                      A. Emissions Trading Markets

    One prominent class of EIP's is based upon the creation of a market 
in which trading of source-specific emissions requirements may occur. 
Such programs may include traditional rate-based emissions limits 
(generally referred to as emissions averaging) or overall limits on a 
source's total mass emissions per unit of time (generally referred to as 
an emissions cap). The emissions limits, which may be placed on 
individual emitting units or on facilities as a whole, may decline over 
time. The common feature of such programs is that sources have an 
ongoing incentive to reduce pollution and increased flexibility in 
meeting their regulatory requirements. A source may meet its own 
requirements either by directly preventing or controlling emissions or 
by trading or averaging with another source. Trading or averaging may 
occur within the same facility, within the same firm, or between 
different firms. Sources with lower cost abatement alternatives may 
provide the necessary emissions reductions to sources facing more 
expensive alternatives. These programs can lower the overall cost of 
meeting a given total level of abatement. All sources eligible to trade 
in an emissions market are faced with continuing incentives to find 
better ways of reducing emissions at the lowest possible cost, even if 
they are already meeting their own emissions requirements.
    Stationary, area, and mobile sources could be allowed to participate 
in a common emissions trading market. Programs involving emissions 
trading markets are particularly effective at reducing overall costs 
when individual affected sources face significantly different emissions 
control costs. A wider range in control costs among affected sources 
creates greater opportunities for cost-reducing trades. Thus, for 
example, areas which face relatively high stationary source control 
costs relative to mobile source control costs benefit most by including 
both stationary and mobile sources in a single emissions trading market.
    Programs involving emissions trading markets have generally been 
designated as either emission allowance or emission reduction credit 
(ERC) trading programs. The Federal Acid Rain Program is an example of 
an emission allowance trading program, while

[[Page 1063]]

``bubbles'' and ``generic bubbles'' created under the EPA's 1986 
Emission Trading Policy Statement are examples of ERC trading. Allowance 
trading programs can establish emission allocations to be effective at 
the start of a program, at some specific time in the future, or at 
varying levels over time. An ERC trading program requires ERC's to be 
measured against a pre-established emission baseline. Allowance 
allocations or emission baselines can be established either directly by 
the EIP rules or by reference to traditional regulations (e.g., RACT 
requirements). In either type of program, sources can either meet their 
EIP requirements by maintaining their own emissions within the limits 
established by the program, or by buying surplus allowances or ERC's 
from other sources. In any case, the State will need to establish 
adequate enforceable procedures for certifying and tracking trades, and 
for monitoring and enforcing compliance with the EIP.
    The definition of the commodity to be traded and the design of the 
administrative procedures the buyer and seller must follow to complete a 
trade are obvious elements that must be carefully selected to help 
ensure a successful trading market that achieves the desired 
environmental goal at the lowest cost. An emissions market is defined as 
efficient if it achieves the environmental goal at the lowest possible 
total cost. Any feature of a program that unnecessarily increases the 
total cost without helping achieve the environmental goals causes market 
inefficiency. Thus, the design of an emission trading program should be 
evaluated not only in terms of the likelihood that the program design 
will ensure that the environmental goals of the program will be met, but 
also in terms of the costs that the design imposes upon market 
transactions and the impact of those costs on market efficiency.
    Transaction costs are the investment in time and resources to 
acquire information about the price and availability of allowances or 
ERC's, to negotiate a trade, and to assure the trade is properly 
recorded and legally enforceable. All trading markets impose some level 
of transaction costs. The level of transaction costs in an emissions 
trading market are affected by various aspects of the design of the 
market, such as the nature of the procedures for reviewing, approving, 
and recording trades, the timing of such procedures (i.e., before or 
after the trade is made), uncertainties in the value of the allowance or 
credit being traded, the legitimacy of the allowance or credit being 
offered for sale, and the long-term integrity of the market itself. 
Emissions trading programs in which every transaction is different, such 
as programs requiring significant consideration of the differences in 
the chemical properties or geographic location of the emissions, can 
result in higher transaction costs than programs with a standardized 
trading commodity and well-defined rules for acceptable trades. 
Transaction costs are also affected by the relative ease with which 
information can be obtained about the availability and price of 
allowances or credits.
    While the market considerations discussed above are clearly 
important in designing an efficient market to minimize the transaction 
costs of such a program, other considerations, such as regulatory 
certainty, enforcement issues, and public acceptance, also clearly need 
to be factored into the design of any emissions trading program.

                             B. Fee Programs

    A fee on each unit of emissions is a strategy that can provide a 
direct incentive for sources to reduce emissions. Ideally, fees should 
be set so as to result in emissions being reduced to the socially 
optimal level considering the costs of control and the benefits of the 
emissions reductions. In order to motivate a change in emissions, the 
fees must be high enough that sources will actively seek to reduce 
emissions. It is important to note that not all emission fee programs 
are designed to motivate sources to lower emissions. Fee programs using 
small fees are designed primarily to generate revenue, often to cover 
some of the administrative costs of a regulatory program.
    There can be significant variations in emission fee programs. For 
example, potential emissions could be targeted by placing a fee on an 
input (e.g., a fee on the quantity and BTU content of fuel used in an 
industrial boiler) rather than on actual emissions. Sources paying a fee 
on potential emissions could be eligible for a fee waiver or rebate by 
demonstrating that potential emissions are not actually emitted, such as 
through a carbon absorber system on a coating operation.
    Some fee program variations are designed to mitigate the potentially 
large amount of revenue that a fee program could generate. Although more 
complex than a simple fee program, programs that reduce or eliminate the 
total revenues may be more readily adopted in a SIP than a simple 
emission fee. Some programs lower the amount of total revenues generated 
by waiving the fee on some emissions. These programs reduce the total 
amount of revenue generated, while providing an incentive to decrease 
emissions. Alternatively, a program may impose higher per-unit fees on a 
portion of the emissions stream, providing a more powerful but targeted 
incentive at the same revenue levels. For example, fees could be 
collected on all emissions in excess of some fixed level. The level 
could be set as a percentage of a baseline (e.g., fees on emissions 
above some percentage of historical emissions), or as the

[[Page 1064]]

lowest emissions possible (e.g., fees on emissions in excess of the 
lowest demonstrated emissions from the source category).
    Other fee programs are ``revenue neutral,'' meaning that the 
pollution control agency does not receive any net revenues. One way to 
design a revenue-neutral program is to have both a fee provision and a 
rebate provision. Rebates must be carefully designed to avoid lessening 
the incentive provided by the emission fee. For example, a rebate based 
on comparing a source's actual emissions and the average emissions for 
the source category can be designed to be revenue neutral and not 
diminish the incentive.
    Other types of fee programs collect a fee in relation to particular 
activities or types of products to encourage the use of alternatives. 
While these fees are not necessarily directly linked to the total amount 
of emissions from the activity or product, the relative simplicity of a 
usage fee may make such programs an effective way to lower emissions. An 
area source example is a construction permit fee for wood stoves. Such a 
permit fee is directly related to the potential to emit inherent in a 
wood stove, and not to the actual emissions from each wood stove in use. 
Fees on raw materials to a manufacturing process can encourage product 
reformulation (e.g., fees on solvent sold to makers of architectural 
coatings) or changes in work practices (e.g., fees on specialty solvents 
and degreasing compounds used in manufacturing).
    Road pricing mechanisms are fee programs that are available to 
curtail low occupancy vehicle use, fund transportation system 
improvements and control measures, spatially and temporally shift 
driving patterns, and attempt to effect land usage changes. Primary 
examples include increased peak period roadway, bridge, or tunnel tolls 
(this could also be accomplished with automated vehicle identification 
systems as well), and toll discounts for pooling arrangements and zero-
emitting/low-emitting vehicles.

                    C. Tax Code and Zoning Provisions

    Modifications to existing State or local tax codes, zoning 
provisions, and land use planning can provide effective economic 
incentives. Possible modifications to encourage emissions reductions 
cover a broad span of programs, such as accelerated depreciation of 
capital equipment used for emissions reductions, corporate income tax 
deductions or credits for emission abatement costs, property tax waivers 
based on decreasing emissions, exempting low-emitting products from 
sales tax, and limitations on parking spaces for office facilities. 
Mobile source strategies include waiving or lowering any of the 
following for zero- or low-emitting vehicles: vehicle registration fees, 
vehicle property tax, sales tax, taxicab license fees, and parking 
taxes.

                              D. Subsidies

    A State may create incentives for reducing emissions by offering 
direct subsidies, grants or low-interest loans to encourage the purchase 
of lower-emitting capital equipment, or a switch to less polluting 
operating practices. Examples of such programs include clean vehicle 
conversions, starting shuttle bus or van pool programs, and mass transit 
fare subsidies. Subsidy programs often suffer from a variety of ``free 
rider'' problems. For instance, subsidies for people or firms who were 
going to switch to the cleaner alternative anyway lower the 
effectiveness of the subsidy program, or drive up the cost of achieving 
a targeted level of emissions reductions.

                   E. Transportation Control Measures

    The following measures are the TCM's listed in section 108(f):
    (i) Programs for improved public transit;
    (ii) Restriction of certain roads or lanes to, or construction of 
such roads or lanes for use by, passenger buses or high occupancy 
vehicles;
    (iii) Employer-based transportation management plans, including 
incentives;
    (iv) Trip-reduction ordinances;
    (v) Traffic flow improvement programs that achieve emission 
reductions;
    (vi) Fringe and transportation corridor parking facilities serving 
multiple-occupancy vehicle programs or transit service;
    (vii) Programs to limit or restrict vehicle use in downtown areas or 
other areas of emission concentration particularly during periods of 
peak use;
    (viii) Programs for the provision of all forms of high-occupancy, 
shared-ride services;
    (ix) Programs to limit portions of road surfaces or certain sections 
of the metropolitan area to the use of non-motorized vehicles or 
pedestrian use, both as to time and place;
    (x) Programs for secure bicycle storage facilities and other 
facilities, including bicycle lanes, for the convenience and protection 
of bicyclists, in both public and private areas;
    (xi) Programs to control extended idling of vehicles;
    (xii) Programs to reduce motor vehicle emissions, consistent with 
title II, which are caused by extreme cold start conditions;
    (xiii) Employer-sponsored programs to permit flexible work 
schedules;
    (xiv) Programs and ordinances to facilitate non-automobile travel, 
provision and utilization of mass transit, and to generally reduce the 
need for single-occupant vehicle travel, as part of transportation 
planning and development efforts of a locality, including programs and 
ordinances applicable to new shopping centers, special events, and other 
centers of vehicle activity;

[[Page 1065]]

    (xv) Programs for new construction and major reconstruction of 
paths, tracks or areas solely for the use by pedestrian or other non-
motorized means of transportation when economically feasible and in the 
public interest. For purposes of this clause, the Administrator shall 
also consult with the Secretary of the Interior; and
    (xvi) Programs to encourage the voluntary removal from use and the 
marketplace of pre-1980 model year light-duty vehicles and pre-1980 
model light-duty trucks.

[59 FR 16715, Apr. 7, 1994]

[[Page 1067]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  Redesignation Table
  List of CFR Sections Affected

[[Page 1069]]

........................................................................

            Material Approved for Incorporation by Reference

                      (Revised as of July 1, 1996)

  The Director of the Federal Register has approved under 5 U.S.C. 
552(a) and 1 CFR Part 51 the incorporation by reference of the following 
publications. This list contains only those incorporations by reference 
effective as of the revision date of this volume. Incorporations by 
reference found within a regulation are effective upon the effective 
date of that regulation. For more information on incorporation by 
reference, see the preliminary pages of this volume.


40 CFR, CHAPTER I (PART 51): SUBCHAPTER C--AIR PROGRAMS

ENVIRONMENTAL PROTECTION AGENCY


Environmental Protection Agency

  Office of Air Quality Planning and Standards, Research Triangle Park, 
  NC 27711
``Guidelines for Determining Best Available 
  Retrofit Technology for Coal-Fired Power Plants 
  and Other Existing Stationary Facilities'', 
  (1980), EPA 450/3-80-009b.......................             51.302(c)
``Guidelines on Air Quality Models (Revised)'' 
  (1986) and Supplement A (1987), EPA 450/2-78-
  027R............................................             51.166(l)
Copies may be obtained from: National Technical 
  Information Service, 5285 Port Royal Rd., 
  Springfield, VA 22161...........................


                                                                    Chap.

[[Page 1071]]



                    Table of CFR Titles and Chapters



                      (Revised as of June 30, 1996)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2--[Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Advisory Committee on Federal Pay (Parts 1400--1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700--1799)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3202)
      XXVI  Department of Defense (Part 3601)

[[Page 1072]]

       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
      LXIX  Tennessee Valley Authority (Part 7901)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6--[Reserved]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Consumer Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)

[[Page 1073]]

       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of Finance and Management, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  [Reserved]
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
     XXXIX  Economic Analysis Staff, Department of Agriculture 
                (Parts 3900--3999)
        XL  Economics Management Staff, Department of Agriculture 
                (Parts 4000--4099)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--499)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)

[[Page 1074]]

        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Meat and Poultry 
                Inspection, Department of Agriculture (Parts 300--
                399)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
        XI  United States Enrichment Corporation (Parts 1100--
                1199)
        XV  Office of the Federal Inspector for the Alaska Natural 
                Gas Transportation System (Parts 1500--1599)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Thrift Depositor Protection Oversight Board (Parts 
                1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

[[Page 1075]]

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Office of Commercial Space Transportation, Department 
                of Transportation (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

[[Page 1076]]

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development, International 
                Development Cooperation Agency (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Information Agency (Parts 500--599)

[[Page 1077]]

        VI  United States Arms Control and Disarmament Agency 
                (Parts 600--699)
       VII  Overseas Private Investment Corporation, International 
                Development Cooperation Agency (Parts 700--799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Board for International Broadcasting (Parts 1300--
                1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)

[[Page 1078]]

      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs and Section 202 Direct Loan Program) 
                (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3699)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

[[Page 1079]]

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Programs, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
      XXVI  Pension Benefit Guaranty Corporation (Parts 2600--
                2699)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600--699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)

[[Page 1080]]

       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)

[[Page 1081]]

       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
         V  Council on Environmental Quality (Parts 1500--1599)

[[Page 1082]]

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99)
            Subtitle F--Federal Travel Regulation System
       301  Travel Allowances (Parts 301-1--301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Parts 303-1--303-2)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

[[Page 1083]]

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services, 
                General Administration (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  ACTION (Parts 1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
      XXII  Christopher Columbus Quincentenary Jubilee Commission 
                (Parts 2200--2299)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
        IV  Federal Maritime Commission (Parts 500--599)

[[Page 1084]]

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  United States Information Agency (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        22  Small Business Administration (Parts 2200--2299)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)

[[Page 1085]]

        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Highway Administration, Department of 
                Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Regulatory Agencies (Fishing and 
                Whaling) (Parts 300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 1086]]

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            Acts Requiring Publication in the Federal Register
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 1087]]





           Alphabetical List of Agencies Appearing in the CFR



                      (Revised as of June 30, 1996)

                                                  CFR Title, Subtitle or
                     Agency                               Chapter

ACTION                                            45, XII
Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Committee on Federal Pay                 5, IV
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Analysis Staff                         7, XXXIX
  Economic Research Service                       7, XXXVII
  Economics Management Staff                      7, XL
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Finance and Management, Office of               7, XXX
  Food and Consumer Service                       7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alaska Natural Gas Transportation System, Office  10, XV
     of the Federal Inspector
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII

[[Page 1088]]

American Battle Monuments Commission              36, IV
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Arms Control and Disarmament Agency, United       22, VI
     States
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee        45, XXII
     Commission
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Commerce Department                               44, IV
  Census Bureau                                   15, I`
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation, Office of        14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51

[[Page 1089]]

  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Defense Mapping Agency                          32, I
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Mapping Agency                            32, I
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Analysis Staff                           7, XXXIX
Economic Development Administration               13, III
Economics Management Staff                        7, XL
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Enrichment Corporation, United States             10, XI
Environmental Protection Agency                   40, I
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV

[[Page 1090]]

Farm Service Agency                               7, VII, XVIII
Farmers Home Administration                       7, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
Federal Claims Collection Standards               4, II
Federal Communications Commission                 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II; 49, III
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Information Resources Management          41, Subtitle E, Ch. 201
     Regulations
Federal Inspector for the Alaska Natural Gas      10, XV
     Transportation System, Office of
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  29, XXVII
Federal Pay, Advisory Committee on                5, IV
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, Subtitle C
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Finance and Management, Office of                 7, XXX
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Fishing and Whaling, International Regulatory     50, III
     Agencies
Food and Drug Administration                      21, I
Food and Consumer Service                         7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Information Resources Management        41, Subtitle E, Ch. 201
     Regulations
[[Page 1091]]

  Federal Property Management Regulations System  41, 101, 105
  Federal Travel Regulation System                41, Subtitle F
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Travel Allowances                               41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes Pilotage                              46, III
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Agency, United States                 22, V
  Federal Acquisition Regulation                  48, 19
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V

[[Page 1092]]

  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  Mines, Bureau of                                30, VI
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, Agency for             22, II
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
  International Development, Agency for           22, II; 48, 7
  Overseas Private Investment Corporation         5, XXXIII; 22, VII
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Regulatory Agencies (Fishing and    50, III
     Whaling)
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Relations and Cooperative      29, II
       Programs, Bureau of
  Labor-Management Programs, Office of            29, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Relations and Cooperative        29, II
     Programs, Bureau of
Labor-Management Programs, Office of              29, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII

[[Page 1093]]

  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National Archives and Records Administration      36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National and Community Service, Corporation for   45, XXV
National Council on Disability                    34, XII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX

[[Page 1094]]

Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XXVI
Personnel Management, Office of                   5, I; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Prisons, Bureau of                                28, V
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
  Federal Acquisition Regulation                  48, 22
Smithsonian Institution                           36, V
Social Security Administration                    20, III
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Depositor Protection Oversight Board       12, XV
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of
  Coast Guard                                     33, I; 46, I; 49, IV
  Commercial Space Transportation, Office of      14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II; 49, III
  Federal Railroad Administration                 49, II

[[Page 1095]]

  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
Transportation, Office of                         7, XXXIII
Travel Allowances                                 41, 301
Treasury Department                               5, XXI; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
United States Enrichment Corporation              10, XI
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII


[[Page 1097]]



                                     

                                     



                           Redesignation Table



 Table 1--Redesignation Table and Master Plan to Restructure 40 CFR Part
                                   51                                   
------------------------------------------------------------------------
   New designation section No. and      Old designation section No. and 
                title                                title              
------------------------------------------------------------------------
                                                                        
                   Subpart F  Procedural Requirements                   
                                                                        
------------------------------------------------------------------------
51.100  Definitions                   51.1  Definitions.                
51.101  Stipulations                  51.2  Stipulations.               
51.102  Public hearings               51.4  Public hearings.            
51.103  Submission of plans           51.5  Submission of plans.        
51.104  Revisions                     51.6  Revisions.                  
                                      51.34  Variances.                 
51.105  Approval of plans             51.8  Approval of plans.          
                                                                        
                       Subpart G  Control Strategy                      
                                                                        
------------------------------------------------------------------------
51.110  Attainment and Maintenance    51.10  General requirements       
 of National Standards                 (portion).                       
                                      51.12  Control strategy: General  
                                       (portion).                       
                                      51.13  Control strategy: SOx & PM 
                                       (portion).                       
                                      51.14  Control strategy: CO, HC,  
                                       Ox & NO2 (portion).              
                                      51.80  Demonstration of           
                                       attainment: Pb (portion).        
51.111  Description of control        51.14  Control strategy: CO, HC,  
 measures                              Ox, & NO2 (portion).             
                                      51.87  Measures: Pb.              
51.112  Demonstration of adequacy     51.13  Control strategy: SOx & PM 
                                       (portion).                       
                                      51.14  Control strategy: CO, HC,  
                                       Ox, & NO2 (portion).             
                                      51.80  Demonstration of           
                                       attainment: Pb (portion).        
                                      51.82  Air quality data (portion).
51.113  Time period for               51.10  General requirements       
 demonstration of adequacy             (portion).                       
                                      51.81  Emissions data: Pb         
                                       (portion).                       
51.114  Emissions data and            51.13  Control strategy: SOx & PM 
 projections                           (portion).                       
                                      51.14  Control strategy: CO, HC,  
                                       Ox, & NO2 (portion).             
                                      51.81  Emissions data: Pb         
                                       (portion).                       
51.115  Air quality data and          51.13  Control strategy : SOx & PM
 projections                           (portion).                       
                                      51.14  Control strategy: CO, HC,  
                                       Ox, & NO2 (portion).             
                                      51.82  Air quality data: Pb       
                                       (portion).                       
51.116  Data availability             51.10  General requirements       
                                       (portion).                       
                                      51.88  Data availability: Pb.     
51.117  Additional provisions for     51.80  Demonstration of           
 lead                                  attainment: Pb (portion).        
                                      51.81  Emissions data: Pb         
                                       (portion).                       
                                      51.82  Air quality data: Pb       
                                       (portion).                       
                                      51.83  Certain urbanized areas:   
                                       Pb.                              
                                      51.84  Areas around significant   
                                       point source: Pb.                
                                      51.85  Other areas: Pb.           
                                      51.86  Data bases: Pb (portion).  
51.118  Stack height provisions       51.12  Control strategy: General  
                                       (portion).                       
51.119  Intermittent control systems  51.12  Control strategy: General  
                                       (portion).                       
51.120-51.135  Reserved for new                                         
 requirements as set forth in the                                       
 Act                                                                    
51.136-51.140  Reserved for                                             
 maintenance of PSD increment                                           
 provisions                                                             
                                                                        
Subpart H  Prevention of Air          51.3                              
 Pollution Emergency Episodes (Secs.  51.16  Classification of regions. 
 51.150 to 51.159)                    Prevention of air pollution       
                                       emergency episodes.              
                                                                        
------------------------------------------------------------------------
                                                                        
Subpart I  Review of New Sources and  51.18                             
 Modifications (Secs.  51.160 to      51.24  Review of new sources and  
 51.189                                modifications.                   
                                      Prevention of significant         
                                       deterioration.                   
                                                                        
------------------------------------------------------------------------
                                                                        
Subpart J  Air Quality Surveillance   51.17  Air quality surveillance.  
 (Secs.  51.190 to 51.209)                                              
 (Promulgated 5/10/79)                                                  
                                                                        
------------------------------------------------------------------------
                                                                        
Subpart K  Source surveillance        51.19  Source surveillance.       
 (Secs.  51.210 to 51.229)                                              
                                                                        
------------------------------------------------------------------------
                                                                        
Subpart L  Legal Authority (Secs.     51.11  Legal authority.           
 51.230 to 51.239)                                                      
                                                                        
------------------------------------------------------------------------
                                                                        
Subpart M  Intergovernmental          51.21  Intergovernmental          
 consultation (Secs.  51.240 to        cooperation.                     
 51.259) (Promulgated 6/18/79)                                          
                                                                        
------------------------------------------------------------------------
                                                                        
Subpart N  Compliance Schedules       51.15  Compliance schedules.      
 (Secs.  51.260 to 51.279)                                              
                                                                        
------------------------------------------------------------------------
                                                                        

[[Page 1098]]

                                                                        
           Subpart O  Miscellaneous Plan Content Requirements           
                                                                        
------------------------------------------------------------------------
  51.280  Resources                   51.20  Resources.                 
  51.281  Copies of rules and         51.22  Rules and regulations.     
   regulations                                                          
  51.282  Reserved                                                      
  51.283  Reserved                                                      
  51.284  Public notification                                           
   (Promulgated 5/10/79)                                                
                                                                        
Subpart P  Visibility protection                                        
 (Secs.  51.300 through 51.319)                                         
 (Promulgated 12/2/80)                                                  
                                                                        
------------------------------------------------------------------------
                                                                        
Subpart Q  Reports (Secs.  51.320     51.7  Reports.                    
 through 51.339)                                                        
                                                                        
------------------------------------------------------------------------
Subpart R  Extensions (Secs.  51.340  51.30  Request for 2-year         
 through 51.369)                       extension.                       
                                      51.31  Request for 18-month       
                                       extension.                       
Revoked                               51.1  Definitions (obsolete       
                                       portions).                       
                                      51.3  Classification of regions   
                                       (as applicable to control        
                                       strategies).                     
                                      51.4  Public hearings (obsolete   
                                       portions).                       
                                      51.5  Submission of plans;        
                                       preliminary review of plans      
                                       (obsolete portions).             
                                      51.23  Exceptions.                
                                      51.32  Request for 1-year         
                                       postponement.                    
                                      51.33  Headings and appeals       
                                       relating to request for one year 
                                       postponement.                    
                                      51.326  Reportable revisions.     
                                      51.328  Plan prescribed actions.  
                                      Appendix A  Air quality           
                                       estimation.                      
                                      Appendix B  Examples of emission  
                                       limitations attainable with      
                                       reasonably available control     
                                       technology.                      
                                      Appendix C  Major pollutant       
                                       source.                          
                                      Appendix D  Pollutant emissions   
                                       inventory summary.               
                                      Appendix E  Point source data.    
                                      Appendix F  Area source data.     
                                      Appendix G  Emission inventory    
                                       summary.                         
                                      Appendix H  Air quality data      
                                       summary.                         
                                      Appendix K  Control agency        
                                       functions.                       
                                      Appendix M  Transportation Control
                                       Supporting Data Summary.         
                                      Appendix N  Emissions Reductions  
                                       Achievable Through Inspection,   
                                       Maintenance and Retrofit of Light
                                       Duty Vehicles.                   
                                      Appendix O  [Untitled].           
                                      Appendix R  Agency functions for  
                                       air quality maintenance area     
                                       plans.                           
------------------------------------------------------------------------
NA--Not applicable.                                                     


                      Table 2--Redisignation Table                      
------------------------------------------------------------------------
              Old section                          New section          
------------------------------------------------------------------------
51.1(a) through (nn)  All paragraph      51.100(a-nn).                  
 designations are the same and have the                                 
 same paragraph designation except                                      
 those which are listed below.                                          
51.1(a)                                  51.100(a)  New citations added.
51.1(j)                                  51.100(j). Definition of local 
                                          agency deleted. 51.1 includes 
                                          two definitions of ``local    
                                          agencies.'' EPA considers     
                                          51.100(g) a better definition.
                                          A new 51.100(j) is added which
                                          defines the term ``plan.''    
51.1(k)(1)                               51.100(k)(1) The term          
                                          ``Volatile Organic Compound'' 
                                          (VOC) replaces the term       
                                          ``Hydrocarbons.''             
51.1(k)(1)(i,ii)                         51.1 Point source definition   
                                          updated.                      
51.1(k)(1)(iii)                          Unnecessary, Appendix C is     
                                          deleted in this action.       
51.1(1)                                  51.1Reference to Appendix D    
                                          removed; reference to         
                                          inventory techniques updated. 
51.1(m)                                  51.100(m) revised.             
51.1(o)                                  51.100(o) revised.             
51.2                                     51.101.                        
51.3                                     51.50, streamlined.            
51.4  All paragraphs are the same and    51.102.                        
 are restructured with the same                                         
 paragraph numbers except as noted                                      
 below.                                                                 
51.4(a), (e)                             51.102(a), (e) rewritten.      
51.4(b)(4)                               51.102(b)(4) rewritten.        
51.4(b)(6)                               Unnecessary, redundant.        
51.4(f)                                  Deleted, obsolete.             
51.5  All paragraphs are the same and    51.103.                        
 restructured with the same paragraph                                   
 numbers except as noted below                                          
51.5(a)                                  Rewritten; ``Note'' deleted.   
51.5(d), (e)                             Deleted, redundant.            
51.6                                     51.104.                        

[[Page 1099]]

                                                                        
51.6(b) through (f)                      51.104 (b) through (f)         
                                          rewritten.                    
51.8                                     51.105.                        
51.10(a)                                 51.110(g) rewritten.           
51.10(b)                                 51.110(b), (d).                
51.10(c)                                 51.110(c)(1), (d).             
51.10(d)                                 51.110(e), revised.            
51.10(e)                                 51.116(c).                     
51.11(a)                                 51.230.                        
51.11a(1-6)                              51.230(a) through (f).         
51.11(b)                                 Unnecessary provisions for     
                                          transportation plans,         
                                          obsolete.                     
51.11(c)                                 51.231(a).                     
51.11(d)(1)                              51.231(b).                     
51.11(d)(2)                              51.231(c).                     
51.11(e)                                 51.232(a).                     
51.11(f)                                 51.232(b).                     
51.12(a)                                 51.110(a).                     
51.12(b)                                 51.110(a), (c).                
51.12(c)                                 Deleted, redundant.            
51.12(d)                                 51.110(f).                     
51.12(e)                                 51.110(h).                     
51.12(f)                                 51.110(i).                     
51.12(g)                                 51.110(j).                     
51.12(h)                                 51.110(k).                     
51.12(i)                                 51.110(l).,                    
51.12(j)                                 51.118(a).                     
51.12(k)                                 51.118(b).                     
51.12(l)                                 51.118(c).                     
51.12(m)                                 51.119(a).                     
51.12(n)                                 51.119(b).                     
51.13(a)                                 51.110(b).                     
51.13(b)                                 51.110(c).                     
51.13(c)                                 51.115(c).                     
51.13(d)                                 Deleted, example region        
                                          approach.                     
51.13(e)(1) phrase ``in the example      Deleted, example region        
 regions to which it applies.''           approach.                     
Rest of 51.13(e)(1)                      51.112(a).                     
51.13(e)(2)(i,ii)                        Air Programs Reports and       
                                          Guidelines Index.             
51.13(e)(2)(iii)                         51.112(a) and (b).             
51.13(e)(3)(i)                           51.112(b)(4), Air Programs     
                                          Reports and Guidelines Index. 
51.13(e)(3)(ii)                          51.114(a).                     
51.13(e)(3)(iii)                         51.112(b)(3), rewritten.       
51.13(f,g)                               51.114(a), 51.115(a) Portions  
                                          related to example region     
                                          approach deleted.             
51.14(a)(1)                              51.110(a), Rewritten, reference
                                          to priority of regions        
                                          deleted.                      
51.14(a)(2)                              51.111.                        
51.14(b)                                 Unnecessary.                   
51.14(c)(1)                              51.112(a).                     
51.14(c)(2) and (5) through (7)          Air Programs Reports and       
                                          Guidelines Index.             
51.14(c)(5)                              51.112(a).                     
51.14(c)(6)                              51.112(b)(4).                  
51.14(c)(8)                              51.115(d).                     
51.14(c)(9)                              Reference to hydrocarbon       
                                          standard which has been       
                                          revoked, deleted.             
51.14(d)                                 51.114(a).                     
51.14(e)                                 51.115.                        
51.14(f)                                 Air Programs Reports and       
                                          Guidelines Index.             
51.14(g)                                 Obsolete.                      
51.14(h)                                 Air Programs Reports and       
                                          Guidelines Index.             
51.15(a)(1)                              51.260(a), (b).                
51.15(b)(1)                              51.261(a).                     
51.15(b)(2)                              51.261(b).                     
51.15(c)                                 51.262(a).                     
51.16(a)                                 51.151.                        
51.16(b)                                 51.152(a).                     
51.16(d)                                 Deleted, obvious.              
51.16(e)                                 51.152(b).                     
51.16(f)                                 Obsolete.                      
51.16(g)                                 51.152(c).                     
51.16(h)                                 51.152(d).                     
51.18(a)                                 51.160(a).                     
51.18(b)                                 51.160(b).                     
51.18(c)                                 51.160(c).                     
51.18(d)                                 51.160(d).                     
51.18(e)                                 51.162.                        
51.18(f)                                 51.160(e).                     
51.18(g)                                 51.163.                        
51.18(h)                                 51.161.                        
51.18(i)                                 Obsolete, refers to Appendix O,
                                          guidance on indirect source   
                                          review.                       
51.18(j)                                 51.165(a).                     
51.18(k)                                 51.165(b).                     
51.18(l)                                 51.164.                        
51.19 (Introduction)                     51.210.                        
51.19(a)                                 51.211.                        
51.19(b), (c)                            51.212.                        
51.19(d)                                 51.213.                        
51.19(e)                                 51.214(a).                     
51.19(e)(1)                              51.214(b).                     
51.19(e)(2)                              51.214(c).                     
51.19(e)(3)                              51.214(d).                     
51.19(e)(4)                              51.214(e).                     
51.19(e)(5)                              51.214(f).                     
51.19e(6)                                Obsolete, deleted.             
51.20                                    51.280.                        
51.22                                    51.281.                        
51.23                                    Unnecessary.                   
51.24                                    51.166.                        
51.30                                    51.340.                        
51.31                                    51.341.                        
51.32                                    Deleted, no longer in Clean Air
                                          Act (CAA).                    
51.33                                    Deleted, no longer in CAA.     
51.34                                    51.104(g).                     
51.80(a)                                 51.110(b), 51.118(a).          
51.80(b)                                 51.112(a).                     
51.80(c)                                 51.112(b).                     
51.81(a)                                 51.117(e).                     
51.81(b)                                 51.113(a).                     
51.81(c)                                 51.112(b)(1).                  
51.81(d)                                 51.114(c).                     
51.82(a)                                 51.115(b), 51.117(d)(1).       
51.82(b)                                 51.117(b)(3).                  
51.82(c)                                 51.112(b)(3).                  
51.83                                    51.117(c)(1).                  
51.84                                    51.117(a), (c)(2).             
51.85                                    51.117(c)(3).                  
51.86(a)                                 51.112(b)(5).                  
51.86(b)                                 51.117(e)(2).                  
51.86(c)                                 51.117(d)(1,2).                
51.87                                    51.111.                        
51.88                                    51.116(a), (b).                
51.326, 51.328                           Deleted, report requirement no 
                                          longer needed.                
------------------------------------------------------------------------


[[Page 1101]]

nnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn|N


































List of CFR Sections Affected


All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, and 1973-1985'' which is published in 
seven separate volumes.

                                  1986

40 CFR
                                                                   51 FR
                                                                    Page
Chapter I
4  Revised..........................................................7016
6.103  (a)(4), (b)(2), (c)(2), (e) and (f) revised.................32609
6.105  Heading and (d) revised.....................................32610
6.107  (b) revised; (d), (e) and (f) added.........................32610
6.108  Heading and (d) revised.....................................32611
6.400  (d), (e) and (f) revised....................................32611
6.402  (b) revised.................................................32611
6.502  (b)(4) added................................................32611
6.503  (b) revised.................................................32611
6.505  (a), (b) and (c) revised; (d) removed; (e) redesignated as 
        (d) and revised............................................32611
6.506  (a), (b) introductory text and (4) revised..................32612
6.507  (a), (b) and (d)(3) revised.................................32612
6.508  Revised.....................................................32612
6.511  (c) revised.................................................32613
6.513  (a) introductory text revised...............................32613
6.514  (a)(3), (9), and (10), and (b) revised; (a)(11) added.......32613
6.602  (b) amended.................................................32613
6.603  Amended.....................................................32613
6.800  Amended.....................................................32613
6.900--6.905 (Subpart I)  Nomenclature change......................32613
10.1  Revised......................................................25832
10.2  (c) revised..................................................25832
10.5  Revised......................................................25832
10.9  Amended......................................................25832
10.11  (a) designation removed; (b) removed........................25832
14  Revised........................................................25832
16.13  Added.......................................................24146
16.14  Revised.....................................................24148
30.510  (g) revised.................................................6353
30.540  (b) revised.................................................6353
30.802  (b) and (c) revised.........................................6353
30.1230  (a) revised................................................6353
30  Appendix E added................................................6353
33.250  Class deviation............................................28710
33.305  Class deviation............................................28710
33.310  Class deviation............................................28710
51  Nomenclature change............................................40661
51.1--51.8 (Subpart A)  Removed....................................40661
51.1  (nn) added...................................................11418
    Petitions denied...............................................15885
51.10  Removed.....................................................40661
51.11  Removed.....................................................40661
51.12  (m) and (n) added...........................................11418
    Petitions denied...............................................15885
    (e) through (i) redesignated as 51.110 (h) through (l); 
remainder of 51.12 removed.........................................40661
51.13--51.16  Removed..............................................40661
51.18  Petitions denied............................................15885
51.24  (l) revised.................................................32178
    Technical correction...........................................34086
    Redesignated as 51.166.........................................40661
51.30--51.34 (Subpart C)  Removed..................................40661
51.40  (a) and (b) amended.........................................40675
51.41  Amended.....................................................40675
51.54  (e) amended.................................................40675

[[Page 1102]]

51.61  (e) amended.................................................40675
51.80--51.88 (Subpart E)  Removed..................................40661
51.100--51.105 (Subpart F)  Added..................................40661
51.110--51.119 (Subpart G)  Added..................................40665
51.110  (h) through (l) redesignated from 51.12 (e) through (i)....40661
51.150--51.153 (Subpart H)  Added..................................40668
51.160--51.166 (Subpart I)  Heading added..........................40669
51.160--51.165  Added..............................................40669
51.166  Redesignated from 51.24....................................40661
    (a)(5), (b)(2)(iii)(e) (1) and (2), (f), (14)(i)(b) and 
(ii)(a), (15)(ii)(b), and (17), (f)(3), (g)(2)(i), and (i)(9) 
amended............................................................40675
51.210--51.214 (Subpart K)  Added..................................40673
51.230--51.232 (Subpart L)  Added..................................40673
51.260--51.262 (Subpart N)  Added..................................40674
41.280  Added......................................................40674
41.281  Added......................................................40674
51.340--51.341 (Subpart R)  Added..................................40674
51.327  Amended....................................................40675
51.328  Removed....................................................40675
51  Appendixes A through H, K, M, O, and R removed; Appendixes L, 
        P, and S amended...........................................40675

                                  1987

40 CFR
                                                                   52 FR
                                                                    Page
Chapter I
1.37  (a) introductory text and (e) revised........................30359
1.45  (b) revised..................................................30360
1.47  (d) added....................................................30360
1.49  (g) added....................................................30360
4  Revised; eff. 4-2-89............................................48023
12  Added..........................................................30606
22  Authority citation revised.....................................30673
22.01  (a)(5) revised; (a)(6) added; interim.......................30673
22.38  Added; interim..............................................30673
50.6  Revised; eff. 7-31-87........................................24663
    Technical correction...........................................26401
50.7  Removed; eff. 7-31-87........................................24664
    Technical correction...........................................26401
50  Appendix G amended; Appendix J added; eff. 7-31-87.............24664
    Appendix K  Added; eff. 7-31-87................................24667
    Technical correction...........................................26401
    Appendix K corrected....................................29382, 31701
    Appendix J corrected...........................................29647
51  Authority citation revised.....................................24712
    State implementation plan attainment groups....................29383
51.100  (oo) through (ss) added; eff. 7-31-87......................24712
51.151  Amended; eff. 7-31-87......................................24731
51.165  (a)(1)(x) amended; and (b) revised; eff. 7-31-87...........24713
    Correctly designated...........................................29386
51.166  (a)(6)(i) and (i)(8)(i)(c), (f), (h), and (l) revised; 
        (b)(23)(i) and (c) table and (p)(4) table amended; (i)(10) 
        added; eff. 7-31-87........................................24713
    (i)(10) corrected..............................................29386
51.322  (a)(1) and (b)(1) revised; eff. 7-31-87....................24714
51.323  (a)(1) and (2) revised; (a)(3) added; eff. 7-31-87.........24714
51  Appendixes L and S amended; eff. 7-31-87.......................24714
    Appendix S corrected...........................................29386

                                  1988

40 CFR
                                                                   53 FR
                                                                    Page
Chapter I
2  Authority citation revised........................................215
2.100  (b) revised; (e) through (k) added............................216
2.101  (d) added.....................................................216
2.113  (d), (e), and (f) revised.....................................216
2.116  Revised.......................................................217
2.118  (a)(7) revised................................................217
2.120  Revised.......................................................217
2.121  Added.........................................................219
13  Added..........................................................37270
22  Authority citation revised......................................5374
22.01  (a)(4) revised........................................5374, 12263
23  Authority citation revised.....................................29322
23.1  (c) added....................................................29322
23.12  Added.......................................................29322
24  Added..........................................................12263
27  Added..........................................................15182
30  Heading revised; eff. 10-1-88...................................8076

[[Page 1103]]

30.302  (d) (2) and (3) removed; eff. 10-1-88.......................8076
30.501  (a)(2) removed; (a)(3) redesignated as (a)(2); eff. 10-1-
        88..........................................................8076
30.503  (e), (g) and (h) removed; (f) redesignated as (e); eff. 
        10-1-88.....................................................8076
30.505  (b)(2) removed; (b)(3) redesignated as (b)(2); eff. 10-1-
        88..........................................................8076
30.540  (b) removed; (c) redesignated as (b); eff. 10-1-88..........8076
30  Appendix E redesignated as Part 31 Appendix A; eff. 10-1-88.....8076
31  Added; eff. 10-1-88.......................................8075, 8087
31.6  (c)(1) and (d) added; eff. 10-1-88............................8075
31.13  Added; eff. 10-1-88..........................................8075
31.36  (c)(5), (j) and (k) added; eff. 10-1-88......................8075
31.43  (a)(3)(i) added; eff. 10-1-88................................8076
31.45  Added; eff. 10-1-88..........................................8076
31.70 (Subpart F)  Added; eff. 10-1-88..............................8076
31  Appendix A redesignated from Part 30 Appendix E; eff. 10-1-88 
                                                                    8076
32  Revised; nomenclature change............................19196, 19204
32.105  (g)(3), (p)(2), (t)(3), (w), and (x) added; eff. 10-1-88 
                                                                   19196
32.110  (a)(2)(iv)(A) added; eff. 10-1-88..........................19197
32.115  (d) added; eff. 10-1-88....................................19197
32.200  (c)(5)(i) added; eff. 10-1-88..............................19197
32.215  (a) added; eff. 10-1-88....................................19197
32.313  (a)(1) added; eff. 10-1-88.................................19197
32.315  (a)(1) added; eff. 10-1-88.................................19197
32.330  Added; eff. 10-1-88........................................19197
32.335  Added; eff. 10-1-88........................................19197
32.412  (a)(1) added; eff. 10-1-88.................................19197
32.425  Added; eff. 10-1-88........................................19197
32.430  Added; eff. 10-1-88........................................19197
32  Appendix B amended; eff. 10-1-88...............................19197
33.110  (e)(5) removed; (e)(6) redesignated as (e)(5); eff. 10-1-
        88..........................................................8077
33.210  (f) removed; (g) and (h) redesignated as (f) and (g); eff. 
        10-1-88.....................................................8077
33.250  Class deviation.............................................9443
33.305  Class deviation.............................................9443
33.310  Class deviation.............................................9443
33.705--33.715 (Subpart C)  Removed; eff. 10-1-88...................8077
33.905--33.915 (Subpart E)  Removed; eff. 10-1-88...................8077
33.1021  Removed; eff. 10-1-88......................................8077
33.1030  Amended; eff. 10-1-88......................................8077
35  Class deviation................................................15820
35.100--35.605 (Subpart A)  Authority citation revised.............37408
35.105  Amended....................................................37408
35.115  (e) and (f) revised........................................37409
35.155  (c) added..................................................37409
35.400  Revised....................................................37409
35.405  Existing text designated as (a); (b) added.................37409
35.410  (c) added..................................................37409
35.415  Added......................................................37409
35.450  Revised....................................................37409
35.455  Existing text designated as (a); (b) added.................37409
35.460  Revised....................................................37409
35.465  Added......................................................37409
35.4000--35.4130 (Subpart M)  Added; interim........................9748
50  Petition denied.........................................52698, 52705
51  Policy statement.................................................480
    Petition denied................................................52705
51.166  (l) revised..................................................396
    (b)(3)(iv), (13)(i), (ii) (a) and (b), (14)(i), (15)(i), 
(ii)(a), (c) tables, (f)(1)(v), (4)(i), and (p)(4) tables revised; 
(b)(14)(ii) redesignated as (b)(14)(iii); new (b)(14)(ii), 
(i)(11), and OMB number added; (p)(4) amended; eff. 10-17-89.......40670

                                  1989

40 CFR
                                                                   54 FR
                                                                    Page
Chapter I
4  Regulations at 52 FR 48023 confirmed; see regulation codified 
        at 49 CFR 24................................................8912
22  Authority citation revised....................................12371,
                                                            21176, 24112
22.01  (a)(4) revised..............................................12371
    (a)(6) revised; (a) (7) and (8) added; interim.................21176

[[Page 1104]]

22.39  Added; interim..............................................21176
22.40  Added; interim..............................................21176
22.41  Added; eff. 7-5-89..........................................24112
32  Heading and authority citation revised..........................4961
    Technical correction............................................6363
32.305  (c) (3) and (4) amended; (c)(5) added; interim..............4962
32.320  (a) revised; interim........................................4962
32.600--32.630 (Subpart F)  Added; interim..........................4962
32  Appendix C added; interim.......................................4962
35  Authority citation removed......................................4135
35.100--35.605 (Subpart A)  Authority citation revised......14357, 40368
35.105  Amended; interim...........................................14357
35.115  (b) and (d) revised; (e) through (i) redesignated as (g) 
        through (k); new (e) and (f) added; interim................14357
    (e) revised....................................................40368
35.155  Introductory text amended; (c) added; interim..............14358
35.250  Amended; interim...........................................14358
35.255  Revised; interim...........................................14358
35.260  (a) amended; (b) revised; interim..........................14358
35.265  Added; interim.............................................14358
35.350--35.360  Undesignated center heading revised; interim.......14358
35.350  Amended; interim...........................................14358
35.360  (a), (b), and (c) amended; interim.........................14358
35.365  Added; interim.............................................14358
35.415  (a)(2) revised.............................................52137
35.750--35.760  Undesignated center heading added; interim.........14358
35.750  Added; interim.............................................14358
35.755  Added; interim.............................................14359
35.760  Added; interim.............................................14359
35.1600--35.1650-6 (Subpart H)  Authority citation revised.........14359
35.1600  Amended; interim..........................................14359
35.1605  Amended; interim..........................................14359
35.1605-9  Added; interim..........................................14359
35.1620-1  (c) added; interim......................................14359
35.4020  (b) revised; (c) added; interim...........................49851
35.4030  (a)(2) revised; interim...................................49851
35.4055  (a) (1) and (7) revised; interim..........................49851
35.4085  (a) introductory text revised; (e) removed; interim.......49851
35.4090  (b) introductory text revised; interim....................49852
35.6000--35.6920 (Subpart O)  Added; interim........................4135
35.9000--35.9070 (Subpart P)  Added; interim.......................40804
51  PM 10 grouping revision........................................12620
    Air quality implementation plans...............................48870
51.165  (a)(1)(xiv) revised........................................27285
    (a)(1)(xix) added; (a)(3)(ii)(C) revised.......................27299
51.166  (b)(17) revised............................................27285
    (b)(29) and (s)(2)(vi) added; (s)(2)(iv)(b) removed; 
(s)(2)(iv)(c) redesignated as (s)(2)(iv)(b)........................27299
51  Appendix S amended......................................27285, 27299

                                  1990

40 CFR
                                                                   55 FR
                                                                    Page
Chapter I
7  Authority citation revised......................................52142
7.70  (c) and (d) removed; (b) revised......................52138, 52142
22  Authority citation revised; eff. 7-12-90.......................23840
22.38  Revised; eff. 7-12-90.......................................23840
32.600--32.635 (Subpart F)  Regulation at 54 FR 4950, 4962 
        confirmed; revised; eff. in part 7-24-90............21688, 21701
32  Appendix C regulation at 54 FR 4950, 4962 confirmed; revised; 
        eff. in part 7-24-90................................21690, 21701
34  Added; interim............................................6737, 6753
35.2005  (b)(47) through (52) redesignated as (b)(48) through (5); 
        new (b)47) added; interim..................................27095
35.2012  Added; interim............................................27095
35.2015  (b)(2)(iii) revised; interim..............................27095
35.2020  (b) revised; (f), (g), and (h) added; interim.............27095
35.2021  (a) revised...............................................27095
35.2025  (a) and (b)(5) revised; interim...........................27095
35.2035  Added; interim............................................27095
35.2036  Added; interim............................................27096
35.2040  (g) added; interim........................................27096
35.2100  Revised; interim..........................................27096

[[Page 1105]]

35.2102  Revised; interim..........................................27097
35.2104  Introductory text and (a) through (d) redesingated as (a) 
        introductory text and (1) through (4); new (b) added; 
        interim....................................................27097
35.2118  (a)(1) revised; interim...................................27097
35.2140  (i) amended; interim......................................27097
35.2152  (a) introductory text and (3) revised; (c) and (d) 
        redesignated as (d) and (e); new (c) added; interim........27097
35.2203  Added; interim............................................27097
35.2204  (c) added; interim........................................27097
35.2212  (b) revised; interim......................................27097
35.2218  (d) amended; interim......................................27098
35.2300  (f) added; interim........................................27098
35.2000--35.2350 (Subpart I)  Appendix A amended; interim..........27098
    Appendix B amended; interim....................................27098
35.3000--35.3035 (Subpart J)  Authority citation revised...........27098
35.3000  Existing text designated as (a); (b) and (c) added; 
        interim....................................................27098
35.3100--35.3170 (Subpart K)  Added; interim.......................10178
35.6000--35.6820 (Subpart O)  Revised; eff. 7-5-90.................23007
35.6285  (c)(1)(ii) corrected......................................24343
51  Authority citation revised.....................................14249
    State implementation plan attainment groups.............38326, 45800
51.103  (a) introductory text revised...............................5830
51.212  (c) added..................................................14249
51  Appendix M added...............................................14249
    Appendix M corrected....................................24687, 37607
    Appendix V added................................................5830

                                  1991

40 CFR
                                                                   56 FR
                                                                    Page
Chapter I
6.400  (f) revised.................................................20543
6.700--6.706 (Subpart G)  Revised..................................20543
22  Authority citation revised......................................3756
22.01  (a)(9) added.................................................3757
22.42  Added........................................................3757
24  Authority citation revised.....................................49380
24.01  (a) revised; (c) redesignated as (d); new (c) added.........49380
24.02  (a) revised.................................................49380
24.04  (a) revised.................................................49380
24.08  Revised.....................................................49380
26  Added; eff. 8-19-91.....................................28012, 28022
26.101  (b)(5) corrected...........................................29756
26.103  (f) corrected..............................................29756
30.541  Added.......................................................7305
35  Class deviation.................................................1492
35.2010  Deviation from rule.......................................47403
51  Authority citation revised.....................................42219
51.166  (b)(23)(i) amended; eff. 8-12-91............................5506
51  Appendix M amended.......................................6278, 65435
    Appendix V amended......................................42219, 57288

                                  1992

40 CFR
                                                                   57 FR
                                                                    Page
Chapter I
Chapter I  Nomenclature change..............................28087, 28088
1.25  (e) added.....................................................5323
3.100--3.106 (Subpart A)  Appendix C amended........................5323
17.8  Revised.......................................................5323
17.14  (b) revised..................................................5323
22  Authority citation revised......................................4318
22.01  (a)(2) revised...............................................4318
22.03  Amended......................................................5323
22.04  (a), (b) and (d)(2) revised; (d)(1) amended..................5324
    Heading revised................................................60129
22.05  (c)(1) revised; (c)(5) amended...............................5324
22.06  Amended......................................................5324
22.07  (b) amended..................................................5324
22.08  Amended......................................................5325
22.09  (a) amended..................................................5325
22.11  (d) amended..................................................5325
22.16  (b) and (c) amended..........................................5325
    (b) amended....................................................60129
22.23  (b) amended..................................................5325
22.27  (a) amended; (c) revised.....................................5325
22.29  (a), (c) and (d) amended; (b) revised........................5325
22.30  (a)(1), (2) and (b) amended; (c) and (d) revised.............5325
22.31  (a) revised..................................................5326
22.32  Revised......................................................5326
22.34  Revised......................................................4318
22.43  Added........................................................4318
27.2  Amended.......................................................5326
27.10  (h) through (l) revised......................................5326
27.14  (a)(2) and (b) revised.......................................5326
27.16  (f)(3) revised...............................................5326

[[Page 1106]]

27.31  (a) amended; (b) introductory text and (c) revised...........5327
27.35  (b) revised..................................................5327
27.37  (d) revised..................................................5327
27.38  (f) and (g) revised..........................................5327
27.39  (a), (b)(3), (c), (f) and (h) through (l) revised............5327
27.40  Revised......................................................5327
27.41  Revised......................................................5327
27.42  Revised......................................................5327
27.46  (c) and (e) revised..........................................5327
27.48  Revised......................................................5328
35.115  (i) revised.................................................8074
35.4000--35.4130 (Subpart M)  Revised..............................45316
47  Added; interim..................................................8390
51  Authority citation revised..............................32334, 52987
51.100  (s) added...................................................3945
51.165  (a)(1)(xix) revised.........................................3946
    (a)(1)(xii)(D) revised; (a)(1)(v)(C)(8), (9), (xii)(E) and 
(xx) through (xxv added............................................32334
51.166  (b)(29) revised.............................................3946
    (b)(21)(iv) revised; (b)(2)(iii)(h) through (k), (21)(v) and 
(30) through (37) added............................................32335
51.350--51.373 (Subpart S)  Added..................................52987
51  Appendix S amended..............................................3946
    Appendix N removed.............................................52987

                                  1993

40 CFR
                                                                   58 FR
                                                                    Page
Chapter I
2  Authority citation revised........................................461
      Authority citation revised...................................63247
2.211  (d) amended...................................................461
2.301  (b)(6) removed, (e) amended; (h)(2)(i), (ii)(A) and (C) 
        revised......................................................461
    Heading and (e) corrected.......................................5061
    (h)(2)(i) amended...............................................7189
2.306  (j)(1) existing text amended; (j)(1)(i) and (ii) added........462
2.310  Heading, (a)(1), (6), (b), (g)(1), (3), (4), (h)(1) and (4) 
        revised; (g)(5) and (6) added................................462
6.303  (a) and (b) revised; (c) through (g) removed................63247
9  Added (OMB numbers).............................................27472
    Authority citation revised..............................34199, 34370
9.1  Table amended (OMB numbers)..................................34199,
34370, 40048, 40054, 49376, 57911, 58400, 62283, 66294
35  Authority citation revised.....................................63878
35.10000--35.10035 (Subpart Q)  Added; interim.....................63878
50  National ambient air quality standards for ozone........13008, 21351
51  Sectional OMB numbers removed..................................34370
    Technical correction...........................................34904
    Authority citation revised.....................................38821
    Solid waste incinerator categories list........................58498
51.46  (b) revised, (c) removed; eff. 8-19-93......................38821
51.63  (a) amended; eff. 8-19-93...................................38821
51.112  (a) amended; (a)(1) and (a)(2) added; eff. 8-19-93.........38821
51.117  (c)(1), (2), and (3) amended; eff. 8-19-93.................38822
51.150  (e) amended; eff. 8-19-93..................................38822
51.160  (f)(1) and (2) added; eff. 8-19-93.........................38822
51.166  (b)(3)(iv), (i)(8)(i)(c), (c) table and (p)(4) table 
        revised; (f)(3) removed; (b)(14)(iv), (15)(iii) and 
        (i)(12) added; eff. 6-3-94.................................31636
    (l)(1) and (l)(2) revised; eff. 8-19-93........................38822
51.351  (a)(7)(iv), (v) and (vi) revised...........................59367
51.353  (a) amended................................................59367
51.359  (e)(1) amended.............................................59367
51.360  (a)(8) revised.............................................59367
51.373  (a) amended................................................59367
51.350--51.373 (Subpart S)  Appendixes A, D and E amended..........59367
51.390--51.464 (Subpart T)  Added..................................62216
51.850--51.860 (Subpart W)  Added (OMB number pending).............63247
51  Appendix W added; eff. 8-19-93.................................38822

                                  1994

40 CFR
                                                                   59 FR
                                                                    Page
Chapter I
9  Authority citation revised......................................32339

[[Page 1107]]

9.1  Table amended (OMB numbers)...................................4493,
8412, 13146, 13564, 14106, 26449, 31335, 31541, 32342, 34097, 38372, 
46350, 47416, 50072, 59650, 59924, 60561, 61805, 62588, 62923, 64318, 
64593,
    Table corrected (OMB numbers)..................................17154
    Table amended (OMB numbers); eff. 7-22-94......................32083
    Table amended; eff. 7-25-94 (OMB numbers)........32339, 32340, 32341
    Table corrected (OMB numbers); eff. 8-30-94....................33913
13  Authority citation revised.......................................651
13.34--13.40 (Subpart H)  Added; interim.............................651
15.3  Revised......................................................50692
15.4  Amended......................................................50692
15.11  (c) amended.................................................50692
15.12  (a) and (d) amended.........................................50692
15.13  (a), (c), and (d) amended...................................50692
15.14  Amended.....................................................50692
15.15  Amended.....................................................50692
15.16  (c) removed.................................................50692
15.20  Amended.....................................................50692
15.21  Amended.....................................................50692
15.22  Amended.....................................................50692
15.23  Amended.....................................................50692
15.24  (a), (c) and (d) amended....................................50692
15.25  Heading, (a), (b) and (c) amended...........................50692
15.26  (a) amended; (b) removed....................................50692
15.27  Amended.....................................................50692
15.32  Amended.....................................................50692
15.33  Amended.....................................................50692
15.40  Revised.....................................................50692
15.41  Amended.....................................................50692
16.14(a)(1) revised................................................17486
32  Heading revised................................................50692
    Authority citation revised.....................................50692
32.105  (g)(3) and (t)(3) revised..................................50692
32.215  (a) revised................................................50693
32.335  (a) through (d) amended....................................50693
32.430  (a) through (d) amended....................................50693
35.105  Amended; interim...........................................13817
35.115  (b), (d), (f) and (g) amended; interim.....................13817
35.155  (c) amended; interim.......................................13817
35.250  Amended; interim...........................................13817
35.255  (b) amended; interim.......................................13817
35.260  (a) and (b) amended; interim...............................13817
35.265  (a) amended; interim.......................................13817
35.350  Introductory text amended; interim.........................13817
35.365  (a)(1) amended; interim....................................13817
35.400  Amended; interim...........................................13817
35.415  (a)(1) amended; interim....................................13817
35.450  Amended; interim...........................................13817
35.465  (a)(1) amended; interim....................................13817
35.750  Amended; interim...........................................13817
35.755  (a) and (b)(1) amended; interim............................13817
35.1605-9  Amended; interim........................................13817
35.1620-1  (c) amended; interim....................................13817
35.6105  (b)(5) revised............................................35853
35.6400  (a)(1) and (2) revised....................................35854
35.9065  (b) removed; (c) redesignated as (b); new (b) 
        introductory text revised; interim.........................61126
50  Policy decision................................................38906
51.100  (s)(1) introductory text revised...........................50696
51.351  (v)  correctly revised.....................................32343
51.490--51.494 (Subpart U)  Added..................................16710
51  Appendix X added...............................................16715

                                  1995

40 CFR
                                                                   60 FR
                                                                    Page
Chapter I
9  Technical correction.....................................27598, 35452
9.1  Table amended (OMB numbers)............................4962, 12676,
15386, 17111, 18010, 20232, 20233, 25540, 28052, 29954, 32594, 34170, 
34334, 34598, 40496, 42792, 43258, 43886, 45956, 48399, 62935, 63431
    OMB number; CFR correction.....................................10029
    Table amended (OMB numbers); interim; eff. 7-17-95.............26513
    Regulation at 59 FR 62923 eff. date delayed to 12-6-95.........26828
    Table corrected (OMB numbers)..................................33462
    Regulation at 59 FR 62923 eff. date delayed to 6-6-96..........56952
31.36  (d), (g), (h) and (i) revised........................19639, 19644
32  Authority citation revised.....................................33059

[[Page 1108]]

32.100  Revised; eff. 8-25-95...............................33040, 33059
32.105  Amended; eff. 8-25-95...............................33041, 33059
32.110  (c) revised; eff. 8-25-95...........................33041, 33059
32.200  Revised; eff. 8-25-95...............................33041, 33059
32.215  Revised; eff. 8-25-95...............................33041, 33059
32.220  Revised; eff. 8-25-95...............................33041, 33059
32.225  Revised; eff. 8-25-95...............................33041, 33059
32  Appendixes A and B revised; eff. 8-25-95................33042, 33059
35.105  Amended; interim.............................................371
35.115  (a) amended; interim.........................................371
35.155  Second (c) correctly redesignated as (d)....................2881
35.201  Added; interim...............................................371
35.205  Revised; interim.............................................371
35.210  (a) amended; interim.........................................371
35.800--35.845 (Subpart C)  Removed................................33931
35.850--35.880 (Subpart D)  Removed................................33931
51  Authority citation revised...............................1738, 40100
51.40--51.63 (Subpart D)  Removed..................................33922
51.100  (s)(1) introductory text revised...........................31637
51.105  Amended....................................................33922
51.111  (a), (b) and (c) removed; (d) redesignated as (a)..........33922
51.112  (a)(1) and (2) amended.....................................40468
51.113  Removed....................................................33922
51.120  Added.......................................................4736
51.160  (f)(1) and (2) amended.....................................40468
51.166  (l)(1) and (2) amended.....................................40468
51.213  (b) removed; (c) and (d) redesignated as (b) and (c).......33922
51.241  (a) amended................................................33922
51.340  Removed....................................................33922
51.350  (a)(4), (6), (7), (8), (9) and (b)(4) revised; (a)(5) 
        removed....................................................48034
51.351  (a) introductory text and (b) revised; (e) removed; (f) 
        and (g) added..............................................48035
51.360  Introductory text, (a)(1), (5), (6), (7) introductory 
        text, (9) and (b) revised..................................48036
51.372  (c), (d) and (e) added......................................1738
51.372  (c) introductory text, (3), (4) and (e) revised............48036
51.392  Amended....................................................57184
51.394  (b)(3)(i) revised; interim.................................44763
    (b)(3)(i) revised; (d) added...................................57184
51.396  (a) amended................................................57185
51.420  Revised....................................................57185
51.422  (a) amended; (d) added.....................................57185
51.428  (b)(1)(ii) revised.........................................57185
51.448  (b)(2) and (c)(2) redesignated as (b)(3) and (c)(3); 
        (a)(4), new (b)(2), new (c)(2) and (d)(4) added; new 
        (c)(3)(iii) amended; interim; eff. 2-8-95 through 8-8-95 
                                                                    7452
    (a)(3), (b)(1) introductory text and (d)(3) revised; (g)(1) 
and (2) removed; (b)(2), (c)(2) and (g)(3) redesignated as (b)(3), 
(c)(3) and (g)(1); new (b)(2) and (c)(2) added.....................40100
    (g) removed; (h) and (i) redesignated as (g) and (h); (a) 
through (d) and new (g) revised....................................57185
51.452  (b)(5) redesignated (a)(6); (c)(1) amended.................57186
51  Appendix M amended.............................................28054
    Appendix U removed.............................................33922
51  Appendix W amended............................................40468,
                                                     40469, 40470, 40471

                                  1996

    (Regulations published from January 1, 1996 through July 1, 1996)

40 CFR
                                                                   61 FR
                                                                    Page
Chapter I
8  Removed.........................................................33674
9.1  Table amended (OMB numbers)......11106, 16309, 27140, 33206, 33851, 
                                                                   33852
    Table amended (OMB numbers); eff. 7-31-96......................34228
15  Removed........................................................28756
22.37  (g) added...................................................11092
30  Revised; interim................................................6067
32  Heading revised................................................28756
    Authority citation revised.....................................28756
32.100  (e) added..................................................28756
32.105  Amended....................................................28756
32.110  (d) added..................................................28757
32.115  (d) revised................................................28757
32.215  Revised....................................................28757
32.315  (c) added..................................................28757
32.321  Added......................................................28757
32.330  Removed....................................................28757
32.425  Removed....................................................28757

[[Page 1109]]

33  Removed; interim................................................6067
50.4  Revised......................................................25579
50.5  Revised......................................................25580
51.100  (s)(1) introductory text revised............................4590
    (o) removed....................................................16060
    (o) added......................................................30162
51.101  Removed....................................................16060
    Added..........................................................30163
51.104  (a), (b) and (e) removed...................................16060
51.110  (a), (b), (c) and (e) through (l) removed; (d) 
        redesignated as (a)........................................16060
    (g) added......................................................30163
51.166  (b)(23)(i) amended..........................................9918
51.213  Removed....................................................16060
    Added..........................................................30163
51.241  (b) through (f) removed....................................16060
51.243  Removed....................................................16060
51.244  Removed....................................................16060
51.245  Removed....................................................16060
51.246  Removed....................................................16060
51.247  Removed....................................................16060
51.248  Removed....................................................16060
51.250  Removed....................................................16060
51.251  Removed....................................................16060
51.252  Removed....................................................16060
51.325  Removed....................................................16060