[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2003 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    40


          Part 1 to 49

                         Revised as of July 1, 2003

Protection of Environment





          Containing a codification of documents of general 
          applicability and future effect
          As of July 1, 2003
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2003



  For sale by the Superintendent of Documents, U.S. Government Printing 
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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 40:
          Chapter I--Environmental Protection Agency                 3
  Finding Aids:
      Table of CFR Titles and Chapters........................     753
      Alphabetical List of Agencies Appearing in the CFR......     771
      List of CFR Sections Affected...........................     781



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

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 40 CFR 1.1 refers to 
                       title 40, part 1, section 
                       1.

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

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                               EXPLANATION

    The 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.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The 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).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The 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.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2003), 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.

EFFECTIVE AND EXPIRATION DATES

    Each 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.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many 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.

OBSOLETE PROVISIONS

    Provisions 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, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The 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.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For 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 odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
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512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (``GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, [email protected].

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.archives.gov/federal--
register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2003.



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                               THIS TITLE

    Title 40--Protection of Environment is composed of twenty-nine 
volumes. The parts in these volumes are arranged in the following order: 
parts 1-49, parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-End), 
parts 53-59, part 60 (60.1-End), part 60 (Appendices), parts 61-62, part 
63 (63.1-63.599), part 63 (63.600-1-63.1199), part 63 (63.1200-63.1439), 
part 63 (63.1440-End) parts 64-71, parts 72-80, parts 81-85, part 86 
(86.1-86.599-99) part 86 (86.600-1-End), parts 87-99, parts 100-135, 
parts 136-149, parts 150-189, parts 190-259, parts 260-265, parts 266-
299, parts 300-399, parts 400-424, parts 425-699, parts 700-789, 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, 2003.

    Chapter I--Environmental Protection Agency appears in all twenty-
nine volumes. An alphabetical Listing of Pesticide Chemicals Index 
appears in parts 150-189. Regulations issued by the Council on 
Environmental Quality appear in the volume containing part 790 to End. 
The OMB control numbers for title 40 appear in Sec. 9.1 of this chapter.

[[Page x]]




[[Page 1]]



                   TITLE 40--PROTECTION OF ENVIRONMENT




                   (This book contains parts 1 to 49)

  --------------------------------------------------------------------
                                                                    Part

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

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               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY




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


  Editorial Note: Nomenclature changes to chapter I appear at 65 FR 
47324, 47325, Aug. 2, 2000, and 66 FR 34375, 34376, June 28, 2001.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
1               Statement of organization and general 
                    information.............................           5
2               Public information..........................          23
4               Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............          70
5               Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..          70
6               Procedures for implementing the requirements 
                    of the Council on Environmental Quality 
                    on the National Environmental Policy Act          87
7               Nondiscrimination in programs receiving 
                    Federal assistance from the 
                    Environmental Protection Agency.........         126
8               Environmental impact assessment of 
                    nongovernmental activities in Antarctica         138
9               OMB approvals under the Paperwork Reduction 
                    Act.....................................         146
10              Administrative claims under Federal Tort 
                    Claims Act..............................         167
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

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19              Adjustment of civil monetary penalties for 
                    inflation...............................         218
20              Certification of facilities.................         221
21              Small business..............................         228
22              Consolidated rules of practice governing the 
                    administrative assessment of civil 
                    penalties and the revocation/termination 
                    or suspension of permits................         237
23              Judicial review under EPA--Administered 
                    statutes................................         262
24              Rules governing issuance of and 
                    administrative hearings on interim 
                    status corrective action orders.........         264
25              Public participation in programs under the 
                    Resource Conservation and Recovery Act, 
                    the Safe Drinking Water Act, and the 
                    Clean Water Act.........................         272
26              Protection of human subjects................         282
27              Program fraud civil remedies................         292
29              Intergovernmental review of Environmental 
                    Protection Agency programs and 
                    activities..............................         309
            SUBCHAPTER B--GRANTS AND OTHER FEDERAL ASSISTANCE
30              Uniform administrative requirements for 
                    grants and agreements with institutions 
                    of higher education, hospitals, and 
                    other non-profit organizations..........         314
31              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         341
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...............................         377
34              New restrictions on lobbying................         397
35              State and local assistance..................         409
40              Research and demonstration grants...........         693
45              Training assistance.........................         702
46              Fellowships.................................         705
47              National Environmental Education Act grants.         710
49              Tribal Clean Air Act authority..............         712

[[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, 1200 Pennsylvania 
Ave., NW., 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 1200 Pennsylvania Ave., NW., 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, 77 West Jackson 
Boulevard, 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.)

[50 FR 26721, June 28, 1985, as amended at 62 FR 1833, Jan. 14, 1997]



                         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

[[Page 7]]

activities in the Office's area of responsibilities. The Office 
implements and 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 no more than 
four Board Members designated by the Administrator. The Board shall 
decide each matter before it in accordance with applicable statutes and 
regulations. The Board typically shall sit on matters before it in 
three-Member panels, and shall decide each matter by a majority vote. In 
the event that absence or recusal prevents a three-Member panel, the 
Board shall sit on a matter as a panel of two Members, and two Members 
shall constitute a quorum under such circumstances. The Board in its 
sole discretion shall establish panels to consider matters before it. 
The Board's decisions regarding panel size and composition shall not be 
reviewable. 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.

[[Page 8]]

    (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 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; 63 
FR 67780, Dec. 9, 1998]



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

[[Page 9]]

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 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,

[[Page 10]]

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, 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

[[Page 11]]

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 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

[[Page 12]]

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 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

[[Page 13]]

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.
    (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

[[Page 14]]

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 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

[[Page 15]]

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.
    (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

[[Page 16]]

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 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

[[Page 17]]

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 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

[[Page 18]]

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;
    (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

[[Page 19]]

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.
    (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.

[[Page 20]]

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 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

[[Page 21]]

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., 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

[[Page 22]]

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, 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

[[Page 23]]

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 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--Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

Sec.
2.100  General provisions.
2.101  Where requests for records are to be filed.
2.102  Procedures for making requests.
2.103  Responsibility for responding to requests.
2.104  Responses to requests and appeals.
2.105  Exemption categories.
2.106  Preservation of records.
2.107  Fees.
2.108  Other rights and services.

           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.
2.208  Substantive criteria for use in confidentiality determinations.
2.209  Disclosure in special circumstances.

[[Page 24]]

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--Procedures for Disclosure of Records Under the Freedom of 
                             Information Act

    Source: 67 FR 67307, Nov. 5, 2002, unless otherwise noted.



Sec. 2.100  General provisions.

    (a) This subpart contains the rules that the Environmental 
Protection Agency (EPA or Agency) follows in processing requests for 
records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. The 
Agency also has rules that it follows in processing Freedom of 
Information (FOI) requests for records submitted to it as Confidential 
Business Information (CBI). Such records are covered in subpart B of 
this part. Requests made by individuals for records about themselves 
under the Privacy Act of 1974 which are processed under 40 CFR part 16, 
will also be treated as FOIA requests under this subpart. This ensures 
that the requestor has access to all responsive records. Information 
routinely provided to the public as part of a regular EPA activity may 
be provided to the public without following this subpart.
    (b) When documents responsive to a request are maintained for 
distribution by agencies operating statutory-based fee schedule 
programs, such as, but not

[[Page 25]]

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 these sources.



Sec. 2.101  Where requests for records are to be filed.

    (a) You may request records by writing to the Records, FOIA, and 
Privacy Branch, Office of Environmental Information, Environmental 
Protection Agency, 1200 Pennsylvania Avenue (2822T), NW, Washington, DC 
20460; e-mail: [email protected]. You may also access EPA Headquarters and 
Regional Freedom of Information Offices' Web sites at http://
www.epa.gov/foia and submit a request via an online form. If you believe 
the records sought may be located in an EPA regional office, you should 
send your request to the appropriate regional FOI Officer as indicated 
in the following list:
    (1) Region I (CT, ME, MA, NH, RI, VT): EPA, FOI Officer, One 
Congress Street, Suite 1100, Boston, MA 02114-2023; e-mail: 
[email protected].
    (2) Region II (NJ, NY, PR, VI): EPA, FOI Officer, 290 Broadway, 26th 
Floor, New York, NY 10007-1866; e-mail: [email protected].
    (3) Region III (DE, DC, MD, PA, VA, WV): EPA, FOI Officer, 1650 Arch 
Street, Philadelphia, PA 19103-2029; e-mail: [email protected].
    (4) Region IV (AL, FL, GA, KY, MS, NC, SC, TN): EPA, Freedom of 
Information Officer, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, GA 30303-8960; e-mail: [email protected].
    (5) Region V (IL, IN, MI, MN, OH, WI): EPA. Freedom of Information 
Officer, 77 West Jackson Boulevard, Chicago, IL 60604-3507; e-mail: 
[email protected].
    (6) Region VI (AR, LA, NM, OK, TX): EPA, Freedom of Information 
Officer, 1445 Ross Avenue, Dallas, TX 75202-2733; e-mail: 
[email protected].
    (7) Region VII (IA, KS, MO, NE): EPA, Freedom of Information 
Officer, 901 North Fifth Street, Kansas City, KS 66101; e-mail: 
[email protected].
    (8) Region VIII (CO, MT, ND, SD, UT, WY): EPA, Freedom of 
Information Officer, 999 18th Street, Suite 500, Denver, CO 80202-2466, 
e-mail: [email protected].
    (9) Region IX (AZ, CA, HI, NV, AS, GU): EPA, Freedom of Information 
Officer, 75 Hawthorne Street, San Francisco, CA 94105; e-mail: 
[email protected].
    (10) Region X (AK, ID, OR, WA): EPA, Freedom of Information Officer, 
1200 Sixth Avenue, Seattle, WA 98101; e-mail: [email protected].
    (b) EPA provides access to all records that the FOIA requires an 
agency to make regularly available for public inspection and copying. 
Each office is responsible for determining which of the records it 
generates are required to be made publicly available and for providing 
access by the public to them. The Agency will also maintain and make 
available for public inspection and copying a current subject-matter 
index of such records and provide a copy or a link to the respective Web 
site for Headquarters or the Regions. Each index will be updated 
regularly, at least quarterly, with respect to newly-included records.
    (c) All records created by EPA on or after November 1, 1996, which 
the FOIA requires an agency to make regularly available for public 
inspection and copying, will be made available electronically through 
EPA's worldwide Web site, located at http://www.epa.gov, or, upon 
request, through other electronic means. EPA will also include on its 
worldwide Web site the current subject-matter index of all such records.



Sec. 2.102  Procedures for making requests.

    (a) How made and addressed. You may make a request for EPA records 
that are not publicly available under Sec. 2.201(a)-(b) by writing 
directly to the appropriate FOI Officer, as listed in Sec. 2.101(a). 
Only written requests for records will be accepted for processing under 
this subpart. For records located at EPA Headquarters, or in those 
instances when you cannot determine where to send your request, you may 
send it to the Records, FOIA, and Privacy Branch, Office of 
Environmental Information, Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460; e-mail: [email protected]. 
That office will forward your request to the regional FOI Office it 
believes most likely to have the records that you want. Your

[[Page 26]]

request will be considered received as of the date it is received by the 
correct FOI Office. Misdirected requests will not be considered received 
by EPA until the appropriate FOI Office receives the request. For proper 
handling, you should mark both your request letter and its envelope or 
e-mail subject line ``Freedom of Information Act Request.'' You should 
also include your name, mailing address, and daytime telephone number in 
the event we need to contact you.
    (b) EPA employees may attempt in good faith to comply with oral 
requests for inspection or disclosure of EPA records publicly available 
under Sec. 2.201(a)-(b) , but such requests are not subject to the FOIA 
or the regulations in this part.
    (c) Description of records sought. Your request should reasonably 
describe the records you are seeking in a way that will permit EPA 
employees to identify and locate them. Whenever possible, your request 
should include specific information about each record sought, such as 
the date, title or name, author, recipient, and subject matter. If 
known, you should include any file designations or descriptions for the 
records that you want. The more specific you are about the records or 
type of records that you want, the more likely EPA will be able to 
identify and locate records responsive to your request. If EPA 
determines that your request does not reasonably describe the records, 
it will tell you either what additional information you need to provide 
or why your request is otherwise insufficient. EPA will also give you an 
opportunity to discuss and modify your request to meet the requirements 
of this section. Should it be necessary for you to provide a revised 
description of the records you are seeking, the time necessary to do so 
will be excluded from the statutory 20 working day period (or any 
authorized extension of time) that EPA has to respond to your request as 
discussed in Sec. 2.104.
    (d) Agreement to pay fees. If you make a FOIA request, EPA will 
consider your request to be an agreement that you will pay all 
applicable fees charged under Sec. 2.107, up to $25.00, unless you seek 
a waiver of fees. The EPA office responsible for responding to your 
request ordinarily will confirm this agreement in writing. When making a 
request, you may specify a willingness to pay a greater or lesser 
amount. Should it be necessary for you to provide a written agreement to 
pay additional fees, the time necessary to do so will be excluded from 
the statutory 20 working day period (or any authorized extension of 
time).



Sec. 2.103  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraphs (c), (d), (e), and 
(f) of this section, the EPA office that has possession of that record 
is the office responsible for responding to you. In determining which 
records are within the scope of a request, an office will ordinarily 
include only those records in its possession as of the date the request 
was received in the Headquarters or Regional FOI Office. If any other 
date is used, the office will inform you of that date.
    (b) Authority to grant or deny requests. The head of an office, or 
that individual's designee, is authorized to grant or deny any request 
for a record of that office or other Agency records when appropriate.
    (c) Authority to grant or deny fee waivers or requests for expedited 
treatment. The head of the Headquarters FOIA Office and Regional FOI 
Officers, or their designees, are authorized to grant or deny fee 
waivers or requests for expedited treatment.
    (d) Consultations and referrals. When a request to EPA seeks records 
in its possession that originated with another Federal agency, the EPA 
office receiving the request shall either:
    (1) Consult with the Federal agency where the record or portion 
thereof originated and then respond to your request, or
    (2) Direct the FOI Office to refer your request to the Federal 
agency where the record or portion thereof originated. Whenever all or 
any part of the responsibility for responding to a request has been 
referred to another agency, the FOI Office will notify you accordingly.
    (e) Law enforcement information. Whenever a request is made for a

[[Page 27]]

record containing information that relates to an investigation of a 
possible violation of law and was originated by another agency, the 
receiving office will either direct the FOI Office to refer the request 
to that other agency or consult with that other agency prior to making 
any release determination.



Sec. 2.104  Responses to requests and appeals.

    (a) Unless the Agency and the requester have agreed otherwise, or 
when unusual circumstances exist as provided in paragraph (e) of this 
section, EPA offices will respond to requests no later than 20 working 
days from the date the request is received and logged in by the 
appropriate FOI Office. EPA will ordinarily respond to requests in the 
order in which they were received. If EPA fails to respond to your 
request within the 20 working day period, or any authorized extension of 
time, you may seek judicial review to obtain the records without first 
making an administrative appeal.
    (b) On receipt of a request, the FOI Office ordinarily will send a 
written acknowledgment advising you of the date it was received and of 
the processing number assigned to the request for future reference.
    (c) Multitrack processing. The Agency uses three or more processing 
tracks by distinguishing between simple and complex requests based on 
the amount of work and/or time needed to process the request, including 
limits based on the number of pages involved. The Agency will advise you 
of the processing track in which your request has been placed and of the 
limits of the different processing tracks. The Agency may place your 
request in its slower track(s) while providing you the opportunity to 
limit the scope of your request in order to qualify for faster 
processing within the specified limits of the faster track(s). If your 
request is placed in a slower track, the Agency will contact you either 
by telephone or by letter, whichever is most efficient in each case.
    (d) Unusual circumstances. When the statutory time limits for 
processing a request cannot be met because of ``unusual circumstances,'' 
as defined in the FOIA, and the time limits are extended on that basis, 
you will be notified in writing, as soon as practicable, of the unusual 
circumstances and of the date by which processing of the request should 
be completed. When the extension is for more than 10 working days, the 
Agency will provide you with an opportunity either to modify the request 
so that it may be processed within the 10 working day time limit 
extension or to arrange an alternative time period for processing the 
original or modified request.
    (e) Expedited processing. (1) Requests or appeals will be taken out 
of order and given expedited treatment whenever EPA determines that such 
requests or appeals involve a compelling need, as follows:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
Federal government activity, if the information is requested by a person 
primarily engaged in disseminating information to the public.
    (2) A request for expedited processing must be made at the time of 
the initial request for records or at the time of appeal.
    (3) If you are seeking expedited processing, you must submit a 
statement, certified to be true and correct to the best of your 
knowledge and belief, explaining in detail the basis for the request. 
For example, if you fit within the category described in paragraph 
(e)(1)(ii) of this section and are not a full-time member of the news 
media, you must establish that you are a person whose primary 
professional activity or occupation is information dissemination, 
although it need not be your sole occupation. If you fit within the 
category described in paragraph (e)(1)(ii) of this section, you must 
also establish a particular urgency to inform the public about the 
government activity involved in the request, beyond the public's right 
to know about government activity generally.
    (4) Within 10 calendar days from the date of your request for 
expedited processing, the head of the Headquarters FOI Staff or Regional 
FOI Officer will

[[Page 28]]

decide whether to grant your request and will notify you of the 
decision. If your request for expedited treatment is granted, the 
request will be given priority and will be processed as soon as 
practicable. If your request for expedited processing is denied, any 
appeal of that decision will be acted on expeditiously.
    (f) Grants of requests. Once an office makes a determination to 
grant a request in whole or in part, it will release the records or 
parts of records to you and notify you of any applicable fee charged 
under Sec. 2.107. Records released in part will be annotated, whenever 
technically feasible, with the applicable FOIA exemption(s) at that part 
of the record from which the exempt information was deleted.
    (g) Adverse determinations of requests. Once the Agency makes an 
adverse determination of a request, the requestor will be notified of 
that determination in writing. An adverse determination consists of a 
determination to withhold any requested record in whole or in part; a 
determination that a requested record does not exist or cannot be 
located; a determination that what has been requested is not a record 
subject to the FOIA; a determination on any disputed fee matter, 
including a denial of a request for a fee waiver; or a denial of a 
request for expedited treatment.
    (h) Initial denials of requests. 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. However, the authority to issue initial denials of 
requests for existing, located records (other than initial denials based 
solely on Sec. 2.204(d)(1)) may be redelegated only to persons occupying 
positions not lower than division director or equivalent. Each letter 
will include:
    (1) The name and title or position of the person responsible for the 
denial;
    (2) A brief statement of the reason(s) for the denial, including an 
identification of records being withheld (individual, or if a large 
number of similar records are being denied, by described category), and 
any FOIA exemption applied by the office in denying the request;
    (3) An estimate of the volume of records or information withheld, in 
number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through annotated deletions on records disclosed in part, or 
if providing an estimate would harm an interest protected by an 
applicable exemption; and
    (4) A statement that the denial may be appealed under, and a 
description of the requirements of, paragraph (j) of this section.
    (i) Denial of fee waiver. The letter denying a request for a fee 
waiver or expedited treatment will be signed by the head of the 
Headquarters FOI Staff or Regional FOI Officers.
    (j) Appeals of adverse determinations. If you are dissatisfied with 
any adverse determination of your request by an office, you may appeal 
that determination to the Headquarters Freedom of Information Staff, 
Records, Privacy and FOIA Branch, Office of Information Collection, 
Office of Environmental Information, Environmental Protection Agency, 
1200 Pennsylvania Avenue (2822T), NW., Washington, DC 20460; e-mail: 
[email protected]. The appeal must be made in writing, and it must be 
submitted to the Headquarters FOI Staff no later than 30 calendar days 
from the date of the letter denying the request. The Agency will not 
consider appeals received after the 30-day limit. The appeal letter may 
include as much or as little related information as you wish, as long as 
it clearly identifies the determination being appealed (including the 
assigned FOIA request number, if known). For quickest possible handling, 
the appeal letter and its envelope should be marked ``Freedom of 
Information Act Appeal.'' Unless the Administrator directs otherwise, 
the General Counsel or his/her designee will act on behalf of the 
Administrator on all appeals under this section, except that:
    (1) In the case of an adverse initial determination by the General 
Counsel or his/her designee, the Administrator or his/her designee will 
act on the appeal;

[[Page 29]]

    (2) The Counsel to the Inspector General will act on any appeal 
where the Inspector General or his/her designee has made the initial 
adverse determination; however, if the Counsel to the Inspector General 
has signed the initial adverse determination, the General Counsel or 
his/her designee will act on the appeal;
    (3) An adverse determination by the Administrator on an initial 
request will serve as the final action of the Agency; and
    (4) If a requester seeks judicial review because the Agency has not 
responded in a timely manner, any further action on an appeal will take 
place through the lawsuit.
    (k) The decision on your appeal will be made in writing, normally 
within 20 working days of its receipt by the Headquarters Freedom of 
Information Staff. A decision affirming an adverse determination in 
whole or in part will contain a statement of the reason(s) for the 
decision, including any FOIA exemption(s) applied, and inform you of the 
FOIA provisions for judicial review of the decision. If the adverse 
determination is reversed or modified on appeal, you will be notified in 
a written decision. This written decision will either have the requested 
information that has been determined on appeal to be releasable attached 
to it, or your request will be returned to the appropriate office so 
that it may be reprocessed in accordance with the appeal decision.
    (l) If you wish to seek judicial review of any adverse 
determination, you must first appeal that adverse determination under 
this section, except when EPA has not responded to your request within 
the statutory 20 working day time limit. In such cases, you may seek 
judicial review without making an administrative appeal.



Sec. 2.105  Exemption categories.

    (a) The FOIA, 5 U.S.C. 552(b), establishes the following nine 
categories of information which are exempt from the mandatory disclosure 
requirements of 5 U.S.C. 552(a):
    (1)(i) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy; and
    (ii) 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 information or 
refers to particular types of information to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the affected agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) 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 30]]

    (v) 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
    (vi) Could reasonably be expected to endanger the life or physical 
safety or any individual;
    (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 financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (b) [Reserved]



Sec. 2.106  Preservation of records.

    Each FOI Officer shall preserve all correspondence pertaining to the 
FOIA requests that it receives until disposition or destruction is 
authorized by title 44 of the United States Code or the National 
Archives and Records Administration's General Records Schedule 14. 
Copies of all responsive records should be maintained by the appropriate 
program office. Records shall not be disposed of while they are the 
subject of a pending request, appeal, or lawsuit under the FOIA.



Sec. 2.107  Fees.

    (a) In general. The Agency will charge for processing requests under 
the FOIA in accordance with paragraph (c) of this section, except where 
fees are limited under paragraph (d) of this section or where a waiver 
or reduction of fees is granted under paragraph (l) of this section. 
Requesters will pay fees by check or money order made payable to the 
U.S. Environmental Protection Agency.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his/her 
commercial, trade, or profit interests, which can include furthering 
those interests through litigation. FOI Officers will determine, 
whenever reasonably possible, the use to which a requester will put the 
requested records. When it appears that the requester will put the 
records to a commercial use, either because of the nature of the request 
itself or because an office has reasonable cause to doubt a requester's 
stated use, the FOI Officer will provide the requester a reasonable 
opportunity to submit further clarification.
    (2) Direct costs means those expenses that the Agency actually 
incurs in searching for and duplicating (and, in the case of commercial 
use requests, reviewing) records to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing the 
work and the cost of operating duplication equipment. Not included in 
direct costs are overhead expenses such as the costs of space and 
heating or lighting of the facility in which the records are kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape, disk, or compact disk), 
among others. The Agency will honor a requester's specified preference 
of form or format of disclosure if the record is readily reproducible 
with reasonable efforts in the requested form or format.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, a 
requester must show that the request is authorized by, and is made under 
the auspices of, a qualifying institution and that the records are not 
sought for a commercial use but are sought to further scholarly 
research.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b)(1) of this section, and that is operated solely for the 
purpose of conducting scientific

[[Page 31]]

research which is not intended to promote any particular product or 
industry. To be in this category, a requester must show that the request 
is authorized by, and is made under the auspices of, a qualifying 
institution and that the records are not sought for a commercial use but 
are sought to further scientific research.
    (6) Representative of the news media or news media requester means 
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 include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only in those instances where they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they must 
demonstrate a solid basis for expecting publication through that 
organization. A publication contract would be the clearest proof, but 
FOI Officers will also look to the past publication record of a 
requester in making this determination. To be in this category, a 
requester must not be seeking the requested records for a commercial 
use. A request for records supporting the news-dissemination function of 
the requester will not be considered to be for a commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. It also includes processing any record for disclosure (for 
example, doing all that is necessary to redact it and prepare it for 
disclosure). Review costs are recoverable even if a record ultimately is 
not disclosed. Review time includes time spent considering any formal 
objection to disclosure made by a business submitter requesting 
confidential treatment, but does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (8) Search means the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. Offices will ensure 
that searches are done in the most efficient and least expensive manner 
reasonably possible. For example, offices will not search line-by-line 
where duplicating an entire document would be quicker and less 
expensive.
    (c) Fees to be charged. (1) There are four categories of requests. 
Fees for each of these categories will be charged as follows:
    (i) Commercial use requests. A requester seeking access to records 
for a commercial use will be charged for the time spent searching for 
the records, reviewing the records for possible disclosure, and for the 
cost of each page of duplication. The charges for searching for and/or 
reviewing the records may be charged even if no responsive records are 
found or if the records are located but are determined to be exempt from 
disclosure.
    (ii) Educational or non-commercial scientific requests. Requesters 
from educational or scientific institutions, whose purpose is scholarly, 
noncommercial research, will be charged only for the cost of record 
duplication, except that the first 100 pages of duplication will be 
furnished at no charge.
    (iii) News media requests. Requesters who are representatives of the 
news media, and whose purpose in seeking records is noncommercial, will 
be charged only for the cost of duplication, except that the first 100 
pages of duplication will be furnished at no charge.
    (iv) All other requests. Requesters not covered by one of the three 
categories above will be charged for the full cost of search and 
duplication, except that the first two hours of search time and the 
first 100 pages of duplication will be furnished without charge. The 
charges for searching for the records will be assessed even if no 
responsive records are found or if the records are located but are 
determined to be exempt from disclosure.
    (2) In responding to FOIA requests, the Agency will charge the 
following

[[Page 32]]

fees unless a waiver or reduction of fees has been granted under 
paragraph (l) of this section:
    (i) Search. (A) Search fees will be charged for all requests except 
for those made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media subject to the 
limitations of paragraph (d) of this section. Offices will charge for 
time spent searching even if no responsive records are found or if the 
records are located but are determined to be exempt from disclosure.
    (B) For searches and retrievals of requested records, either 
manually or electronically, conducted by clerical personnel, the fee 
will be $4.00 for each quarter hour of time. For searches and retrievals 
of requested records, either manually or electronically, requiring the 
use of professional personnel, the fee will be $7.00 for each quarter 
hour of time. For searches and retrievals of requested records, either 
manually or electronically, requiring the use of managerial personnel, 
the fee will be $10.25 for each quarter hour of time.
    (C) When searches and retrievals are conducted by contractors, 
requesters 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. The costs of actual computer resource usage in 
connection with such searches will also be charged, to the extent they 
can be determined.
    (ii) Duplication. Duplication fees will be charged to all 
requesters, subject to the limitations of paragraph (d) of this section. 
For either a photocopy or a computer-generated printout of a record (no 
more than one copy of which need be supplied), the fee will be fifteen 
(15) cents per page. For electronic forms of duplication, other than a 
computer-generated printout, offices will charge the direct costs of 
that duplication. Such direct costs will include the costs of the 
requested electronic medium on which the copy is to be made and the 
actual operator time and computer resource usage required to produce the 
copy, to the extent they can be determined.
    (iii) Review. Review fees will be charged only to requesters who 
make a commercial use request. Review fees will be charged only for the 
initial record review (that is, the review done when an office is 
deciding whether an exemption applies to a particular record or portion 
of a record at the initial request level). No charge will be made for 
review at the administrative appeal level for an exemption already 
applied. However, records or portions of records withheld under an 
exemption that is subsequently determined not to apply may be reviewed 
again to determine whether any other exemption not previously considered 
applies; the costs of that review will be charged when it is made 
necessary by a change of circumstances. Review fees will be charged at 
the same rates as those charged for a search under paragraph (c)(1)(i) 
of this section.
    (d) Limitations on charging fees. (1) No search or review fees will 
be charged for requests by educational institutions, noncommercial 
scientific institutions, or representatives of the news media.
    (2) No search fee or review fee will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, 
offices will provide without charge:
    (i) The first 100 pages of duplication, and
    (ii) The first two hours of search.
    (4) Whenever a total fee calculated under paragraph (c) of this 
section is $14.00 or less for any request, no fee will be charged.
    (5) The provisions of paragraphs (d)(3) and (4) of this section work 
together. This means that for requesters other than those seeking 
records for a commercial use, no fee will be charged unless the cost of 
search in excess of two hours plus the cost of duplication in excess of 
100 pages totals more than $14.00.
    (e) Notice of anticipated fees in excess of $25.00. When the Agency 
determines or estimates that the fees to be charged under this section 
will amount to more than $25.00, the Agency will notify the requester of 
the actual or estimated amount of the fees, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. The 
amount of $25.00 is cumulative for

[[Page 33]]

multi-office requests. If only a portion of the fee can be estimated 
readily, the Agency will advise the requester that the estimated fee may 
be only a portion of the total fee. When a requester has been notified 
that actual or estimated fees will amount to more than $25.00, EPA will 
do no further work on the request until the requester agrees to pay the 
anticipated total fee. This time will be excluded from the twenty (20) 
working day time limit. EPA will memorialize any such agreement in 
writing. A notice under this paragraph will offer the requester an 
opportunity to discuss the matter with Agency personnel in order to 
reformulate the request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Apart from the other provisions of 
this section, when an office chooses as a matter of administrative 
discretion to provide a special service-such as certifying that records 
are true copies or sending records by other than ordinary mail-the 
direct costs of providing the service ordinarily will be charged.
    (g) Charging interest. EPA may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 
and will accrue from the date of the billing until payment is received 
by the Agency. EPA will follow the provisions of the Debt Collection Act 
of 1982 (Pub. L. 97-365), as amended, and its administrative procedures, 
including the use of consumer reporting agencies, collection agencies, 
and offset. No penalty will be assessed against FOIA requesters for 
exercising their statutory right to ask that a fee be waived or reduced 
or to dispute a billing. If a fee is in dispute, penalties will be 
suspended upon notification.
    (h) Delinquent requesters. If requesters fail to pay all fees within 
60 calendar days of the fees assessment, they will be placed on a 
delinquency list. Subsequent FOIA requests will not be processed until 
payment of the overdue fees has first been made.
    (i) Aggregating requests. When the Agency reasonably believes that a 
requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the Agency may aggregate those requests and charge accordingly. 
The Agency may presume that multiple requests of this type made within a 
30-day period have been made in order to avoid fees. When requests are 
separated by a longer period, the Agency will aggregate them only if 
there exists a solid basis for determining that aggregation is warranted 
under all the circumstances involved. Multiple requests involving 
unrelated matters will not be aggregated.
    (j) Advance payments. (1) For requests other than those described in 
paragraphs (j)(2) and (3) of this section, an office will not require 
the requester to make an advance payment (that is, a payment made before 
EPA begins or continues work on a request). Payment owed for work 
already completed (that is, a prepayment before copies are sent to a 
requester) is not an advance payment.
    (2) When the Agency determines or estimates that a total fee to be 
charged under this section will be more than $250.00, it may require the 
requester to make an advance payment of an amount up to the amount of 
the entire anticipated fee before beginning to process the request, 
except when it receives a satisfactory assurance of full payment from a 
requester that has a history of prompt payment.
    (3) When a requester has previously failed to pay a properly charged 
FOIA fee to the Agency within 30 calendar days of the date of billing, 
the Agency may require the requester to pay the full amount due, plus 
any applicable interest, and to make an advance payment of the full 
amount of any anticipated fee, before the Agency begins to process a new 
request or continues to process a pending request from that requester.
    (4) When the Agency requires advance payment or payment due under 
paragraph (j)(3) of this section, the request will not be considered, 
and EPA will do no further work on the request until the required 
payment is made.
    (k) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any other statute 
that specifically requires an agency to set and collect fees for 
particular types of records. When

[[Page 34]]

records responsive to requests are maintained for distribution by 
agencies operating such statutorily based fee schedule programs, EPA 
will inform requesters of the steps for obtaining records from those 
sources so that they may do so most economically.
    (l) Waiver or reduction of fees. (1) Records responsive to a request 
will be furnished without charge or at a charge reduced below that 
established under paragraph (c) of this section when a FOI Office 
determines, based on all available information, that disclosure of the 
requested information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government and is not primarily in the commercial 
interest of the requester.
    (2) To determine whether the first fee waiver requirement is met, 
FOI Offices will consider the following factors:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' The 
subject of the requested records must concern identifiable operations or 
activities of the Federal government, with a connection that is direct 
and clear, not remote.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding when nothing new would be 
added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public is likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public will be considered. It will be presumed that a 
representative of the news media will satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
enhanced by the disclosure to a significant extent. FOI Offices will not 
make value judgments about whether information that would contribute 
significantly to public understanding of the operations or activities of 
the government is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
FOI Offices will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. FOI Offices will consider any commercial interest 
of the requester (with reference to the definition of ``commercial use 
request'' in paragraph (b)(1) of this section), or of any person on 
whose behalf the requester may be acting, that would be furthered by the 
requested disclosure. Requesters will be given an opportunity in the 
administrative process to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure: Whether any 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.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. FOI Offices ordinarily 
will presume that

[[Page 35]]

when a news media requester has satisfied the public interest standard, 
the public interest will be the interest primarily served by disclosure 
to that requester. Disclosure to data brokers or others who merely 
compile and market government information for direct economic return 
will not be presumed to primarily serve the public interest.
    (4) When only some of the requested records satisfy the requirements 
for a waiver of fees, a waiver will be granted for only those records.
    (5) Requests for the waiver or reduction of fees must address the 
factors listed in paragraphs (k) (l)-(3) of this section, insofar as 
they apply to each request. FOI Offices will exercise their discretion 
to consider the cost-effectiveness of their investment of administrative 
resources in deciding whether to grant waivers or reductions of fees and 
will consult the appropriate EPA offices as needed. Requests for the 
waiver or reduction of fees must be submitted along with the request.
    (6) When a fee waiver request is denied, EPA will do no further work 
on the request until it receives an assurance of payment or an appeal of 
the fee waiver adverse determination is made and a final appeal 
determination is made pursuant to Sec. 2.104(j).



Sec. 2.108  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, as 
a right, to any service or to the disclosure of any record to which such 
person is not entitled under the FOIA.



           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--

[[Page 36]]

    (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 
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 Secs. 2.201 through 2.215 govern except to 
the extent that they are modified or supplanted by the special rules of 
Secs. 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

[[Page 37]]

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 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

[[Page 38]]

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 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

[[Page 39]]

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 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

[[Page 40]]

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;
    (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]

[[Page 41]]



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.
    (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.,

[[Page 42]]

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 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

[[Page 43]]

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 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]

[[Page 44]]



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
    (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;

[[Page 45]]

    (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 
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 Secs. 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

[[Page 46]]

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 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

[[Page 47]]

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 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 Secs. 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 Secs. 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,

[[Page 48]]

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 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 Headquarters Freedom 
of Information Operations (1105), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., 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 Secs. 2.301(g) and 2.301(h) 
and analogous provisions in Secs. 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

[[Page 49]]

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:
    (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]

[[Page 50]]



Secs. 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 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

[[Page 51]]

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 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 Secs. 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,

[[Page 52]]

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 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

[[Page 53]]

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.
    (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

[[Page 54]]

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 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

[[Page 55]]

    (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.
    (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.

[[Page 56]]

    (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).
    (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.

[[Page 57]]

    (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 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

[[Page 58]]

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 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

[[Page 59]]

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).
    (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

[[Page 60]]

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 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

[[Page 61]]

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 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

[[Page 62]]

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 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

[[Page 63]]

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 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

[[Page 64]]

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;
    (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

[[Page 65]]

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:
    (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

[[Page 66]]

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 
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

[[Page 67]]

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.
    (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,

[[Page 68]]

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 Secs. 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 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.

[[Page 69]]



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

[[Page 70]]



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.



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--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A--Introduction

Sec.
5.100  Purpose and effective date.
5.105  Definitions.
5.110  Remedial and affirmative action and self-evaluation.
5.115  Assurance required.
5.120  Transfers of property.
5.125  Effect of other requirements.
5.130  Effect of employment opportunities.
5.135  Designation of responsible employee and adoption of grievance 
          procedures.
5.140  Dissemination of policy.

                           Subpart B--Coverage

5.200  Application.
5.205  Educational institutions and other entities controlled by 
          religious organizations.
5.210  Military and merchant marine educational institutions.
5.215  Membership practices of certain organizations.
5.220  Admissions.
5.225  Educational institutions eligible to submit transition plans.
5.230  Transition plans.
5.235  Statutory amendments.

     Subpart C--Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

5.300  Admission.
5.305  Preference in admission.
5.310  Recruitment.

 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

5.400  Education programs or activities.
5.405  Housing.
5.410  Comparable facilities.
5.415  Access to course offerings.
5.420  Access to schools operated by LEAs.
5.425  Counseling and use of appraisal and counseling materials.
5.430  Financial assistance.
5.435  Employment assistance to students.
5.440  Health and insurance benefits and services.
5.445  Marital or parental status.
5.450  Athletics.
5.455  Textbooks and curricular material.

Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

5.500  Employment.
5.505  Employment criteria.
5.510  Recruitment.
5.515  Compensation.
5.520  Job classification and structure.
5.525  Fringe benefits.
5.530  Marital or parental status.
5.535  Effect of state or local law or other requirements.
5.540  Advertising.

[[Page 71]]

5.545  Pre-employment inquiries.
5.550  Sex as a bona fide occupational qualification.

                          Subpart F--Procedures

5.600  Notice of covered programs.
5.605  Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52890, Aug. 30, 2000, unless otherwise noted.



                         Subpart A--Introduction



Sec. 5.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec. 5.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means the Director, Office of Civil 
Rights.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;

[[Page 72]]

    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Secs. 5.100 
through 5.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.

[65 FR 52865, 52890, Aug. 30, 2000]



Sec. 5.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive

[[Page 73]]

Order 12086, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 5.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec. 5.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether occurring prior to or 
subsequent to the submission to the designated agency official of such 
assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 5.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Secs. 5.205 through 5.235(a).

[[Page 74]]



Sec. 5.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec. 5.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec. 5.135  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec. 5.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Secs. 5.300 through 5.310 do not apply to the recipient, and that 
inquiries concerning the application of Title IX and

[[Page 75]]

these Title IX regulations to such recipient may be referred to the 
employee designated pursuant to Sec. 5.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B--Coverage



Sec. 5.200  Application.

    Except as provided in Secs. 5.205 through 5.235(a), these Title IX 
regulations apply to every recipient and to each education program or 
activity operated by such recipient that receives Federal financial 
assistance.



Sec. 5.205  Educational institutions and other entities controlled by 
religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec. 5.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec. 5.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the

[[Page 76]]

membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 5.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Secs. 5.225 and 5.230, and Secs. 5.300 through 5.310, each 
administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of Secs. 5.300 through .310. Except as provided in 
paragraphs (d) and (e) of this section, Secs. 5.300 through 5.310 apply 
to each recipient. A recipient to which Secs. 5.300 through 5.310 apply 
shall not discriminate on the basis of sex in admission or recruitment 
in violation of Secs. 5.300 through 5.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Secs. 5.300 through 5.310 apply only to institutions of vocational 
education, professional education, graduate higher education, and public 
institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Secs. 5.300 through 5.310 do not apply to any public institution of 
undergraduate higher education that traditionally and continually from 
its establishment has had a policy of admitting students of only one 
sex.



Sec. 5.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Secs. 5.300 through 5.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Secs. 5.300 through 5.310.



Sec. 5.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 5.225 applies 
and that is composed of more than one administratively separate unit may 
submit either a single transition plan applicable to all such units, or 
a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 5.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Secs. 5.300 through 5.310 
unless such treatment is necessitated by an obstacle identified in 
paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of

[[Page 77]]

students on the basis of sex, each educational institution to which 
Sec. 5.225 applies shall include in its transition plan, and shall 
implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 5.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to

[[Page 78]]

these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C--Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 5.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Secs. 5.300 through Secs. 5.310 apply, except as 
provided in Secs. 5.225 and 5.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Secs. 5.300 through 5.310 apply shall 
not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Secs. 5.300 through 5.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 5.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 5.305  Preference in admission.

    A recipient to which Secs. 5.300 through 5.310 apply shall not give 
preference to applicants for admission, on the basis of attendance at 
any educational institution or other school or entity that

[[Page 79]]

admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Secs. 5.300 through 5.310.



Sec. 5.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Secs. 5.300 
through 5.310 apply shall not discriminate on the basis of sex in the 
recruitment and admission of students. A recipient may be required to 
undertake additional recruitment efforts for one sex as remedial action 
pursuant to Sec. 5.110(a), and may choose to undertake such efforts as 
affirmative action pursuant to Sec. 5.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Secs. 5.300 through 5.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Secs. 5.300 through 5.310.



 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 5.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
5.400 through 5.455 do not apply to actions of a recipient in connection 
with admission of its students to an education program or activity of a 
recipient to which Secs. 5.300 through 5.310 do not apply, or an entity, 
not a recipient, to which Secs. 5.300 through 5.310 would not apply if 
the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Secs. 5.400 through 
5.455, in providing any aid, benefit, or service to a student, a 
recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education

[[Page 80]]

program or activity not operated wholly by such recipient, or that 
facilitates, permits, or considers such participation as part of or 
equivalent to an education program or activity operated by such 
recipient, including participation in educational consortia and 
cooperative employment and student-teaching assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 5.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec. 5.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 5.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.

[[Page 81]]

    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 5.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 5.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 5.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.

[[Page 82]]

    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 5.450.



Sec. 5.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates 
Secs. 5.500 through 5.550.



Sec. 5.440  Health and insurance benefits and services.

    Subject to Sec. 5.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Secs. 5.500 through 5.550 if it were provided to employees of 
the recipient. This section shall not prohibit a recipient from 
providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec. 5.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 5.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy

[[Page 83]]

and recovery therefrom in the same manner and under the same policies as 
any other temporary disability with respect to any medical or hospital 
benefit, service, plan, or policy that such recipient administers, 
operates, offers, or participates in with respect to students admitted 
to the recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 5.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.

[[Page 84]]



Sec. 5.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 5.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Secs. 5.500 
through 5.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Secs. 5.500 through 5.550 apply 
to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 5.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 5.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex

[[Page 85]]

in the recruitment or hiring of employees, or has been found to have so 
discriminated in the past, the recipient shall recruit members of the 
sex so discriminated against so as to overcome the effects of such past 
or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Secs. 5.500 through 5.550.



Sec. 5.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 5.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 5.550.



Sec. 5.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 5.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 5.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 5.235(d), a 
recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient

[[Page 86]]

leave or accrued employment time to qualify for leave under such a 
policy, a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, and recovery therefrom as a justification for 
a leave of absence without pay for a reasonable period of time, at the 
conclusion of which the employee shall be reinstated to the status that 
she held when the leave began or to a comparable position, without 
decrease in rate of compensation or loss of promotional opportunities, 
or any other right or privilege of employment.



Sec. 5.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Secs. 5.500 through 5.550 is not obviated or alleviated by the existence 
of any State or local law or other requirement that imposes prohibitions 
or limits upon employment of members of one sex that are not imposed 
upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 5.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec. 5.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 5.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Secs. 5.500 
through 5.550 provided it is shown that sex is a bona fide occupational 
qualification for that action, such that consideration of sex with 
regard to such action is essential to successful operation of the 
employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F--Procedures



Sec. 5.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec. 5.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 40 CFR 7.105 through 7.135.

[65 FR 52890, Aug. 30, 2000]

[[Page 87]]



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.

 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.

[[Page 88]]

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 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

[[Page 89]]

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-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.

[[Page 90]]

    (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.
    (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

[[Page 91]]

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; 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

[[Page 92]]

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 
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

[[Page 93]]

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;
    (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

[[Page 94]]

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.



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.

[[Page 95]]



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 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

[[Page 96]]

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 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

[[Page 97]]

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:
    (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

[[Page 98]]

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, 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,

[[Page 99]]

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 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

[[Page 100]]

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:
    (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

[[Page 101]]

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 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

[[Page 102]]

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, 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,

[[Page 103]]

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 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

[[Page 104]]

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 Secs. 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 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

[[Page 105]]

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 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.

[[Page 106]]

    (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. 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

[[Page 107]]

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 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;

[[Page 108]]

    (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 Secs. 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 Secs. 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, 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

[[Page 109]]

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:
    (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).

[[Page 110]]



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.
    (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.

[[Page 111]]

    (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 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

[[Page 112]]

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 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

[[Page 113]]

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 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

[[Page 114]]

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 
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.

[[Page 115]]



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 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,

[[Page 116]]

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;
    (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.

[[Page 117]]

    (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.
[GRAPHIC] [TIFF OMITTED] TC14NO91.165


[[Page 118]]





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 119]]

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 120]]

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 121]]

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 122]]

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 123]]

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 to Part 6--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 124]]

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 125]]

    (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 126]]

    (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

[[Page 127]]

Federal Domestic Assistance under the 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 organs; respiratory, including speech

[[Page 128]]

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 129]]



   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 130]]

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 131]]

    (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 132]]

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 133]]

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 134]]

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 135]]

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 136]]

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, OCR

[[Page 137]]

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, 
1200 Pennsylvania Ave., NW., 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 138]]

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 8--ENVIRONMENTAL IMPACT ASSESSMENT OF NONGOVERNMENTAL ACTIVITIES IN 
ANTARCTICA--Table of Contents




Sec.
8.1  Purpose.
8.2  Applicability and effect.
8.3  Definitions.
8.4  Preparation of environmental documents, generally.
8.5  Submission of environmental documents.
8.6  Preliminary environmental review.
8.7  Initial environmental evaluation.
8.8  Comprehensive environmental evaluation.
8.9  Measures to assess and verify environmental impacts.
8.10  Cases of emergency.

[[Page 139]]

8.11  Prohibited acts, enforcement and penalties.
8.12  Coordination of reviews from other Parties.

    Authority: 16 U.S.C. 2401 et seq., as amended, 16 U.S.C. 2403a.

    Source: 66 FR 63468, Dec. 6, 2001, unless otherwise noted.



Sec. 8.1  Purpose.

    (a) This part is issued pursuant to the Antarctic Science, Tourism, 
and Conservation Act of 1996. As provided in that Act, this part 
implements the requirements of Article 8 and Annex I to the Protocol on 
Environmental Protection to the Antarctic Treaty of 1959 and provides 
for:
    (1) The environmental impact assessment of nongovernmental 
activities, including tourism, for which the United States is required 
to give advance notice under paragraph 5 of Article VII of the Antarctic 
Treaty of 1959; and
    (2) Coordination of the review of information regarding 
environmental impact assessment received by the United States from other 
Parties under the Protocol.
    (b) The procedures in this part are designed to: ensure that 
nongovernmental operators identify and assess the potential impacts of 
their proposed activities, including tourism, on the Antarctic 
environment; that operators consider these impacts in deciding whether 
or how to proceed with proposed activities; and that operators provide 
environmental documentation pursuant to the Act and Annex I of the 
Protocol. These procedures are consistent with and implement the 
environmental impact assessment provisions of Article 8 and Annex I to 
the Protocol on Environmental Protection to the Antarctic Treaty.



Sec. 8.2  Applicability and effect.

    (a) This part is intended to ensure that potential environmental 
effects of nongovernmental activities undertaken in Antarctica are 
appropriately identified and considered by the operator during the 
planning process and that to the extent practicable, appropriate 
environmental safeguards which would mitigate or prevent adverse impacts 
on the Antarctic environment are identified by the operator.
    (b) The requirements set forth in this part apply to nongovernmental 
activities for which the United States is required to give advance 
notice under paragraph 5 of Article VII of the Antarctic Treaty of 1959: 
All nongovernmental expeditions to and within Antarctica organized in or 
proceeding from its territory.
    (c) This part does not apply to activities undertaken in the 
Antarctic Treaty area that are governed by the Convention on the 
Conservation of Antarctic Marine Living Resources or the Convention for 
the Conservation of Antarctic Seals. Persons traveling to Antarctica are 
subject to the requirements of the Marine Mammal Protection Act, 16 
U.S.C. 1371 et seq.



Sec. 8.3  Definitions.

    As used in this part:
    Act means 16 U.S.C. 2401 et seq., Public Law 104-227, the Antarctic 
Science, Tourism, and Conservation Act of 1996.
    Annex I refers to Annex I, Environmental Impact Assessment, of the 
Protocol.
    Antarctic environment means the natural and physical environment of 
Antarctica and its dependent and associated ecosystems, but excludes 
social, economic, and other environments.
    Antarctic Treaty area means the area south of 60 degrees south 
latitude.
    Antarctic Treaty Consultative Meeting (ATCM) means a meeting of the 
Parties to the Antarctic Treaty, held pursuant to Article IX(1) of the 
Treaty.
    Antarctica means the Antarctic Treaty area; i.e., the area south of 
60 degrees south latitude.
    Comprehensive Environmental Evaluation (CEE) means a study of the 
reasonably foreseeable potential effects of a proposed activity on the 
Antarctic environment, prepared in accordance with the provisions of 
this part and includes all comments received thereon. (See: Sec. 8.8.)
    Environmental document or environmental documentation (Document) 
means a preliminary environmental review memorandum, an initial 
environmental evaluation, or a comprehensive environmental evaluation.

[[Page 140]]

    Environmental impact assessment (EIA) means the environmental review 
process required by the provisions of this part and by Annex I of the 
Protocol, and includes preparation by the operator and U.S. government 
review of an environmental document, and public access to and 
circulation of environmental documents to other Parties and the 
Committee on Environmental Protection as required by Annex I of the 
Protocol.
    EPA means the Environmental Protection Agency.
    Expedition means any activity undertaken by one or more 
nongovernmental persons organized within or proceeding from the United 
States to or within the Antarctic Treaty area for which advance 
notification is required under Paragraph 5 of Article VII of the Treaty.
    Impact means impact on the Antarctic environment and dependent and 
associated ecosystems.
    Initial Environmental Evaluation (IEE) means a study of the 
reasonably foreseeable potential effects of a proposed activity on the 
Antarctic environment prepared in accordance with Sec. 8.7.
    More than a minor or transitory impact has the same meaning as the 
term ``significantly'' as defined in regulations under the National 
Environmental Policy Act at 40 CFR 1508.27.
    Operator or operators means any person or persons organizing a 
nongovernmental expedition to or within Antarctica.
    Person has the meaning given that term in section 1 of title 1, 
United States code, and includes any person subject to the jurisdiction 
of the United States except that the term does not include any 
department, agency, or other instrumentality of the Federal Government.
    Preliminary environmental review means the environmental review 
described under that term in Sec. 8.6.
    Preliminary Environmental Review Memorandum (PERM) means the 
documentation supporting the conclusion of the preliminary environmental 
review that the impact of a proposed activity will be less than minor or 
transitory on the Antarctic environment.
    Protocol means the Protocol on Environmental Protection to the 
Antarctic Treaty, done at Madrid October 4, 1991, and all annexes 
thereto which are in force for the United States.
    This part means 40 CFR part 8.



Sec. 8.4  Preparation of environmental documents, generally.

    (a) Basic information requirements. In addition to the information 
required pursuant to other sections of this part, all environmental 
documents shall contain the following:
    (1) The name, mailing address, and phone number of the operator;
    (2) The anticipated date(s) of departure of each expedition to 
Antarctica;
    (3) An estimate of the number of persons in each expedition;
    (4) The means of conveyance of expedition(s) to and within 
Antarctica;
    (5) Estimated length of stay of each expedition in Antarctica;
    (6) Information on proposed landing sites in Antarctica; and
    (7) Information concerning training of staff, supervision of 
expedition members, and what other measures, if any, that will be taken 
to avoid or minimize possible environmental impacts.
    (b) Preparation of an environmental document. Unless an operator 
determines and documents that a proposed activity will have less than a 
minor or transitory impact on the Antarctic environment, the operator 
will prepare an IEE or CEE in accordance with this part. In making the 
determination what level of environmental documentation is appropriate, 
the operator should consider, as applicable, whether and to what degree 
the proposed activity:
    (1) Has the potential to adversely affect the Antarctic environment;
    (2) May adversely affect climate or weather patterns;
    (3) May adversely affect air or water quality;
    (4) May affect atmospheric, terrestrial (including aquatic), 
glacial, or marine environments;
    (5) May detrimentally affect the distribution, abundance, or 
productivity of species, or populations of species of fauna and flora;
    (6) May further jeopardize endangered or threatened species or 
populations of such species;

[[Page 141]]

    (7) May degrade, or pose substantial risk to, areas of biological, 
scientific, historic, aesthetic, or wilderness significance;
    (8) Has highly uncertain environmental effects, or involves unique 
or unknown environmental risks; or
    (9) Together with other activities, the effects of any one of which 
is individually insignificant, may have at least minor or transitory 
cumulative environmental effects.
    (c) Type of environmental document. The type of environmental 
document required under this part depends upon the nature and intensity 
of the environmental impacts that could result from the activity under 
consideration. A PERM must be prepared by the operator to document the 
conclusion of the operator's preliminary environmental review that the 
impact of a proposed activity on the Antarctic environment will be less 
than minor or transitory. (See Sec. 8.6.) An IEE must be prepared by the 
operator for proposed activities which may have at least (but no more 
than) a minor or transitory impact on the Antarctic environment. (See 
Sec. 8.7.) A CEE must be prepared by the operator if an IEE indicates, 
or if it is otherwise determined, that a proposed activity is likely to 
have more than a minor or transitory impact on the Antarctic environment 
(See Sec. 8.8.)
    (d) Incorporation of information, consolidation of environmental 
documentation, and multi-year environmental documentation. (1) An 
operator may incorporate material into an environmental document by 
referring to it in the document when the effect will be to reduce 
paperwork without impeding the review of the environmental document by 
EPA and other federal agencies. The incorporated material shall be cited 
and its content briefly described. No material may be incorporated by 
referring to it in the document unless it is reasonably available to the 
EPA.
    (2) Provided that environmental documentation complies with all 
applicable provisions of Annex I to the Protocol and this part and is 
appropriate in light of the specific circumstances of the operator's 
proposed expedition or expeditions, an operator may include more than 
one proposed expedition within one environmental document and one 
environmental document may also be used to address expeditions being 
carried out by more than one operator provided that the environmental 
document indicates the names of each operator for which the 
environmental documentation is being submitted pursuant to obligations 
under this part.
    (e) Multi-year environmental documentation. (1) Provided that 
environmental documentation complies with all applicable provisions of 
Annex I to the Protocol and this part, an operator may submit 
environmental documentation for proposed expeditions for a period of up 
to five consecutive austral summer seasons, provided that the conditions 
described in the multi-year environmental document, including the 
assessment of cumulative impacts, are unchanged and meets the provisions 
of paragraphs (e)(1) (i) through (iii) of this section.
    (i) The operator shall identify the environmental documentation 
submitted for multi-year documentation purposes in the first year it is 
submitted. If the operator, or operators, fail to make this initial 
identification to EPA, this provision shall not be in effect although 
subsequent years' submissions by the operator, or operators, may use 
this environmental documentation as provided in paragraphs (d) (1) and 
(2) of this section.
    (ii) In subsequent years, up to a total maximum of five years, the 
operator, or operators, shall reference the multi-year documentation 
identified initially if it is necessary to update the basic information 
requirements listed in paragraph (a) of this section.
    (iii) An operator, or operators, may supplement a multi-year 
environmental document for an additional activity or activities by 
providing information regarding the proposed activity in accordance with 
the appropriate provisions of this part. The operator, or operators, 
shall identify this submission as a proposed supplement to the multi-
year documentation in effect. Addition of the supplemental information 
shall not extend the period of the multi-year environmental 
documentation beyond the time period associated with the documentation 
as originally submitted.

[[Page 142]]

    (2) Multi-year environmental documentation may include more than one 
proposed expedition within the environmental document and the multi-year 
environmental document may also be used to address expeditions being 
carried out by more than one operator provided that the environmental 
document indicates the names of each operator for which the 
environmental documentation is being submitted pursuant to obligations 
under this part.
    (3) The schedules for multi-year environmental documentation depend 
on the level of the environmental document and shall be the same as the 
schedules for comparable environmental documentation submitted on an 
annual basis; e.g., a multi-year PERM shall comply with the schedule in 
Sec. 8.6, a multi-year IEE shall comply with the schedule in Sec. 8.7, 
and a multi-year CEE shall comply with the schedule in Sec. 8.8. These 
schedules apply to the operator's submission of the initial multi-year 
environmental document; the operator's subsequent annual submissions 
pursuant to paragraphs (e)(1) (ii) and (iii) of this section; EPA's 
review, in consultation with other interested federal agencies, and 
comment on the multi-year environmental documentation and subsequent 
annual submissions; and a finding the EPA may make, with the concurrence 
of the National Science Foundation, that the environmental documentation 
submitted does not meet the requirements of Article 8 and Annex I of the 
Protocol and the provisions of this part.



Sec. 8.5  Submission of environmental documents.

    (a) An operator shall submit environmental documentation to the EPA 
for review. The EPA, in consultation with other interested federal 
agencies, will carry out a review to determine if the submitted 
environmental documentation meets the requirements of Article 8 and 
Annex I of the Protocol and the provisions of this part. The EPA will 
provide its comments, if any, on the environmental documentation to the 
operator and will consult with the operator regarding any suggested 
revisions. If EPA has no comments, or if the documentation is 
satisfactorily revised in response to EPA's comments, and the operator 
does not receive a notice from EPA that the environmental documentation 
does not meet the requirements of Article 8 and Annex I of the Protocol 
and the provisions of this part, the operator will have no further 
obligations pursuant to the applicable requirements of this part 
provided that any appropriate measures, which may include monitoring, 
are put in place to assess and verify the impact of the activity. 
Alternatively, following final response from the operator, the EPA, in 
consultation with other federal agencies and with the concurrence of the 
National Science Foundation, will inform the operator that EPA finds 
that the environmental documentation does not meet the requirements of 
Article 8 and Annex I of the Protocol and the provisions of this part. 
If the operator then proceeds with the expedition without fulfilling the 
requirements of this part, the operator is subject to enforcement 
proceedings pursuant to sections 7, 8, and 9 of the Antarctic 
Conservation Act, as amended by the Act; 16 U.S.C. 2407, 2408, 2409, and 
45 CFR part 672.
    (b) The EPA may waive or modify deadlines pursuant to this part 
where EPA determines an operator is acting in good faith and that 
circumstances outside the control of the operator created delays, 
provided that the environmental documentation fully meets deadlines 
under the Protocol.



Sec. 8.6  Preliminary environmental review.

    (a) Unless an operator has determined to prepare an IEE or CEE, the 
operator shall conduct a preliminary environmental review that assesses 
the potential direct and reasonably foreseeable indirect impacts on the 
Antarctic environment of the proposed expedition. A Preliminary 
Environmental Review Memorandum (PERM) shall contain sufficient detail 
to assess whether the proposed activity may have less than a minor or 
transitory impact, and shall be submitted to the EPA for review no less 
than 180 days before the proposed departure of the expedition. The EPA, 
in consultation with other interested federal agencies, will review the 
PERM to determine if it is sufficient to demonstrate that the

[[Page 143]]

activity will have less than a minor or transitory impact or whether 
additional environmental documentation, i.e., an IEE or CEE, is required 
to meet the obligations of Article 8 and Annex I of the Protocol. The 
EPA will provide its comments to the operator within fifteen (15) days 
of receipt of the PERM, and the operator shall have seventy-five (75) 
days to prepare a revised PERM or an IEE, if necessary. Following the 
final response from the operator, EPA may make a finding that the 
environmental documentation submitted does not meet the requirements of 
Article 8 and Annex I of the Protocol and the provisions of this part. 
This finding will be made with the concurrence of the National Science 
Foundation. If EPA does not provide such notice within thirty (30) days, 
the operator will be deemed to have met the requirements of this part 
provided that any required procedures, which may include appropriate 
monitoring, are put in place to assess and verify the impact of the 
activity.
    (b) If EPA recommends an IEE and one is prepared and submitted 
within the seventy-five (75) day response period, it will be reviewed 
under the time frames set out for an IEE in Sec. 8.7. If EPA recommends 
a CEE and one is prepared, it will be reviewed under the time frames set 
out for a CEE in Sec. 8.8.



Sec. 8.7  Initial environmental evaluation.

    (a) Submission of IEE to the EPA. Unless a PERM has been submitted 
pursuant to Sec. 8.6 which meets the environmental documentation 
requirements under Article 8 and Annex I to the Protocol and the 
provisions of this part or a CEE is being prepared, an IEE shall be 
submitted by the operator to the EPA no fewer than ninety (90) days 
before the proposed departure of the expedition.
    (b) Contents. An IEE shall contain sufficient detail to assess 
whether a proposed activity may have more than a minor or transitory 
impact on the Antarctic environment and shall include the following 
information:
    (1) A description of the proposed activity, including its purpose, 
location, duration, and intensity; and
    (2) Consideration of alternatives to the proposed activity and any 
impacts that the proposed activity may have on the Antarctic 
environment, including consideration of cumulative impacts in light of 
existing and known proposed activities.
    (c) Further environmental review. (1) The EPA, in consultation with 
other interested federal agencies, will review an IEE to determine 
whether the IEE meets the requirements under Annex I to the Protocol and 
the provisions of this part. The EPA will provide its comments to the 
operator within thirty (30) days of receipt of the IEE, and the operator 
will have forty-five (45) days to prepare a revised IEE, if necessary. 
Following the final response from the operator, EPA may make a finding 
that the documentation submitted does not meet the requirements of 
Article 8 and Annex I of the Protocol and the provisions of this part. 
This finding will be made with the concurrence of the National Science 
Foundation. If such a notice is required, EPA will provide it within 
fifteen (15) days of receiving the final IEE from the operator or, if 
the operator does not provide a final IEE, within sixty (60) days 
following EPA's comments on the original IEE. If EPA does not provide 
notice within these time limits, the operator will be deemed to have met 
the requirements of this part provided that any required procedures, 
which may include appropriate monitoring, are put in place to assess and 
verify the impact of the activity.
    (2) If a CEE is required, the operator must adhere to the time 
limits applicable to such documentation. (See: Sec. 8.8.) In this event 
EPA, at the operator's request, will consult with the operator regarding 
possible changes in the proposed activity which would allow preparation 
of an IEE.



Sec. 8.8  Comprehensive environmental evaluation.

    (a) Preparation of a CEE. Unless a PERM or an IEE has been submitted 
and determined to meet the environmental documentation requirements of 
this part, the operator shall prepare a

[[Page 144]]

CEE. A CEE shall contain sufficient information to enable informed 
consideration of the reasonably foreseeable potential environmental 
effects of a proposed activity and possible alternatives to that 
proposed activity. A CEE shall include the following:
    (1) A description of the proposed activity, including its purpose, 
location, duration and intensity, and possible alternatives to the 
activity, including the alternative of not proceeding, and the 
consequences of those alternatives;
    (2) A description of the initial environmental reference state with 
which predicted changes are to be compared and a prediction of the 
future environmental reference state in the absence of the proposed 
activity;
    (3) A description of the methods and data used to forecast the 
impacts of the proposed activity;
    (4) Estimation of the nature, extent, duration and intensity of the 
likely direct impacts of the proposed activity;
    (5) A consideration of possible indirect or second order impacts 
from the proposed activity;
    (6) A consideration of cumulative impacts of the proposed activity 
in light of existing activities and other known planned activities;
    (7) Identification of measures, including monitoring programs, that 
could be taken to minimize or mitigate impacts of the proposed activity 
and to detect unforeseen impacts and that could provide early warning of 
any adverse effects of the activity as well as to deal promptly and 
effectively with accidents;
    (8) Identification of unavoidable impacts of the proposed activity;
    (9) Consideration of the effects of the proposed activity on the 
conduct of scientific research and on other existing uses and values;
    (10) An identification of gaps in knowledge and uncertainties 
encountered in compiling the information required under this section;
    (11) A non-technical summary of the information provided under this 
section; and
    (12) The name and address of the person or organization which 
prepared the CEE and the address to which comments thereon should be 
directed.
    (b) Submission of Draft CEE to the EPA and Circulation to Other 
Parties. (1) Any operator who plans a nongovernmental expedition that 
would require a CEE must submit a draft of the CEE by December 1 of the 
preceding year. Within fifteen (15) days of receipt of the draft CEE, 
EPA will: send it to the Department of State which will circulate it to 
all Parties to the Protocol and forward it to the Committee for 
Environmental Protection established by the Protocol, and publish notice 
of receipt of the CEE and request for comments on the CEE in the Federal 
Register, and will provide copies to any person upon request. The EPA 
will accept public comments on the CEE for a period of ninety (90) days 
following notice in the Federal Register. The EPA, in consultation with 
other interested federal agencies, will evaluate the CEE to determine if 
the CEE meets the requirements under Article 8 and Annex I to the 
Protocol and the provisions of this part and will transmit its comments 
to the operator within 120 days following publication in the Federal 
Register of the notice of availability of the CEE.
    (2) The operator shall send a final CEE to EPA at least seventy-five 
(75) days before commencement of the proposed activity in the Antarctic 
Treaty area. The CEE must address and must include (or summarize) any 
comments on the draft CEE received from EPA, the public, and the 
Parties. Following the final response from the operator, the EPA will 
inform the operator if EPA, with the concurrence of the National Science 
Foundation, makes the finding that the environmental documentation 
submitted does not meet the requirements of Article 8 and Annex I of the 
Protocol and the provisions of this part. This notification will occur 
within fifteen (15) days of submittal of the final CEE by the operator 
if the final CEE is submitted by the operator within the time limits set 
out in this section. If no final CEE is submitted or the operator fails 
to meet these time limits, EPA will provide such notification sixty (60) 
days prior to departure of the expedition. If EPA does not provide such 
notice, the operator will be deemed to have met the requirements of this 
part provided that procedures, which include appropriate monitoring,

[[Page 145]]

are put in place to assess and verify the impact of the activity. The 
EPA will transmit the CEE, along with a notice of any decisions by the 
operator relating thereto, to the Department of State which shall 
circulate it to all Parties no later than sixty (60) days before 
commencement of the proposed activity in the Antarctic Treaty area. The 
EPA will also publish a notice of availability of the final CEE in the 
Federal Register.
    (3) No final decision shall be taken to proceed with any activity 
for which a CEE is prepared unless there has been an opportunity for 
consideration of the draft CEE by the Antarctic Treaty Consultative 
Meeting on the advice of the Committee for Environmental Protection, 
provided that no expedition need be delayed through the operation of 
paragraph 5 of Article 3 to Annex I of the Protocol for longer than 15 
months from the date of circulation of the draft CEE.
    (c) Decisions based on CEE. The decision to proceed, based on 
environmental documentation that meets the requirements under Article 8 
and Annex I to the Protocol and the provisions of this part, rests with 
the operator. Any decision by an operator on whether to proceed with or 
modify a proposed activity for which a CEE was required shall be based 
on the CEE and other relevant considerations.



Sec. 8.9  Measures to assess and verify environmental impacts.

    (a) The operator shall conduct appropriate monitoring of key 
environmental indicators as proposed in the CEE to assess and verify the 
potential environmental impacts of activities which are the subject of a 
CEE. The operator may also need to carry out monitoring in order to 
assess and verify the impact of an activity for which an IEE has been 
prepared.
    (b) All proposed activities for which an IEE or CEE has been 
prepared shall include procedures designed to provide a regular and 
verifiable record of the impacts of these activities, in order, inter 
alia, to:
    (1) Enable assessments to be made of the extent to which such 
impacts are consistent with the Protocol; and
    (2) Provide information useful for minimizing and mitigating those 
impacts, and, where appropriate, information on the need for suspension, 
cancellation, or modification of the activity.



Sec. 8.10  Cases of emergency.

    This part shall not apply to activities taken in cases of emergency 
relating to the safety of human life or of ships, aircraft, equipment 
and facilities of high value, or the protection of the environment, 
which require an activity to be undertaken without completion of the 
procedures set out in this part. Notice of any such activities which 
would have otherwise required the preparation of a CEE shall be provided 
within fifteen (15) days to the Department of State, as provided in this 
paragraph, for circulation to all Parties to the Protocol and to the 
Committee on Environmental Protection, and a full explanation of the 
activities carried out shall be provided within forty-five (45) days of 
those activities. Notification shall be provided to: The Director, The 
Office of Oceans Affairs, OES/OA, Room 5805, Department of State, 2201 C 
Street, NW, Washington, DC 20520-7818.



Sec. 8.11  Prohibited acts, enforcement and penalties.

    (a) It shall be unlawful for any operator to violate this part.
    (b) An operator who violates any of this part is subject to 
enforcement, which may include civil and criminal enforcement 
proceedings, and penalties, pursuant to sections 7,8, and 9 of the 
Antarctic Conservation Act, as amended by the Act; 16 U.S.C. 2407, 2408, 
2409, and 45 CFR part 672.



Sec. 8.12  Coordination of reviews from other Parties.

    (a) Upon receipt of a draft CEE from another Party, the Department 
of State shall publish notice in the Federal Register and shall 
circulate a copy of the CEE to all interested federal agencies. The 
Department of State shall coordinate responses from federal agencies to 
the CEE and shall transmit the coordinated response to the Party which 
has circulated the CEE. The Department of State shall make a copy of

[[Page 146]]

the CEE available upon request to the public.
    (b) Upon receipt of the annual list of IEEs from another Party 
prepared in accordance with Article 2 of Annex I and any decisions taken 
in consequence thereof, the Department of State shall circulate a copy 
to all interested federal agencies. The Department of State shall make a 
copy of the list of IEEs prepared in accordance with Article 2 and any 
decisions taken in consequence thereof available upon request to the 
public.
    (c) Upon receipt of a description of appropriate national procedures 
for environmental impact assessments from another Party, the Department 
of State shall circulate a copy to all interested federal agencies. The 
Department of State shall make a copy of these descriptions available 
upon request to the public.
    (d) Upon receipt from another Party of significant information 
obtained, and any action taken in consequence therefrom from procedures 
put in place with regard to monitoring pursuant to Articles 2(2) and 5 
of Annex I to the Protocol, the Department of State shall circulate a 
copy to all interested federal agencies. The Department of State shall 
make a copy of this information available upon request to the public.
    (e) Upon receipt from another Party of a final CEE, the Department 
of State shall circulate a copy to all interested federal agencies. The 
Department of State shall make a copy available upon request to the 
public.



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 regulations by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act (PRA). No 
person is required to respond to an information collection request 
regulated by the PRA unless a valid control number assigned by OMB is 
displayed in either this part, another part of the Code of Federal 
Regulations, a valid Federal Register notice, or by other appropriate 
means.

------------------------------------------------------------------------
                40 CFR citation                      OMB control No.
------------------------------------------------------------------------
                           Public Information
------------------------------------------------------------------------
Part 2, subpart B..............................                2020-0003
------------------------------------------------------------------------
    Environmental Impact Assessment of Nongovernmental Activities in
                               Antarctica
------------------------------------------------------------------------
8.5-8.10.......................................                2020-0007
------------------------------------------------------------------------
   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

[[Page 147]]

 
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
35.3540 (c)....................................                2040-0185
35.3545 (a)-(f)................................                2040-0185
35.3550 (a)-(p)................................                2040-0185
35.3555 (a)-(d)................................                2040-0185
35.3560 (a), (d)-(g)...........................                2040-0185
35.3565 (a)-(f)................................                2040-0185
35.3570 (a)-(d)................................                2040-0185
35.3575 (a)-(e)................................                2040-0185
35.3580 (a)-(h)................................                2040-0185
35.3585 (b)-(c)................................                2040-0185
35.6055(a)(2)..................................                2030-0038
35.6055(b)(1)..................................                2030-0038
35.6055(b)(2)(i)-(ii)..........................                2030-0038
35.6105(a)(2)(i)-(v), (vii)....................                2030-0038
35.6110(b)(2)..................................                2030-0038
35.6120........................................                2030-0038
35.6145........................................                2030-0038
35.6155(a), (c)................................                2030-0038
35.6230(a), (c)................................                2030-0038
35.6300(a)(3)..................................                2030-0038
35.6315(c).....................................                2030-0038
35.6320........................................                2030-0038
35.6340(a).....................................                2030-0038
35.6350........................................                2030-0038
35.6500........................................                2030-0038
35.6550(a)(1)(ii)..............................                2030-0038
35.6550(b)(1)(iii).............................                2030-0038
35.6550(b)(2)(i)...............................                2030-0038
35.6585........................................                2030-0038
35.6595(a), (b)................................                2030-0038
35.6600(a).....................................                2030-0038
35.6650........................................                2030-0038
35.6655........................................                2030-0038
35.6660........................................                2030-0038
35.6665(a), (b)................................                2030-0038
35.6700........................................                2030-0038
35.6705........................................                2030-0038
35.6710........................................                2030-0038
35.6805........................................                2030-0038
35.6815(a), (c), (d)...........................                2030-0038
35.9000-35.9070................................                2040-0138
------------------------------------------------------------------------
                               Fellowships
------------------------------------------------------------------------
46.155.........................................                2030-0004
46.170(a)......................................                2030-0020
46.185(a)......................................                2030-0020
46.190(a) and (b)..............................                2030-0020
46.200(a)......................................                2030-0020
46.230(a)......................................                2030-0020
------------------------------------------------------------------------
           Indian Tribes: Air Quality Planning and Management
------------------------------------------------------------------------
49.6...........................................                2060-0306
49.7...........................................                2060-0306
------------------------------------------------------------------------
 Requirements for Preparation, Adoption, and Submittal of Implementation
                                  Plans
------------------------------------------------------------------------
51.121-51.122..................................                2060-0445
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
------------------------------------------------------------------------
         Ambient Air Monitoring Reference and Equivalent Methods
------------------------------------------------------------------------
53.4...........................................                2080-0005
53.9(f), (h), (i)..............................                2080-0005
53.14..........................................                2080-0005
53.15..........................................                2080-0005
53.16(a)-(d), (f)..............................                2080-0005
------------------------------------------------------------------------
                 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
------------------------------------------------------------------------
 National Volatile Organic Compound Emission Standards for Consumer and
                           Commercial Products
------------------------------------------------------------------------
59.105.........................................                2060-0353
59.405.........................................                2060-0393
59.407.........................................                2060-0393
59.408.........................................                2060-0393
------------------------------------------------------------------------
   National Volatile Organic Compound Emission Standards for Consumer
                                Products
------------------------------------------------------------------------
59.209.........................................                2060-0348
------------------------------------------------------------------------
         Standards of Performance for New Stationary Sources \1\
------------------------------------------------------------------------
60.7(d)........................................                2060-0207
60.35c.........................................                2060-0220
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

[[Page 148]]

 
60.113a-60.115a................................                2060-0443
60.113b-60.116b................................                2060-0443
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
60.165 (a) (d).................................                2060-0110
60.175 (b) (c).................................                2060-0110
60.185 (b) (c).................................                2060-0110
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
60.264 (b) (c).................................                2060-0110
60.265 (a).....................................                2060-0110
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.......................................                2060-0443
60.482-3.......................................                2060-0443
60.482-4.......................................                2060-0443
60.482-7.......................................                2060-0443
60.482-8.......................................                2060-0443
60.482-10......................................                2060-0443
60.483-1.......................................                2060-0443
60.483-2.......................................                2060-0443
60.484-60.487..................................                2060-0443
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.......................................                2060-0443
60.562-2.......................................                2060-0443
60.563-60.565..................................                2060-0443
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..................................                2060-0443
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..................................                2060-0443
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..................................                2060-0443
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
60.757.........................................                2060-0220
60.758.........................................                2060-0220
------------------------------------------------------------------------
      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.......................................                2060-0443
61.242-2.......................................                2060-0443
61.242-3.......................................                2060-0443
61.242-4.......................................                2060-0443
61.242-7.......................................                2060-0443
61.242-8.......................................                2060-0443
61.242-10......................................                2060-0443
61.242-11......................................                2060-0443
61.243-1.......................................                2060-0443
61.243-2.......................................                2060-0443
61.244-61.247..................................                2060-0443
61.253-61.255..................................                2060-0191
61.271-61.276..................................                2060-0443
61.300.........................................                2060-0443
61.302-61.305..................................                2060-0443
61.342.........................................                2060-0183
61.344-61.349..................................                2060-0183
61.354-61.357..................................                2060-0183
------------------------------------------------------------------------
 Approval and Promulgation of State Plans for Designated Facilities and
                               Pollutants
------------------------------------------------------------------------
62.14355.......................................                2060-0430
------------------------------------------------------------------------
   National Emission Standards for Hazardous Air Pollutants for Source
                             Categories \3\
------------------------------------------------------------------------
63.5(d)........................................                2060-0330

[[Page 149]]

 
63.52-63.56....................................                2060-0266
63.72..........................................                2060-0222
63.74-63.79....................................                2060-0222
63.91-63.97....................................                2060-0264
63.103.........................................                2060-0282
63.105.........................................                2060-0443
63.117-63.118..................................                2060-0443
63.122-63.123..................................                2060-0443
63.129-63.130..................................                2060-0443
63.146-63.148..................................                2060-0443
63.151-63.152..................................                2060-0443
63.181-63.182..................................                2060-0443
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
63.450, 63.453-63.455, and 63.457..............                2060-0387
63.467-63.468..................................                2060-0273
63.480-63.506..................................                2060-0356
63.525-63.528..................................                2060-0290
63.548-63.550..................................                2060-0296
63.563-63.567..................................                2060-0289
63.602-63.603..................................                2060-0361
63.605-63.608..................................                2060-0361
63.625-63.628..................................                2060-0361
63.630.........................................                2060-0361
63.653.........................................                2060-0340
63.654.........................................                2060-0340
63.703-63.707..................................                2060-0326
63.752-63.753..................................                2060-0314
63.787(a)-(b)..................................                2060-0330
63.788(a)-(c)..................................                2060-0330
63.806-63.807..................................                2060-0324
63.829-63.830..................................                2060-0335
63.846(d)......................................                2060-0360
63.847(b), (g).................................                2060-0360
63.848(d)(5), (e), (f)(5)(ii), (g), (k), (m)...                2060-0360
63.850.........................................                2060-0360
63.1155-63.1174................................                2060-0419
63.1178--63.1194...............................                2060-0362
63.1259-63.1260................................                2060-0358
63.1290--63.1309...............................                2060-0357
63.1311........................................                2060-0351
63.1314........................................                2060-0351
63.1315........................................                2060-0351
63.1319........................................                2060-0351
63.1320........................................                2060-0351
63.1325-63.1332................................                2060-0351
63.1335........................................                2060-0351
63.1367-63.1368................................                2060-0370
63.1383........................................                2060-0359
63.1386........................................                2060-0359
63.1387........................................                2060-0359
63.1420-63.1439................................                2060-0415
63.1620-63.1679................................                2060-0391
------------------------------------------------------------------------
                      Consolidated Federal Air Rule
------------------------------------------------------------------------
65.5...........................................                2060-0443
65.6...........................................                2060-0443
65.47..........................................                2060-0443
65.48..........................................                2060-0443
65.66..........................................                2060-0443
65.63..........................................                2060-0443
65.67..........................................                2060-0443
65.83..........................................                2060-0443
65.87..........................................                2060-0443
65.102.........................................                2060-0443
65.103-65.106..................................                2060-0443
65.109.........................................                2060-0443
65.111.........................................                2060-0443
65.117-65.120..................................                2060-0443
65.159.........................................                2060-0443
65.160.........................................                2060-0443
65.162.........................................                2060-0443
65.163.........................................                2060-0443
65.164.........................................                2060-0443
65.165.........................................                2060-0443
65.166.........................................                2060-0443
------------------------------------------------------------------------
                 Chemical Accident Prevention Provisions
------------------------------------------------------------------------
68.12..........................................                2050-0144
68.15..........................................                2050-0144
68.39..........................................                2050-0144
68.42..........................................                2050-0144
68.48..........................................                2050-0144
68.50..........................................                2050-0144
68.52..........................................                2050-0144
68.56..........................................                2050-0144
68.58..........................................                2050-0144
68.60..........................................                2050-0144
68.65..........................................                2050-0144
68.67..........................................                2050-0144
68.69..........................................                2050-0144
68.71..........................................                2050-0144
68.73..........................................                2050-0144
68.75..........................................                2050-0144
68.79..........................................                2050-0144
68.81..........................................                2050-0144
68.83..........................................                2050-0144
68.85..........................................                2050-0144
68.95..........................................                2050-0144
68.120(a), (e), and (g)........................                2050-0144
68.150.........................................                2050-0144
68.155.........................................                2050-0144
68.160.........................................                2050-0144
68.165.........................................                2050-0144
68.168.........................................                2050-0144
68.170.........................................                2050-0144
68.175.........................................                2050-0144
68.180.........................................                2050-0144
68.185.........................................                2050-0144
68.190.........................................                2050-0144
68.200.........................................                2050-0144
68.215.........................................                2050-0144
68.220.........................................                2050-0144
------------------------------------------------------------------------
                     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
72.14..........................................                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
------------------------------------------------------------------------

[[Page 150]]

 
                            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
80.40..........................................                2060-0277
80.46..........................................                2060-0277
80.65..........................................                2060-0277
80.68-80.69....................................                2060-0277
80.74-80.77....................................                2060-0277
80.79..........................................                2060-0277
80.83..........................................                2060-0277
80.91-80.93....................................                2060-0277
80.101-80.106..................................                2060-0277
80.125.........................................                2060-0277
80.127-80.130..................................                2060-0277
80.141(c)-(f)..................................                2060-0275
80.157.........................................                2060-0275
80.158.........................................                2060-0275
80.160.........................................                2060-0275
80.161.........................................                2060-0275
80.162.........................................                2060-0275
80.163(d)(3)...................................                2060-0275
80.164.........................................                2060-0275
80.165.........................................                2060-0275
80.166.........................................                2060-0275
80.167(d)......................................                2060-0275
80.170.........................................                2060-0275
80.171.........................................                2060-0275
80.173.........................................                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.........................................                2060-0350
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
85.1403........................................                2060-0302
85.1404........................................                2060-0302
85.1406........................................                2060-0302
85.1407........................................                2060-0302
85.1408........................................                2060-0302
85.1409........................................                2060-0302
85.1410........................................                2060-0302
85.1411........................................                2060-0302
85.1412........................................                2060-0302
85.1413........................................                2060-0302
85.1414........................................                2060-0302
85.1415........................................                2060-0302
85.1504........................................                2060-0104
85.1505........................................                2060-0104
85.1507........................................                2060-0104
85.1508........................................                2060-0104
85.1509........................................                2060-0104
85.1511........................................                2060-0104
85.1512........................................                2060-0104
85.1514........................................                2060-0104
85.1705........................................                2060-0104
85.1706........................................                2060-0104
85.1708........................................                2060-0104
85.1712........................................                2060-0104
85.1802........................................                2060-0104
85.1803........................................                2060-0104
85.1806........................................                2060-0104

[[Page 151]]

 
85.1903........................................                2060-0104
85.1904........................................                2060-0104
85.1905........................................                2060-0104
85.1906........................................                2060-0104
85.1908........................................                2060-0104
85.1909........................................                2060-0104
85.2112-85.2123................................                2060-0065
85.2114........................................                2060-0016
85.2115........................................                2060-0016
85.2208........................................                2060-0104
------------------------------------------------------------------------
 Control of Air Pollution From New and In-Use Motor Vehicles and New and
     In-Use Motor Vehicle Engines: Certification and Test Procedures
------------------------------------------------------------------------
86.000-7.......................................                2060-0104
86.000-8.......................................                2060-0104
86.000-9.......................................                2060-0104
86.000-21......................................                2060-0104
86.000-23......................................                2060-0104
86.000-24......................................                2060-0104
86.000-25......................................                2060-0104
86.000-26......................................                2060-0104
86.000-28......................................                2060-0104
86.001-9.......................................                2060-0104
86.001-21......................................                2060-0104
86.001-23......................................                2060-0104
86.001-24......................................                2060-0104
86.001-25......................................                2060-0104
86.001-26......................................                2060-0104
86.001-28......................................                2060-0104
86.004-9.......................................                2060-0104
86.004-28......................................                2060-0104
86.004-38......................................                2060-0104
86.004-40......................................                2060-0104
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
86.107-98......................................                2060-0104
86.108-00......................................                2060-0104
86.111-94......................................                2060-0104
86.113-03......................................                2060-0104
86.113-07......................................                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
86.129-00......................................                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
86.155-98......................................                2060-0104
86.159-00......................................                2060-0104
86.160-00......................................                2060-0104
86.161-00......................................                2060-0104
86.162-00......................................                2060-0104
86.162-03......................................                2060-0104
86.163-00......................................                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
86.603-98......................................                2060-0104
86.604-84......................................                2060-0104
86.605-88......................................                2060-0064
86.605-98......................................                2060-0104
86.606-84......................................                2060-0064

[[Page 152]]

 
86.607-84......................................                2060-0104
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
86.609-98......................................                2060-0104
86.612-84......................................                2060-0064
86.612-97......................................                2060-0104
86.614-84......................................                2060-0064
86.615-84......................................                2060-0104
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
86.908-01......................................                2060-0104
86.909-93......................................                2060-0104
86.1003-90.....................................                2060-0064
86.1003-97.....................................                2060-0104
86.1003-2001...................................                2060-0104
86.1004-84.....................................                2060-0104
86.1005-90.....................................                2060-0104
86.1006-84.....................................                2060-0064
86.1007-84.....................................                2060-0104
86.1008-90.....................................                2060-0064
86.1008-96.....................................                2060-0104
86.1009-84.....................................                2060-0064
86.1009-96.....................................                2060-0104
86.1009-2001...................................                2060-0104
86.1012-84.....................................                2060-0064
86.1012-97.....................................                2060-0104
86.1014-84.....................................                2060-0064
86.1015-87.....................................                2060-0064
86.1106-87.....................................                2060-0104
86.1107-87.....................................                2060-0104
86.1108-87.....................................                2060-0104
86.1110-87.....................................                2060-0104
86.1111-87.....................................                2060-0104
86.1113-87.....................................                2060-0104
86.1114-87.....................................                2060-0104
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
86.1313-98.....................................                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
86.1327-98.....................................                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
86.1341-98.....................................                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
86.1705........................................                2060-0104
86.1707........................................                2060-0104
86.1708........................................                2060-0345
86.1709........................................                2060-0345
86.1710........................................                2060-0345
86.1712........................................                2060-0104
86.1713........................................                2060-0345
86.1714........................................                2060-0345
86.1717........................................                2060-0345
86.1721........................................                2060-0104
86.1723........................................                2060-0104
86.1724........................................                2060-0345
86.1725........................................                2060-0345
86.1726........................................                2060-0345
86.1728........................................                2060-0345
86.1734........................................                2060-0104
86.1735........................................                2060-0345
86.1770........................................                2060-0345
86.1771........................................                2060-0345
86.1776........................................                2060-0345
86.1777........................................                2060-0345
86.1778........................................                2060-0345
86.1805-01.....................................                2060-0104
86.1805-04.....................................                2060-0104
86.1806-01.....................................                2060-0104
86.1806-05.....................................                2060-0104
86.1809-01.....................................                2060-0104
86.1811-01.....................................                2060-0104
86.1811-04.....................................                2060-0104
86.1817-05.....................................                2060-0104
86.1817-08.....................................                2060-0104
86.1823-01.....................................                2060-0104
86.1826-01.....................................                2060-0104
86.1829-01.....................................                2060-0104
86.1839-01.....................................                2060-0104
86.1840-01.....................................                2060-0104
86.1842-01.....................................                2060-0104
86.1843-01.....................................                2060-0104
86.1844-01.....................................                2060-0104
86.1845-01.....................................                2060-0104
86.1845-05.....................................                2060-0104
86.1847-01.....................................                2060-0104
86.1862-04.....................................                2060-0104
86.2500........................................                2060-0104
------------------------------------------------------------------------
                           Clean-Fuel Vehicles
------------------------------------------------------------------------
88.104-94(a), (c), (e), (f), (g), (h), (i),                    2060-0104
 (j), (k)......................................
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
------------------------------------------------------------------------

[[Page 153]]

 
  Control of Emissions From New and In-Use Nonroad Compression-Ignition
                                 Engines
------------------------------------------------------------------------
89.1...........................................                2060-0124
89.2...........................................                2060-0124
89.114-89.120..................................                2060-0287
89.122-89.127..................................                2060-0287
89.129.........................................                2060-0287
89.203-89.207..................................                2060-0287
89.209-89.211..................................                2060-0287
89.304-89.331..................................                2060-0287
89.404-89.424..................................                2060-0287
89.505-89.512..................................                2060-0064
89.603-89.605..................................                2060-0095
89.607-89.610..................................                2060-0095
89.611.........................................     2060-0007, 2060-0095
89.612.........................................                2060-0095
89.801-89.803..................................                2060-0048
89.903.........................................                2060-0124
89.905-89.911..................................                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
------------------------------------------------------------------------
  Control of Emissions From New and In-Use Marine Compression-Ignition
                                 Engines
------------------------------------------------------------------------
94.7-94.12.....................................               2060-0460.
94.101-94.109..................................                2060-0460
94.203-94.222..................................                2060-0460
94.303-94.310..................................                2060-0460
94.403-94.408..................................                2060-0460
94.508-94.509..................................                2060-0460
94.804.........................................                2060-0460
94.904-94.911..................................                2060-0460
------------------------------------------------------------------------
                        Mandatory Patent Licenses
------------------------------------------------------------------------
95.2...........................................                2060-0307
------------------------------------------------------------------------
              Recognition Awards Under the Clean Water Act
------------------------------------------------------------------------
105.4(c).......................................     2040-0009, 2040-0101
105.7..........................................     2040-0009, 2040-0101
105.10.........................................     2040-0009, 2040-0101
------------------------------------------------------------------------
                        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(f)......................................                2040-0250
122.21(j), (q).................................                2040-0086
122.21(m)-(p)..................................     2040-0068, 2040-0170
122.21(r)......................................                2040-0241
122.23(i)......................................                2040-0250
122.26(c), (d).................................                2040-0086
122.26(g)......................................                2040-0211
122.28(b)......................................                2040-0250
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
122.42(e)......................................                2040-0250
122.44(g), (i).................................    2040-0004, 2040-0170,
                                                               2040-0110
122.44(j)......................................                2040-0150
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
                                                               2040-0086
123.26-123.29..................................     2040-0057, 2040-0170
123.35(b)......................................                2040-0211
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
125.86.........................................                2040-0241
125.87.........................................                2040-0241

[[Page 154]]

 
125.88.........................................                2040-0241
125.89.........................................                2040-0241
------------------------------------------------------------------------
                  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
------------------------------------------------------------------------
                    Marine Sanitation Device Standard
------------------------------------------------------------------------
Part 140.......................................                2040-0187
------------------------------------------------------------------------
               National Primary Drinking Water Regulations
------------------------------------------------------------------------
141.2..........................................                2040-0090
141.4..........................................                2040-0090
141.11-141.15..................................                2040-0090
141.21.........................................                2040-0205
141.22.........................................                2040-0090
141.23A(a)-(b).................................                2040-0204
141.23(d)-141.24...............................                2040-0204
141.25.........................................                2040-0090
141.26.........................................                2040-0204
141.27-141.30..................................                2040-0090
141.31(a)-(c) and (e)..........................                2040-0204
141.32(a)-(g)..................................                2040-0090
141.33(a)-(d)..................................                2040-0204
141.33(e)......................................                2040-0090
141.35.........................................                2040-0204
141.40.........................................                2040-0204
141.41.........................................                2040-0090
141.42-141.43..................................                2040-0204
141.50-141.52..................................                2040-0090
141.60-141.63..................................                2040-0090
141.70-141.74..................................                2040-0090
141.75.........................................                2040-0205
141.76.........................................                2040-0205
141.80-141.91..................................                2040-0210
141.100........................................                2040-0090
141.110........................................                2040-0090
141.111........................................                2040-0204
141.130-141.132................................                2040-0204
141.134-141.135................................                2040-0204
141.140-141.144................................                2040-0090
141.153-141.154................................                2040-0201
141.155(a)-(g)(1) and (h)......................                2040-0090
141.170........................................                2040-0205
141.172........................................                2040-0205
141.173........................................                2040-0205
141.174(a)-(b).................................                2040-0205
141.175(a)-(b).................................                2040-0205
141.175(c).....................................                2040-0090
141.201-141.210................................                2040-0090
141.530-141.536................................                2040-0229
141.540-141.544................................                2040-0229
141.550-141.553................................                2040-0229
141.560-141.564................................                2040-0229
141.570-141.571................................                2040-0229
------------------------------------------------------------------------
       National Primary Drinking Water Regulations Implementation
------------------------------------------------------------------------
142.2-142.3....................................                2040-0090
142.10.........................................                2040-0090
142.11.........................................                2040-0090
142.12.........................................                2040-0090
142.14(a)......................................                2040-0205
142.14(b)-(d)(1)...............................                2040-0090
142.14(d)(2)-(7)...............................                2040-0204
142.14(d)(12)(i)-(iv)..........................                2040-0204
142.14(d)(13)-(16).............................                2040-0204
142.15(a)-(b)..................................                2040-0090
142.15(c)(1)-(5)...............................                2040-0205
142.16(b)......................................                2040-0205
142.16(c)......................................                2040-0090
142.16(e)......................................                2040-0204
142.16(f)......................................                2040-0090
142.16(g)......................................                2040-0205
142.16(h)......................................                2040-0204
142.16(i)......................................                2040-0205
142.16(j)......................................                2040-0229
142.16(k)(1)...................................                2040-0204
142.16(l)(1) and (2)...........................                2040-0204
142.17-142.24..................................                2040-0090
142.51.........................................                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.........................................                2040-0090
142.306-142.308................................                2040-0090
142.311-142.312................................                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
144.79-144.89..................................                2040-0214
145.23.........................................                2040-0214
------------------------------------------------------------------------
      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

[[Page 155]]

 
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
------------------------------------------------------------------------
156.10.........................................                2070-0060
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, 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
------------------------------------------------------------------------
               Statements of Policies and Interpretations
------------------------------------------------------------------------
Part 159, subpart D............................                2070-0039
------------------------------------------------------------------------
                   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

[[Page 156]]

 
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
------------------------------------------------------------------------
Part 170.......................................                2070-0148
------------------------------------------------------------------------
                 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
------------------------------------------------------------------------
     Procedures and Requirements for Plant-Incorporated Protectants
 
------------------------------------------------------------------------
174.9..........................................                2070-0142
174.71.........................................                2070-0142
------------------------------------------------------------------------
                  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 Classification of Solid Waste Disposal Facilities and
                                Practices
------------------------------------------------------------------------
257.8..........................................                2050-0154
257.21(b)......................................                2050-0154
257.21(h)......................................                2050-0154
257.23.........................................                2050-0154
257.24.........................................                2050-0154
257.25.........................................                2050-0154
257.27.........................................                2050-0154
257.30.........................................                2050-0154
------------------------------------------------------------------------
              Criteria for Municipal Solid Waste Landfills
------------------------------------------------------------------------
Part 258.......................................                2050-0122
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
262.83-262.85..................................                2050-0143
262.87.........................................                2050-0143
262.90(c), (d), (f), (g).......................                2010-0026
------------------------------------------------------------------------
         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

[[Page 157]]

 
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
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),                2050-0009
 (j)...........................................
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

[[Page 158]]

 
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
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

[[Page 159]]

 
279.62.........................................                2050-0028
279.63.........................................                2050-0124
279.65-279.66..................................                2050-0050
279.72.........................................                2050-0050
279.73.........................................                2050-0028
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
------------------------------------------------------------------------
          Hazardous Chemical Reporting: Community Right-to-Know
------------------------------------------------------------------------
370.21.........................................                2050-0072
370.25.........................................                2050-0072
370.30.........................................                2050-0072
------------------------------------------------------------------------
        Toxic Chemical Release Reporting: Community Right-to-Know
------------------------------------------------------------------------
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
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

[[Page 160]]

 
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
------------------------------------------------------------------------
                    Feedlots Point Source Categoryxxx
------------------------------------------------------------------------
412.31-412.37..................................                2040-0250
412.41-412.47..................................                2040-0250
------------------------------------------------------------------------
             Steam Electric Generating Point Source Category
------------------------------------------------------------------------
423.12-423.13..................................                2040-0033
423.15.........................................                2040-0033
------------------------------------------------------------------------
            Pulp, Paper, and Paperboard Point Source Category
------------------------------------------------------------------------
430.02(a)-(e)..................................                2040-0243
430.02(f)......................................                2040-0242
430.03.........................................                2040-0207
430.14-430.17..................................                2040-0033
430.24(a)......................................                2040-0033
430.24(b)......................................                2040-0033
                                                               2040-0202
430.24(c)......................................                2040-0202
430.24(d)......................................                2040-0033
430.24(e)......................................                2040-0033
430.25-430.27..................................                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
------------------------------------------------------------------------
                    Coal Mining Point Source Category
------------------------------------------------------------------------
434.72-434.75..................................                2040-0239
434.82-434.83..................................                2040-0239
434.85.........................................                2040-0239
Part 434, Appendix B...........................                2040-0239
------------------------------------------------------------------------
              Oil and Gas Extraction Point Source Category
------------------------------------------------------------------------
435.13.........................................                2040-0230
435.15.........................................                2040-0230
435.43.........................................                2040-0230
435.45.........................................                2040-0230
------------------------------------------------------------------------
           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
------------------------------------------------------------------------
600.005-87.....................................                2060-0104
600.006-86.....................................                2060-0104
600.006-89.....................................                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
600.206-93.....................................                2060-0104
600.207-86.....................................                2060-0104
600.207-93.....................................                2060-0104
600.209-85.....................................                2060-0104
600.305-77.....................................                2060-0104
600.306-86.....................................                2060-0104
600.307-86.....................................                2060-0104
600.307-95.....................................                2060-0104
600.310-86.....................................                2060-0104
600.311-86.....................................                2060-0104
600.312-86.....................................                2060-0104
600.313-01.....................................                2060-0104
600.313-86.....................................                2060-0104
600.314-01.....................................                2060-0104
600.314-86.....................................                2060-0104
600.507-86.....................................                2060-0104
600.509-86.....................................                2060-0104
600.510-86.....................................                2060-0104
600.510-93.....................................                2060-0104
600.512-86.....................................                2060-0104
------------------------------------------------------------------------
                  Toxic Substances Control Act: General
------------------------------------------------------------------------
700.45.........................................     2070-0012, 2070-0038
------------------------------------------------------------------------

[[Page 161]]

 
                Reporting and Recordkeeping Requirements
------------------------------------------------------------------------
704.5..........................................                2070-0067
704.11.........................................                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
704.104........................................                2070-0067
704.175........................................                2070-0067
------------------------------------------------------------------------
                      Chemical Imports and Exports
------------------------------------------------------------------------
707.65.........................................                2070-0030
707.67.........................................                2070-0030
707.72.........................................                2070-0030
------------------------------------------------------------------------
                   TSCA Chemical Inventory Regulations
------------------------------------------------------------------------
Part 710, Subpart B............................                2070-0070
Part 710, Subpart C............................                2070-0162
------------------------------------------------------------------------
                       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
721.267........................................                2070-0012
721.275........................................                2070-0012
721.285........................................                2070-0012
721.303........................................                2070-0012
721.305........................................                2070-0012
721.320........................................                2070-0012
721.321........................................                2070-0012
721.323........................................                2070-0012
721.324........................................                2070-0012
721.329........................................                2070-0012
721.333........................................                2070-0012
721.336........................................                2070-0012
721.338........................................                2070-0012
721.405........................................                2070-0012
721.430........................................                2070-0012
721.435........................................                2070-0012
721.445........................................                2070-0012
721.450........................................                2070-0012
721.463........................................                2070-0012
721.465........................................                2070-0012
721.480........................................                2070-0012
721.484........................................                2070-0012
721.505........................................                2070-0012
721.520........................................                2070-0012
721.522........................................                2070-0012
721.524........................................                2070-0012
721.525........................................                2070-0012
721.526........................................                2070-0012
721.528........................................                2070-0012
721.530........................................                2070-0012
721.532........................................                2070-0012
721.533........................................                2070-0012
721.536........................................                2070-0012
721.537........................................                2070-0012
721.538........................................                2070-0012
721.539........................................                2070-0012
721.540........................................                2070-0012
721.545........................................                2070-0012
721.550........................................                2070-0012
721.555........................................                2070-0012
721.558........................................                2070-0012
721.562........................................                2070-0012
721.567........................................                2070-0012
721.575........................................                2070-0012
721.600........................................                2070-0012
721.625........................................                2070-0012
721.630........................................                2070-0012
721.632........................................                2070-0012
721.633........................................                2070-0012
721.637........................................                2070-0012
721.638........................................                2070-0012
721.639........................................                2070-0012
721.640........................................                2070-0012
721.641........................................                2070-0012
721.642........................................                2070-0012
721.643........................................                2070-0012
721.644........................................                2070-0012
721.646........................................                2070-0012
721.648........................................                2070-0012
721.650........................................                2070-0038
721.655........................................                2070-0012
721.715........................................                2070-0012
721.720........................................                2070-0012

[[Page 162]]

 
721.750........................................                2070-0012
721.757........................................                2070-0012
721.775........................................                2070-0012
721.785........................................                2070-0012
721.805........................................                2070-0012
721.825........................................                2070-0012
721.840........................................                2070-0012
721.843........................................                2070-0012
721.875........................................                2070-0012
721.910........................................                2070-0012
721.925........................................                2070-0012
721.950........................................                2070-0012
721.977........................................                2070-0012
721.980........................................                2070-0012
721.981........................................                2070-0012
721.982........................................                2070-0012
721.987........................................                2070-0012
721.988........................................                2070-0012
721.990........................................                2070-0012
721.1000.......................................                2070-0012
721.1025.......................................                2070-0038
721.1050.......................................                2070-0012
721.1055.......................................                2070-0012
721.1068.......................................                2070-0012
721.1075.......................................                2070-0012
721.1085.......................................                2070-0012
721.1105.......................................                2070-0012
721.1120.......................................                2070-0012
721.1150.......................................                2070-0012
721.1155.......................................                2070-0012
721.1187.......................................                2070-0012
721.1193.......................................                2070-0012
721.1210.......................................                2070-0012
721.1225.......................................                2070-0012
721.1230.......................................                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
721.1430.......................................                2070-0038
721.1435.......................................                2070-0038
721.1440.......................................                2070-0038
721.1450.......................................                2070-0012
721.1500.......................................                2070-0012
721.1550.......................................                2070-0012
721.1555.......................................                2070-0012
721.1568.......................................                2070-0012
721.1576.......................................                2070-0012
721.1577.......................................                2070-0012
721.1578.......................................                2070-0012
721.1579.......................................                2070-0012
721.1580.......................................                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
721.1655.......................................                2070-0012
721.1660.......................................                2070-0038
721.1675.......................................                2070-0012
721.1700.......................................                2070-0012
721.1705.......................................                2070-0012
721.1710.......................................                2070-0012
721.1725.......................................                2070-0012
721.1728.......................................                2070-0012
721.1729.......................................                2070-0012
721.1730.......................................                2070-0012
721.1731.......................................                2070-0012
721.1732.......................................                2070-0012
721.1734.......................................                2070-0012
721.1735.......................................                2070-0012
721.1738.......................................                2070-0012
721.1745.......................................                2070-0012
721.1750.......................................                2070-0012
721.1755.......................................                2070-0012
721.1760.......................................                2070-0012
721.1765.......................................                2070-0012
721.1767.......................................                2070-0012
721.1775.......................................                2070-0012
721.1790.......................................                2070-0038
721.1800.......................................                2070-0012
721.1805.......................................                2070-0012
721.1820.......................................                2070-0012
721.1825.......................................                2070-0012
721.1850.......................................                2070-0012
721.1852.......................................                2070-0012
721.1875.......................................                2070-0012
721.1878.......................................                2070-0012
721.1880.......................................                2070-0012
721.1900.......................................                2070-0012
721.1907.......................................                2070-0012
721.1920.......................................                2070-0012
721.1925.......................................                2070-0012
721.1930.......................................                2070-0012
721.1950.......................................                2070-0012
721.2025.......................................                2070-0012
721.2075.......................................                2070-0012
721.2077.......................................                2070-0012
721.2078.......................................                2070-0012
721.2079.......................................                2070-0012
721.2081.......................................                2070-0012
721.2082.......................................                2070-0012
721.2083.......................................                2070-0012
721.2084.......................................                2070-0038
721.2085.......................................                2070-0012
721.2086.......................................                2070-0012
721.2087.......................................                2070-0012
721.2088.......................................                2070-0012
721.2089.......................................                2070-0012
721.2091.......................................                2070-0012
721.2092.......................................                2070-0038
721.2093.......................................                2070-0012
721.2094.......................................                2070-0012
721.2095.......................................                2070-0012
721.2097.......................................                2070-0012
721.2120.......................................                2070-0012
721.2121.......................................                2070-0012
721.2122.......................................                2070-0012
721.2140.......................................                2070-0012
721.2145.......................................                2070-0012
721.2155.......................................                2070-0012
721.2175.......................................                2070-0012
721.2222.......................................                2070-0012
721.2225.......................................                2070-0012
721.2250.......................................                2070-0012
721.2260.......................................                2070-0012
721.2265.......................................                2070-0012
721.2270.......................................                2070-0012
721.2275.......................................                2070-0012
721.2280.......................................                2070-0012
721.2287.......................................                2070-0038
721.2340.......................................                2070-0012
721.2345.......................................                2070-0012
721.2350.......................................                2070-0012
721.2355.......................................                2070-0038
721.2380.......................................                2070-0012
721.2385.......................................                2070-0012
721.2410.......................................                2070-0012
721.2420.......................................                2070-0012
721.2465.......................................                2070-0012
721.2475.......................................                2070-0012
721.2480.......................................                2070-0012

[[Page 163]]

 
721.2485.......................................                2070-0012
721.2520.......................................                2070-0012
721.2527.......................................                2070-0012
721.2532.......................................                2070-0012
721.2535.......................................                2070-0012
721.2540.......................................                2070-0012
721.2560.......................................                2070-0012
721.2565.......................................                2070-0012
721.2570.......................................                2070-0012
721.2575.......................................                2070-0012
721.2577.......................................                2070-0012
721.2580.......................................                2070-0012
721.2582.......................................                2070-0012
721.2584.......................................                2070-0012
721.2585.......................................                2070-0012
721.2600.......................................                2070-0038
721.2625.......................................                2070-0012
721.2673.......................................                2070-0012
721.2675.......................................                2070-0012
721.2725.......................................                2070-0038
721.2755.......................................                2070-0012
721.2800.......................................                2070-0038
721.2805.......................................                2070-0012
721.2825.......................................                2070-0012
721.2900.......................................                2070-0012
721.2920.......................................                2070-0012
721.2925.......................................                2070-0012
721.2950.......................................                2070-0012
721.3000.......................................                2070-0012
721.3025.......................................                2070-0012
721.3031.......................................                2070-0012
721.3032.......................................                2070-0012
721.3034.......................................                2070-0012
721.3063.......................................                2070-0012
721.3080.......................................                2070-0012
721.3085.......................................                2070-0012
721.3100.......................................                2070-0012
721.3140.......................................                2070-0012
721.3152.......................................                2070-0012
721.3155.......................................                2070-0012
721.3160.......................................                2070-0038
721.3220.......................................                2070-0038
721.3248.......................................                2070-0012
721.3254.......................................                2070-0012
721.3260.......................................                2070-0012
721.3310.......................................                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
721.3465.......................................                2070-0012
721.3480.......................................                2070-0012
721.3485.......................................                2070-0012
721.3486.......................................                2070-0012
721.3488.......................................                2070-0012
721.3500.......................................                2070-0012
721.3520.......................................                2070-0012
721.3550.......................................                2070-0012
721.3560.......................................                2070-0012
721.3565.......................................                2070-0012
721.3620.......................................                2070-0012
721.3625.......................................                2070-0012
721.3627.......................................                2070-0012
721.3629.......................................                2070-0012
721.3635.......................................                2070-0012
721.3680.......................................                2070-0012
721.3700.......................................                2070-0012
721.3710.......................................                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
721.3805.......................................                2070-0012
721.3807.......................................                2070-0012
721.3810.......................................                2070-0012
721.3812.......................................                2070-0012
721.3815.......................................                2070-0012
721.3818.......................................                2070-0012
721.3820.......................................                2070-0012
721.3821.......................................                2070-0012
721.3830.......................................                2070-0012
721.3840.......................................                2070-0012
721.3845.......................................                2070-0012
721.3848.......................................                2070-0012
721.3850.......................................                2070-0012
721.3860.......................................                2070-0012
721.3880.......................................                2070-0012
721.3900.......................................                2070-0012
721.4000.......................................                2070-0012
721.4040.......................................                2070-0012
721.4060.......................................                2070-0012
721.4080.......................................                2070-0038
721.4085.......................................                2070-0012
721.4090.......................................                2070-0012
721.4095.......................................                2070-0012
721.4097.......................................                2070-0012
721.4098.......................................                2070-0012
721.4100.......................................                2070-0012
721.4105.......................................                2070-0012
721.4106.......................................                2070-0012
721.4107.......................................                2070-0012
721.4108.......................................                2070-0012
721.4110.......................................                2070-0012
721.4128.......................................                2070-0012
721.4133.......................................                2070-0012
721.4136.......................................                2070-0012
721.4140.......................................                2070-0038
721.4155.......................................                2070-0038
721.4158.......................................                2070-0038
721.4160.......................................                2070-0038
721.4180.......................................                2070-0038
721.4200.......................................                2070-0012
721.4215.......................................                2070-0012
721.4240.......................................                2070-0012
721.4250.......................................                2070-0012
721.4255.......................................                2070-0012
721.4257.......................................                2070-0012
721.4259.......................................                2070-0012
721.4260.......................................                2070-0012
721.4265.......................................                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
721.4365.......................................                2070-0012
721.4380.......................................                2070-0012
721.4385.......................................                2070-0012
721.4390.......................................                2070-0012
721.4420.......................................                2070-0012
721.4460.......................................                2070-0012
721.4461.......................................                2070-0012
721.4462.......................................                2070-0012
721.4463.......................................                2070-0012
721.4464.......................................                2070-0012

[[Page 164]]

 
721.4465.......................................                2070-0012
721.4466.......................................                2070-0012
721.4467.......................................                2070-0012
721.4468.......................................                2070-0012
721.4469.......................................                2070-0012
721.4470.......................................                2070-0012
721.4472.......................................                2070-0012
721.4473.......................................                2070-0012
721.4476.......................................                2070-0012
721.4480.......................................                2070-0012
721.4484.......................................                2070-0012
721.4486.......................................                2070-0012
721.4490.......................................                2070-0012
721.4494.......................................                2070-0012
721.4497.......................................                2070-0012
721.4500.......................................                2070-0012
721.4520.......................................                2070-0012
721.4550.......................................                2070-0012
721.4565.......................................                2070-0012
721.4568.......................................                2070-0012
721.4575.......................................                2070-0012
721.4585.......................................                2070-0012
721.4587.......................................                2070-0012
721.4589.......................................                2070-0012
721.4590.......................................                2070-0012
721.4594.......................................                2070-0012
721.4596.......................................                2070-0012
721.4600.......................................                2070-0012
721.4610.......................................                2070-0012
721.4620.......................................                2070-0012
721.4660.......................................                2070-0012
721.4663.......................................                2070-0012
721.4668.......................................                2070-0012
721.4680.......................................                2070-0012
721.4685.......................................                2070-0012
721.4700.......................................                2070-0012
721.4720.......................................                2070-0012
721.4740.......................................                2070-0038
721.4794.......................................                2070-0012
721.4820.......................................                2070-0012
721.4840.......................................                2070-0012
721.4880.......................................                2070-0012
721.4885.......................................                2070-0012
721.4925.......................................                2070-0038
721.5050.......................................                2070-0012
721.5075.......................................                2070-0012
721.5175.......................................                2070-0038
721.5185.......................................                2070-0012
721.5192.......................................                2070-0012
721.5200.......................................                2070-0012
721.5225.......................................                2070-0012
721.5250.......................................                2070-0012
721.5255.......................................                2070-0012
721.5260.......................................                2070-0012
721.5262.......................................                2070-0012
721.5275.......................................                2070-0012
721.5276.......................................                2070-0012
721.5278.......................................                2070-0012
721.5279.......................................                2070-0012
721.5280.......................................                2070-0012
721.5281.......................................                2070-0012
721.5282.......................................                2070-0012
721.5283.......................................                2070-0012
721.5284.......................................                2070-0012
721.5285.......................................                2070-0012
721.5286.......................................                2070-0012
721.5290.......................................                2070-0012
721.5310.......................................                2070-0012
721.5325.......................................                2070-0012
721.5330.......................................                2070-0012
721.5350.......................................                2070-0012
721.5356.......................................                2070-0012
721.5360.......................................                2070-0012
721.5375.......................................                2070-0012
721.5378.......................................                2070-0012
721.5380.......................................                2070-0012
721.5385.......................................                2070-0012
721.5400.......................................                2070-0012
721.5425.......................................                2070-0012
721.5450.......................................                2070-0012
721.5452.......................................                2070-0012
721.5454.......................................                2070-0012
721.5460.......................................                2070-0012
721.5465.......................................                2070-0012
721.5475.......................................                2070-0012
721.5500.......................................                2070-0012
721.5525.......................................                2070-0012
721.5540.......................................                2070-0012
721.5545.......................................                2070-0012
721.5547.......................................                2070-0012
721.5548.......................................                2070-0012
721.5549.......................................                2070-0012
721.5550.......................................                2070-0012
721.5575.......................................                2070-0012
721.5580.......................................                2070-0012
721.5585.......................................                2070-0012
721.5590.......................................                2070-0012
721.5600.......................................                2070-0038
721.5625.......................................                2070-0038
721.5645.......................................                2070-0012
721.5650.......................................                2070-0012
721.5687.......................................                2070-0012
721.5700.......................................                2070-0012
721.5708.......................................                2070-0012
721.5710.......................................                2070-0038
721.5730.......................................                2070-0012
721.5740.......................................                2070-0012
721.5760.......................................                2070-0012
721.5763.......................................                2070-0012
721.5769.......................................                2070-0012
721.5775.......................................                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
721.5912.......................................                2070-0012
721.5913.......................................                2070-0012
721.5914.......................................                2070-0012
721.5915.......................................                2070-0012
721.5920.......................................                2070-0012
721.5925.......................................                2070-0012
721.5930.......................................                2070-0012
721.5960.......................................                2070-0012
721.5965.......................................                2070-0012
721.5970.......................................                2070-0012
721.5980.......................................                2070-0012
721.5985.......................................                2070-0012
721.5995.......................................                2070-0012
721.6000.......................................                2070-0038
721.6005.......................................                2070-0012
721.6020.......................................                2070-0012
721.6045.......................................                2070-0012
721.6060.......................................                2070-0012
721.6070.......................................                2070-0012
721.6075.......................................                2070-0012
721.6078.......................................                2070-0012
721.6080.......................................                2070-0012
721.6085.......................................                2070-0012
721.6090.......................................                2070-0012
721.6097.......................................                2070-0012
721.6100.......................................                2070-0012
721.6110.......................................                2070-0012
721.6120.......................................                2070-0012
721.6140.......................................                2070-0012

[[Page 165]]

 
721.6160.......................................                2070-0012
721.6165.......................................                2070-0012
721.6170.......................................                2070-0012
721.6175.......................................                2070-0012
721.6176.......................................                2070-0012
721.6178.......................................                2070-0012
721.6180.......................................                2070-0012
721.6181.......................................                2070-0012
721.6183.......................................                2070-0012
721.6186.......................................                2070-0012
721.6193.......................................                2070-0012
721.6196.......................................                2070-0012
721.6197.......................................                2070-0012
721.6200.......................................                2070-0012
721.6205.......................................                2070-0012
721.6220.......................................                2070-0012
721.6440.......................................                2070-0012
721.6470.......................................                2070-0012
721.6475.......................................                2070-0012
721.6477.......................................                2070-0012
721.6479.......................................                2070-0012
721.6485.......................................                2070-0012
721.6490.......................................                2070-0012
721.6493.......................................                2070-0012
721.6495.......................................                2070-0012
721.6498.......................................                2070-0012
721.6505.......................................                2070-0012
721.6515.......................................                2070-0012
721.6520.......................................                2070-0012
721.6540.......................................                2070-0012
721.6560.......................................                2070-0012
721.6600.......................................                2070-0012
721.6620.......................................                2070-0012
721.6625.......................................                2070-0012
721.6660.......................................                2070-0012
721.6680.......................................                2070-0012
721.6900.......................................                2070-0012
721.6920.......................................                2070-0012
721.6980.......................................                2070-0012
721.7000.......................................                2070-0012
721.7020.......................................                2070-0012
721.7046.......................................                2070-0012
721.7160.......................................                2070-0012
721.7200.......................................                2070-0012
721.7210.......................................                2070-0012
721.7220.......................................                2070-0012
721.7260.......................................                2070-0012
721.7280.......................................                2070-0012
721.7285.......................................                2070-0012
721.7286.......................................                2070-0038
721.7375.......................................                2070-0012
721.7378.......................................                2070-0012
721.7440.......................................                2070-0012
721.7450.......................................                2070-0012
721.7480.......................................                2070-0012
721.7500.......................................                2070-0012
721.7600.......................................                2070-0012
721.7620.......................................                2070-0012
721.7655.......................................                2070-0012
721.7700.......................................                2070-0012
721.7710.......................................                2070-0012
721.7720.......................................                2070-0012
721.7770.......................................                2070-0012
721.7780.......................................                2070-0012
721.7785.......................................                2070-0012
721.8079.......................................                2070-0012
721.8082.......................................                2070-0012
721.8085.......................................                2070-0012
721.8090.......................................                2070-0012
721.8095.......................................                2070-0012
721.8100.......................................                2070-0012
721.8153.......................................                2070-0012
721.8155.......................................                2070-0012
721.8160.......................................                2070-0012
721.8175.......................................                2070-0012
721.8225.......................................                2070-0012
721.8250.......................................                2070-0012
721.8350.......................................                2070-0012
721.8450.......................................                2070-0012
721.8500.......................................                2070-0012
721.8657.......................................                2070-0012
721.8658.......................................                2070-0012
721.8660.......................................                2070-0012
721.8670.......................................                2070-0012
721.8673.......................................                2070-0012
721.8675.......................................                2070-0012
721.8700.......................................                2070-0012
721.8750.......................................                2070-0012
721.8775.......................................                2070-0012
721.8780.......................................                2070-0012
721.8825.......................................                2070-0012
721.8850.......................................                2070-0012
721.8875.......................................                2070-0012
721.8900.......................................                2070-0012
721.8920.......................................                2070-0012
721.8965.......................................                2070-0012
721.9000.......................................                2070-0038
721.9005.......................................                2070-0012
721.9010.......................................                2070-0012
721.9075.......................................                2070-0012
721.9080.......................................                2070-0012
721.9100.......................................                2070-0012
721.9220.......................................                2070-0012
721.9265.......................................                2070-0012
721.9270.......................................                2070-0012
721.9280.......................................                2070-0012
721.9285.......................................                2070-0012
721.9300.......................................                2070-0012
721.9400.......................................                2070-0012
721.9460.......................................                2070-0012
721.9470.......................................                2070-0038
721.9480.......................................                2070-0012
721.9484.......................................                2070-0012
721.9485.......................................                2070-0012
721.9486.......................................                2070-0012
721.9487.......................................                2070-0012
721.9488.......................................                2070-0012
721.9490.......................................                2070-0012
721.9492.......................................                2070-0012
721.9495.......................................                2070-0012
721.9497.......................................                2070-0012
721.9499.......................................                2070-0012
721.9500.......................................                2070-0012
721.9502.......................................                2070-0012
721.9503.......................................                2070-0012
721.9504.......................................                2070-0012
721.9505.......................................                2070-0012
721.9507.......................................                2070-0012
721.9508.......................................                2070-0012
721.9509.......................................                2070-0012
721.9513.......................................                2070-0012
721.9514.......................................                2070-0012
721.9515.......................................                2070-0012
721.9516.......................................                2070-0012
721.9517.......................................                2070-0012
721.9518.......................................                2070-0012
721.9520.......................................                2070-0012
721.9526.......................................                2070-0012
721.9527.......................................                2070-0012
721.9530.......................................                2070-0012
721.9535.......................................                2070-0012
721.9538.......................................                2070-0012
721.9540.......................................                2070-0012
721.9545.......................................                2070-0012
721.9550.......................................                2070-0012
721.9570.......................................                2070-0012
721.9573.......................................                2070-0012
721.9575.......................................                2070-0012

[[Page 166]]

 
721.9576.......................................                2070-0012
721.9577.......................................                2070-0012
721.9580.......................................                2070-0038
721.9582.......................................                2070-0038
721.9595.......................................                2070-0012
721.9597.......................................                2070-0012
721.9620.......................................                2070-0012
721.9630.......................................                2070-0012
721.9635.......................................                2070-0012
721.9650.......................................                2070-0012
721.9656.......................................                2070-0012
721.9657.......................................                2070-0012
721.9658.......................................                2070-0012
721.9659.......................................                2070-0012
721.9660.......................................                2070-0038
721.9661.......................................                2070-0012
721.9662.......................................                2070-0012
721.9663.......................................                2070-0012
721.9664.......................................                2070-0012
721.9665.......................................                2070-0012
721.9668.......................................                2070-0012
721.9670.......................................                2070-0012
721.9671.......................................                2070-0012
721.9672.......................................                2070-0012
721.9675.......................................                2070-0012
721.9680.......................................                2070-0012
721.9685.......................................                2070-0012
721.9700.......................................                2070-0012
721.9717.......................................                2070-0012
721.9719.......................................                2070-0012
721.9720.......................................                2070-0012
721.9730.......................................                2070-0012
721.9740.......................................                2070-0012
721.9750.......................................                2070-0012
721.9785.......................................                2070-0012
721.9790.......................................                2070-0012
721.9795.......................................                2070-0012
721.9798.......................................                2070-0012
721.9800.......................................                2070-0012
721.9810.......................................                2070-0012
721.9820.......................................                2070-0012
721.9825.......................................                2070-0012
721.9830.......................................                2070-0012
721.9840.......................................                2070-0012
721.9850.......................................                2070-0012
721.9892.......................................                2070-0012
721.9900.......................................                2070-0012
721.9920.......................................                2070-0012
721.9925.......................................                2070-0012
721.9928.......................................                2070-0012
721.9930.......................................                2070-0038
721.9952.......................................                2070-0012
721.9957.......................................                2070-0038
721.9965.......................................                2070-0012
721.9969.......................................                2070-0012
721.9970.......................................                2070-0012
721.9973.......................................                2070-0012
------------------------------------------------------------------------
                 Premanufacture Notification Exemptions
------------------------------------------------------------------------
723.50.........................................                2070-0012
723.175........................................                2070-0012
723.250(m)(1)..................................                2070-0012
------------------------------------------------------------------------
Lead-Based Paint Poisioning Prevention in Certain Residential Structures
------------------------------------------------------------------------
Part 745, subpart E............................                2070-0158
Part 745, subpart F............................                2070-0151
Part 745, subpart L............................                2070-0155
Part 745, subpart Q............................                2070-0155
------------------------------------------------------------------------
                        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.........................................                2070-0112
761.30.........................................                2070-0112
761.35.........................................                2070-0112
761.40.........................................                2070-0112
761.60.........................................                2070-0112
761.61.........................................                2070-0112
761.62.........................................                2070-0112
761.65.........................................                2070-0112
761.70.........................................                2070-0112
761.71.........................................                2070-0112
761.72.........................................                2070-0112
761.75(b) and (c)..............................                2070-0112
761.77.........................................                2070-0112
761.79(f) and (h)..............................                2070-0112
761.80(e), (g), (i) and (n)....................                2070-0112
761.125........................................                2070-0112
761.180........................................                2070-0112
761.185........................................                2070-0112
761.187........................................                2070-0112
761.193........................................                2070-0112
761.202(a).....................................                2070-0112
761.205........................................                2070-0112
761.207........................................                2070-0112
761.208........................................                2070-0112
761.209........................................                2070-0112
761.210........................................                2070-0112
761.211........................................                2070-0112
761.215........................................                2070-0112
761.218........................................                2070-0112
761.253........................................                2070-0112
761.274........................................                2070-0112
761.295........................................                2070-0112
761.314........................................                2070-0112
761.357........................................                2070-0112
761.359........................................                2070-0112
761.395........................................                2070-0112
761.398........................................                2070-0112
------------------------------------------------------------------------
                                Asbestos
------------------------------------------------------------------------
Part 763, subpart E............................                2070-0091
Part 763, subpart G............................                2070-0072
------------------------------------------------------------------------
                    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

[[Page 167]]

 
790.99.........................................                2070-0033
------------------------------------------------------------------------
                   Good Laboratory Practice Standards
------------------------------------------------------------------------
Part 792.......................................    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
------------------------------------------------------------------------
        Distribution of Off-Site Consequence Analysis Information
------------------------------------------------------------------------
1400.3.........................................                2050-0172
1400.4.........................................                2050-0172
1400.6.........................................                2050-0172
1400.9.........................................                2050-0172
------------------------------------------------------------------------
  Uniform National Discharge Standards for Vessels of the Armed Forces
------------------------------------------------------------------------
1700.9-1700.12.................................                2040-0187
------------------------------------------------------------------------
\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, which appears in the Finding Aids 
section of the printed volume and on GPO Access.

    Effective Date Note: 1. At 65 FR 76745, Dec. 7, 2000, the table in 
Sec. 9.1 was amended by removing the entry for 141.25-141.30 and adding 
new entries for 141.25(a)-(e), 141.26 (a)-(b), and 141.27-141.30; by 
removing the entry for 142.14(a)-(d)(7) and adding new entries for 
142.14(a)-(d)(3), 142.14(d)(4)-(5), and 142.14(d)(6)-(7); and by 
removing the entry for 142.15(c)(5)-(d) and adding new entries for 
142.15(c)(5), 142.15(c)(6)-(7), and 142.15(d), effective Dec. 8, 2003. 
For the convenience of the user, the added entries are set forth as 
follows:

Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

                                * * * * *

------------------------------------------------------------------------
                                                            OMB  control
                      40 CFR citation                            No.
------------------------------------------------------------------------
 
                  *        *        *        *        *
------------------------------------------------------------------------
        National Primary Drinking Water Regulations
------------------------------------------------------------------------
 
 
                  *        *        *        *        *
141.25(a)-(e).............................................     2040-0090
141.26(a)-(b).............................................     2040-0228
141.27-141.30.............................................     2040-0090
 
                  *        *        *        *        *
------------------------------------------------------------------------
       National Primary Drinking Water Regulations Implementation
------------------------------------------------------------------------
 
                  *        *        *        *
142.14(a)-(d)(3)..........................................     2040-0090
142.14(d)(4)-(5)..........................................     2040-0228
142.14(d)(6)-(7)..........................................     2040-0090
 
                  *        *        *        *        *
142.15(c)(5)..............................................     2040-0090
142.15(c)(6)-(7)..........................................     2040-0228
142.15(d).................................................     2040-0090
------------------------------------------------------------------------

                                * * * * *



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.

[[Page 168]]

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 
(2311), 1200 Pennsylvania Ave., NW., 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.
    (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

[[Page 169]]

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.
    (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.

[[Page 170]]

    (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 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

[[Page 171]]

$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 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

[[Page 172]]

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 
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

[[Page 173]]

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 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

[[Page 174]]

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 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

[[Page 175]]

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).
    (2) [Reserved]



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 
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--

[[Page 176]]

    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.
    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

[[Page 177]]

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.



Secs. 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.



Secs. 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, 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

[[Page 178]]

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.



Secs. 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.



Secs. 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 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--

[[Page 179]]

    (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
    (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,

[[Page 180]]

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.



Secs. 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.



Secs. 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 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.

[[Page 181]]

    (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.



Secs. 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.

                          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.

[[Page 182]]

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 
owed.
    (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).



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.

[[Page 183]]

    (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;
    (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

[[Page 184]]

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 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

[[Page 185]]

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 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,

[[Page 186]]

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 
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

[[Page 187]]

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 
Secs. 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 Secs. 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 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

[[Page 188]]

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 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.

[[Page 189]]

    (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 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;

[[Page 190]]

    (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 (2734R) , U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., 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 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

[[Page 191]]

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.
    (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.

[[Page 192]]

    (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 (2734R), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., 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 claim form and all 
accompanying material will be returned to the requesting (creditor) 
agency with notice that OPM procedures must be followed and

[[Page 193]]

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 may consider, among other 
factors, the following:
    (1) Individual debtors. (i) Age and health of the debtor;
    (ii) Present and potential income;

[[Page 194]]

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

[[Page 195]]



               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.



                     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

[[Page 196]]

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.



        Subpart 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);
    (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;

[[Page 197]]

    (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 Federal income tax refund. If EPA cancels its 
original determination, the debt will not be referred to IRS.

[[Page 198]]



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 
place of the loss or damage. Consequently, items which are exceptionally 
expensive, excessive quantities of otherwise allowable items, personal

[[Page 199]]

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 (2311), 1200 Pennsylvania Ave., NW., 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.
    (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;

[[Page 200]]

    (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;
    (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

[[Page 201]]

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 Secs. 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:
    (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.

[[Page 202]]



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 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.

[[Page 203]]

    (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.
    (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.

[[Page 204]]



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 disposition of 
criminal charges, sentencing, confinement, release, and parole and 
probation status;

[[Page 205]]

    (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 their 
families, lead to the improper influencing of witnesses, the destruction

[[Page 206]]

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

[[Page 218]]

application has been filed, the application 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 19--ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION--Table of Contents




Sec.
19.1  Applicability.
19.2  Effective date.
19.3  [Reserved]
19.4  Penalty adjustment and table.

    Authority: Pub. L. 101-410, 104 Stat. 890, 28 U.S.C. 2461 note; Pub. 
L. 104-134, 110 Stat. 1321, 31 U.S.C. 3701 note.

    Source: 61 FR 69364, Dec. 31, 1996, unless otherwise noted.



Sec. 19.1  Applicability.

    This part applies to each statutory provision under the laws 
administered by the Environmental Protection Agency concerning the 
maximum civil monetary penalty which may be assessed in either civil 
judicial or administrative proceedings.

[[Page 219]]



Sec. 19.2  Effective date.

    The increased penalty amounts set forth in this part apply to all 
violations under the applicable statutes and regulations which occur 
after January 30, 1997; except for violations subject to penalty under 
42 U.S.C. 4852d(b)(5) and 42 U.S.C. 4910(a)(2), which are subject to the 
new penalty amounts for any violations after July 28, 1997.

[62 FR 35039, June 27, 1997]



Sec. 19.3  [Reserved]



Sec. 19.4  Penalty adjustment and table.

    The adjusted statutory penalty provisions and their maximum 
applicable amounts are set out in Table 1. The last column in the table 
provides the newly effective maximum penalty amounts.

  Table 1 of Section 19.4--Civil Monetary Penalty Inflation Adjustments
------------------------------------------------------------------------
                                Civil monetary penalty     New maximum
      U.S. Code citation              description        penalty amount
------------------------------------------------------------------------
 7 U.S.C. 1361.(a)(1).........  FEDERAL INSECTICIDE,    $5,500
                                 FUNGICIDE, &
                                 RODENTICIDE ACT CIVIL
                                 PENALTY--GENERAL--
                                 COMMERCIAL
                                 APPLICATORS, ETC.
7 U.S.C. 1361.(a)(2)..........  FEDERAL INSECTICIDE,    $550/$1,000
                                 FUNGICIDE, &
                                 RODENTICIDE ACT CIVIL
                                 PENALTY--PRIVATE
                                 APPLICATORS--FIRST
                                 AND SUBSEQUENT
                                 OFFENSES OR
                                 VIOLATIONS.
15 U.S.C. 2615(a).............  TOXIC SUBSTANCES        $27,500
                                 CONTROL ACT CIVIL
                                 PENALTY.
15 U.S.C. 2647(a).............  ASBESTOS HAZARD         $5,500
                                 EMERGENCY RESPONSE
                                 ACT CIVIL PENALTY.
31 U.S.C. 3802(a)(1)..........  PROGRAM FRAUD CIVIL     $5,500
                                 REMEDIES ACT/
                                 VIOLATION INVOLVING
                                 FALSE CLAIM.
31 U.S.C. 3802(a)(2)..........  PROGRAM FRAUD CIVIL     $5,500
                                 REMEDIES ACT/
                                 VIOLATION INVOLVING
                                 FALSE STATEMENT.
33 U.S.C. 1319(d).............  CLEAN WATER ACT         $27,500
                                 VIOLATION/CIVIL
                                 JUDICIAL PENALTY.
33 U.S.C. 1319(g)(2)(A).......  CLEAN WATER ACT         $11,000/$27,500
                                 VIOLATION/
                                 ADMINISTRATIVE
                                 PENALTY PER VIOLATION
                                 AND MAXIMUM.
33 U.S.C. 1319(g)(2)(B).......  CLEAN WATER ACT         $11,000/$137,500
                                 VIOLATION/
                                 ADMINISTRATIVE
                                 PENALTY PER VIOLATION
                                 AND MAXIMUM.
33 U.S.C. 1321(b)(6)(B)(I)....  CLEAN WATER ACT         $11,000/$27,500
                                 VIOLATION/ADMIN
                                 PENALTY OF SEC
                                 311(b)(3)&(j) PER
                                 VIOLATION AND MAXIMUM.
33 U.S.C. 1321(b)(6)(B)(ii)...  CLEAN WATER ACT         $11,000/$137,500
                                 VIOLATION/ADMIN
                                 PENALTY OF SEC
                                 311(b)(3)&(j) PER
                                 VIOLATION AND MAXIMUM.
33 U.S.C. 1321(b)(7)(A).......  CLEAN WATER ACT         $27,500 or
                                 VIOLATION/CIVIL         $1,100 per
                                 JUDICIAL PENALTY OF     barrel or unit
                                 SEC 311(b)(3)--PER
                                 VIOLATION PER DAY OR
                                 PER BARREL OR UNIT.
33 U.S.C. 1321(b)(7)(B).......  CLEAN WATER ACT         $27,500
                                 VIOLATION/CIVIL
                                 JUDICIAL PENALTY OF
                                 SEC 311(c)&(e)(1)(B).
33 U.S.C. 1321(b)(7)(C).......  CLEAN WATER ACT         $27,500
                                 VIOLATION/CIVIL
                                 JUDICIAL PENALTY OF
                                 SEC 311(j).
33 U.S.C. 1321(b)(7)(D).......  CLEAN WATER ACT         $110,000 or
                                 VIOLATION/MINIMUM       $3,300 per
                                 CIVIL JUDICIAL          barrel or unit
                                 PENALTY OF SEC
                                 311(b)(3)--PER
                                 VIOLATION OR PER
                                 BARREL/UNIT.
33 U.S.C. 1414b(d)............  MARINE PROTECTION,      $660
                                 RESEARCH &
                                 SANCTUARIES ACT VIOL
                                 SEC 104b(d).
33 U.S.C. 1415(a).............  MARINE PROTECTION       $55,000/$137,500
                                 RESEARCH AND
                                 SANCTUARIES ACT
                                 VIOLATIONS--FIRST &
                                 SUBSEQUENT VIOLATIONS.
42 U.S.C. 300g-3(b)...........  SAFE DRINKING WATER     $27,500
                                 ACT/CIVIL JUDICIAL
                                 PENALTY OF SEC
                                 1414(b).
42 U.S.C. 300g-3(c)...........  SAFE DRINKING WATER     $27,500
                                 ACT/CIVIL JUDICIAL
                                 PENALTY OF SEC
                                 1414(c).
42 U.S.C. 300g-3(g)(3)(A).....  SAFE DRINKING WATER     $27,500
                                 ACT/CIVIL JUDICIAL
                                 PENALTY OF SEC
                                 1414(g)(3)(a).
42 U.S.C. 300g-3(g)(3)(B).....  SAFE DRINKING WATER     $5,000/$25,000
                                 ACT/MAXIMUM
                                 ADMINISTRATIVE
                                 PENALTIES PER SEC
                                 1414(g)(3)(B).
42 U.S.C. 300g-3(g)(3)(C).....  SAFE DRINKING WATER     $25,000
                                 ACT/THRESHOLD
                                 REQUIRING CIVIL
                                 JUDICIAL ACTION PER
                                 SEC 1414(g)(3)(C).
42 U.S.C. 300h-2(b)(1)........  SDWA/CIVIL JUDICIAL     $27,500
                                 PENALTY/VIOLATIONS OF
                                 REQS--UNDERGROUND
                                 INJECTION CONTROL
                                 (UIC).
42 U.S.C. 300h-2(c)(1)........  SDWA/CIVIL ADMIN        $11,000/
                                 PENALTY/VIOLATIONS OF   $137,500.
                                 UIC REQS--PER
                                 VIOLATION AND MAXIMUM.
42 U.S.C. 300h-2(c)(2)........  SDWA/CIVIL ADMIN        $5,500/$137,500
                                 PENALTY/VIOLATIONS OF
                                 UIC REQS--PER
                                 VIOLATION AND MAXIMUM.
42 U.S.C. 300h-3(c)(1)........  SDWA/VIOLATION/         $5,500
                                 OPERATION OF NEW
                                 UNDERGROUND INJECTION
                                 WELL.
42 U.S.C. 300h-3(c)(2)........  SDWA/WILLFUL VIOLATION/ $11,000
                                 OPERATION OF NEW
                                 UNDERGROUND INJECTION
                                 WELL.
42 U.S.C. 300i(b).............  SDWA/FAILURE TO COMPLY  $15,000.
                                 WITH IMMINENT AND
                                 SUBSTANTIAL
                                 ENDANGERMENT ORDER.

[[Page 220]]

 
42 U.S.C. 300i-1(c)...........  SDWA/ATTEMPTING TO OR   $22,000/$55,000
                                 TAMPERING WITH PUBLIC
                                 WATER SYSTEM/CIVIL
                                 JUDICIAL PENALTY.
42 U.S.C. 300j(e)(2)..........  SDWA/FAILURE TO COMPLY  $2,750
                                 W/ORDER ISSUED UNDER
                                 SEC. 1441(c)(1).
42 U.S.C. 300j-4(c)...........  SDWA/REFUSAL TO COMPLY  $27,500
                                 WITH REQS. OF SEC.
                                 1445(a) OR (b).
42 U.S.C. 300j-6(b)(2)........  SDWA/FAILURE TO COMPLY  $25,000
                                 WITH ADMIN. ORDER
                                 ISSUED TO FEDERAL
                                 FACILITY.
42 U.S.C. 300j-23(d)..........  SDWA/VIOLATIONS/        $5,500/$55,000
                                 SECTION 1463(b)--
                                 FIRST OFFENSE/REPEAT
                                 OFFENSE.
42 U.S.C. 4852d(b)(5).........  RESIDENTIAL LEAD-BASED  $11,000
                                 PAINT HAZARD
                                 REDUCTION ACT OF
                                 1992, SEC 1018--CIVIL
                                 PENALTY.
42 U.S.C. 4910(a)(2)..........  NOISE CONTROL ACT OF    $11,000
                                 1972--CIVIL PENALTY.
42 U.S.C. 6928(a)(3)..........  RESOURCE CONSERVATION   $27,500
                                 & RECOVERY ACT/
                                 VIOLATION SUBTITLE C
                                 ASSESSED PER ORDER.
42 U.S.C. 6928(c).............  RES. CONS. & REC. ACT/  $27,500
                                 CONTINUED
                                 NONCOMPLIANCE OF
                                 COMPLIANCE ORDER.
42 U.S.C. 6928(g).............  RESOURCE CONSERVATION   $27,500
                                 & RECOVERY ACT/
                                 VIOLATION SUBTITLE C.
42 U.S.C. 6928(h)(2)..........  RES. CONS. & REC. ACT/  $27,500
                                 NONCOMPLIANCE OF
                                 CORRECTIVE ACTION
                                 ORDER.
42 U.S.C. 6934(e).............  RES. CONS. & REC. ACT/  $5,500
                                 NONCOMPLIANCE WITH
                                 SECTION 3013 ORDER.
42 U.S.C. 6973(b).............  RES. CONS. & REC. ACT/  $5,500
                                 VIOLATIONS OF
                                 ADMINISTRATIVE ORDER.
42 U.S.C. 6991e(a)(3).........  RES. CONS. & REC. ACT/  $27,500
                                 NONCOMPLIANCE WITH
                                 UST ADMINISTRATIVE
                                 ORDER.
42 U.S.C. 6991e(d)(1).........  RES. CONS. & REC. ACT/  $11,000
                                 FAILURE TO NOTIFY OR
                                 FOR SUBMITTING FALSE
                                 INFORMATION.
42 U.S.C. 6991e(d)(2).........  RCRA/VIOLATIONS OF      $11,000
                                 SPECIFIED UST
                                 REGULATORY
                                 REQUIREMENTS.
42 U.S.C. 6992d(a)(2).........  RCRA/NONCOMPLIANCE W/   $27,500
                                 MEDICAL WASTE
                                 TRACKING ACT ASSESSED
                                 THRU ADMIN ORDER.
42 U.S.C. 6992d(a)(4).........  RCRA/NONCOMPLIANCE W/   $27,500
                                 MEDICAL WASTE
                                 TRACKING ACT
                                 ADMINISTRATIVE ORDER.
42 U.S.C. 6992d(d)............  RCRA/VIOLATIONS OF      $27,500
                                 MEDICAL WASTE
                                 TRACKING ACT--
                                 JUDICIAL PENALTIES.
42 U.S.C. 7413(b).............  CLEAN AIR ACT/          $27,500
                                 VIOLATION/OWNERS &
                                 OPERATORS OF
                                 STATIONARY AIR
                                 POLLUTION SOURCES--
                                 JUDICIAL PENALTIES.
42 U.S.C. 7413(d)(1)..........  CLEAN AIR ACT/          $27,500/$220,000
                                 VIOLATION/OWNERS &
                                 OPERATORS OF
                                 STATIONARY AIR
                                 POLLUTION SOURCES-
                                 ADMINISTRATIVE
                                 PENALTIES PER
                                 VIOLATION & MAX.
42 U.S.C. 7413(d)(3)..........  CLEAN AIR ACT/MINOR     $5,500.
                                 VIOLATIONS/STATIONARY
                                 AIR POLLUTION SOURCES-
                                 -FIELD CITATIONS.
42 U.S.C. 7524(a).............  TAMPERING OR            $2,750
                                 MANUFACTURE/SALE OF
                                 DEFEAT DEVICES IN
                                 VIOLATION OF
                                 7522(a)(3)(A) OR
                                 (a)(3)(B)--BY PERSONS.
42 U.S.C. 7524(a).............  VIOLATION OF            $27,500
                                 7522(a)(3)(A) OR
                                 (a)(3)(B)--BY
                                 MANUFACTURERS OR
                                 DEALERS; ALL
                                 VIOLATIONS OF
                                 7522(a)(1),(2),
                                 (4),&(5) BY ANYONE.
42 U.S.C. 7524(c).............  ADMINISTRATIVE          $220,000
                                 PENALTIES AS SET IN
                                 7524(a) & 7545(d)
                                 WITH A MAXIMUM
                                 ADMINISTRATIVE
                                 PENALTY.
42 U.S.C. 7545(d).............  VIOLATIONS OF FUELS     $27,500
                                 REGULATIONS.
42 U.S.C. 9604(e)(5)(B).......  SUPERFUND AMEND. &      $27,500
                                 REAUTHORIZATION ACT/
                                 NONCOMPLIANCE W/
                                 REQUEST FOR INFO OR
                                 ACCESS.
42 U.S.C. 9606(b)(1)..........  SUPERFUND/WORK NOT      $27,500
                                 PERFORMED W/IMMINENT,
                                 SUBSTANTIAL
                                 ENDANGERMENT.
42 U.S.C. 9609 (a) & (b)......  SUPERFUND/ADMIN.        $27,500.
                                 PENALTY VIOLATIONS
                                 UNDER 42 U.S.C. SECT.
                                 9603, 9608, OR 9622.
42 U.S.C. 9609(b).............  SUPERFUND/ADMIN.        $82,500
                                 PENALTY VIOLATIONS--
                                 SUBSEQUENT.
42 U.S.C. 9609(c).............  SUPERFUND/CIVIL         $27,500
                                 JUDICIAL PENALTY/
                                 VIOLATIONS OF SECT.
                                 9603, 9608, 9622.
42 U.S.C. 9609(c).............  SUPERFUND/CIVIL         $82,500
                                 JUDICIAL PENALTY/
                                 SUBSEQUENT VIOLATIONS
                                 OF SECT. 9603, 9608,
                                 9622.
42 U.S.C. 11045 (a) & (b) (1),  EMERGENCY PLANNING AND  $27,500
 (2) & (3).                      COMMUNITY RIGHT-TO-
                                 KNOW ACT CLASS I & II
                                 ADMINISTRATIVE AND
                                 CIVIL PENALTIES.
42 U.S.C. 11045(b) (2) & (3)..  EPCRA CLASS I & II      $82,500
                                 ADMINISTRATIVE AND
                                 CIVIL PENALTIES--
                                 SUBSEQUENT VIOLATIONS.
42 U.S.C. 11045(c)(1).........  EPCRA CIVIL AND         $27,500
                                 ADMINISTRATIVE
                                 REPORTING PENALTIES
                                 FOR VIOLATIONS OF
                                 SECTIONS 11022 OR
                                 11023.
42 U.S.C. 11045(c)(2).........  EPCRA CIVIL AND         $11,000
                                 ADMINISTRATIVE
                                 REPORTING PENALTIES
                                 FOR VIOLATIONS OF
                                 SECTIONS 11021 OR
                                 11043(b).
42 U.S.C. 11045(d)(1).........  EPCRA--FRIVOLOUS TRADE  $27,500
                                 SECRET CLAIMS--CIVIL
                                 AND ADMINISTRATIVE
                                 PENALTIES.
------------------------------------------------------------------------


[[Page 221]]


[61 FR 69364, Dec. 31, 1996; 62 FR 13515, Mar. 20, 1997; 62 FR 35039, 
June 27, 1997]



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, 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.

[[Page 222]]

    (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.
    (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

[[Page 223]]

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;
    (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,

[[Page 224]]

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 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

[[Page 225]]

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 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 to Part 20--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.

[[Page 226]]

    (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 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

[[Page 227]]

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 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

[[Page 228]]

(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.
    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.

[[Page 229]]



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 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-

[[Page 230]]

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.
    (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, 77 West Jackson Boulevard,        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

[[Page 231]]

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 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

[[Page 232]]

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.
    (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.

[42 FR 8083, Feb. 8, 1977, as amended at 62 FR 1833, Jan. 14, 1997]



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

[[Page 233]]

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, 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.

[[Page 234]]



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) 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.

[[Page 235]]



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.
    (b) [Reserved]



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.
    (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.


[[Page 236]]


    (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 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.

[[Page 237]]

    (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 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/TERMINATION OR SUSPENSION 
OF PERMITS--Table of Contents




                           Subpart A--General

Sec.
22.1  Scope of this part.
22.2  Use of number and gender.
22.3  Definitions.
22.4  Powers and duties of the Environmental Appeals Board, Regional 
          Judicial Officer and Presiding Officer; disqualification, 
          withdrawal, and reassignment.
22.5  Filing, service, and form of all filed documents; business 
          confidentiality claims.
22.6  Filing and service of rulings, orders and decisions.
22.7  Computation and extension of time.
22.8  Ex parte discussion of proceeding.
22.9  Examination of documents filed.

                   Subpart B--Parties and Appearances

22.10  Appearances.
22.11  Intervention and non-party briefs.
22.12  Consolidation and severance.

[[Page 238]]

                    Subpart C--Prehearing Procedures

22.13  Commencement of a proceeding.
22.14  Complaint.
22.15  Answer to the complaint.
22.16  Motions.
22.17  Default.
22.18  Quick resolution; settlement; alternative dispute resolution.
22.19  Prehearing information exchange; prehearing conference; other 
          discovery.
22.20  Accelerated decision; decision to dismiss.

                      Subpart D--Hearing Procedures

22.21  Assignment of Presiding Officer; scheduling the hearing.
22.22  Evidence.
22.23  Objections and offers of proof.
22.24  Burden of presentation; burden of persuasion; preponderance of 
          the evidence standard.
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.

              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

22.31  Final order.
22.32  Motion to reconsider a final order.

                      Subpart H--Supplemental Rules

22.33  [Reserved]
22.34  Supplemental rules governing the administrative assessment of 
          civil penalties under the Clean Air Act.
22.35  Supplemental rules governing the administrative assessment of 
          civil penalties under the Federal Insecticide, Fungicide, and 
          Rodenticide Act.
22.36  [Reserved]
22.37  Supplemental rules governing administrative proceedings under the 
          Solid Waste Disposal Act.
22.38  Supplemental rules of practice governing the administrative 
          assessment of civil penalties under the Clean Water Act.
22.39  Supplemental rules governing the administrative assessment of 
          civil penalties under section 109 of the Comprehensive 
          Environmental Response, Compensation, and Liability Act of 
          1980, as amended.
22.40  [Reserved]
22.41  Supplemental rules governing the administrative assessment of 
          civil penalties under Title II of the Toxic Substance Control 
          Act, enacted as section 2 of the Asbestos Hazard Emergency 
          Response Act (AHERA).
22.42  Supplemental rules governing the administrative assessment of 
          civil penalties for violations of compliance orders issued to 
          owners or operators of public water systems under part B of 
          the Safe Drinking Water Act.
22.43  Supplemental rules governing the administrative assessment of 
          civil penalties against a federal agency under the Safe 
          Drinking Water Act.
22.44  Supplemental rules of practice governing the termination of 
          permits under section 402(a) of the Clean Water Act or under 
          section 3008(a)(3) of the Resource Conservation and Recovery 
          Act.
22.45  Supplemental rules governing public notice and comment in 
          proceedings under sections 309(g) and 311(b)(6)(B)(ii) of the 
          Clean Water Act and section 1423(c) of the Safe Drinking Water 
          Act.
22.46-22.49  [Reserved]

Subpart I--Administrative Proceedings Not Governed by Section 554 of the 
                      Administrative Procedure Act

22.50  Scope of this subpart.
22.51  Presiding Officer.
22.52  Information exchange and discovery.

    Authority: 7 U.S.C. 136(l); 15 U.S.C. 2615; 33 U.S.C. 1319, 1342, 
1361, 1415 and 1418; 42 U.S.C. 300g-3(g), 6912, 6925, 6928, 6991e and 
6992d; 42 U.S.C. 7413(d), 7524(c), 7545(d), 7547, 7601 and 7607(a), 
9609, and 11045.

    Source: 64 FR 40176, July 23, 1999, unless otherwise noted.



                           Subpart A--General



Sec. 22.1  Scope of this part.

    (a) These Consolidated Rules of Practice govern all administrative 
adjudicatory proceedings for:
    (1) The assessment of any administrative civil penalty under section 
14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act as 
amended (7 U.S.C. 136l(a));
    (2) The assessment of any administrative civil penalty under 
sections 113(d), 205(c), 211(d) and 213(d) of the Clean Air Act, as 
amended (42 U.S.C. 7413(d), 7524(c), 7545(d) and 7547(d));

[[Page 239]]

    (3) The assessment of any administrative civil penalty or for the 
revocation or suspension of any permit under section 105(a) and (f) of 
the Marine Protection, Research, and Sanctuaries Act as amended (33 
U.S.C. 1415(a) and (f));
    (4) The issuance of a compliance order or the issuance of a 
corrective action order, the termination of a permit pursuant to section 
3008(a)(3), the suspension or revocation of authority to operate 
pursuant to section 3005(e), 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. 6925(d), 6925(e), 6928, 6991e, and 6992d)), except as 
provided in part 24 of this chapter;
    (5) The assessment of any administrative civil penalty under 
sections 16(a) and 207 of the Toxic Substances Control Act (15 U.S.C. 
2615(a) and 2647);
    (6) The assessment of any Class II penalty under sections 309(g) and 
311(b)(6), or termination of any permit issued pursuant to section 
402(a) of the Clean Water Act, as amended (33 U.S.C. 1319(g), 
1321(b)(6), and 1342(a));
    (7) The assessment of any administrative civil 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 civil penalty under section 
325 of the Emergency Planning and Community Right-To-Know Act of 1986 
(``EPCRA'') (42 U.S.C. 11045);
    (9) The assessment of any administrative civil penalty under 
sections 1414(g)(3)(B), 1423(c), and 1447(b) of the Safe Drinking Water 
Act as amended (42 U.S.C. 300g-3(g)(3)(B), 300h-2(c), and 300j-6(b)), or 
the issuance of any order requiring both compliance and the assessment 
of an administrative civil penalty under section 1423(c);
    (10) The assessment of any administrative civil penalty or the 
issuance of any order requiring compliance under Section 5 of the 
Mercury-Containing and Rechargeable Battery Management Act (42 U.S.C. 
14304).
    (b) The supplemental rules set forth in subparts H and I of this 
part establish special procedures for proceedings identified in 
paragraph (a) of this section where the Act allows or requires 
procedures different from the procedures in subparts A through G of this 
part. Where inconsistencies exist between subparts A through G of this 
part and subpart H or I of this part, subparts H or I of this part shall 
apply.
    (c) Questions arising at any stage of the proceeding which are not 
addressed in these Consolidated Rules of Practice shall be resolved at 
the discretion of the Administrator, Environmental Appeals Board, 
Regional Administrator, or Presiding Officer, as provided for in these 
Consolidated Rules of Practice.

[64 FR 40176, July 23, 1999, as amended at 65 FR 30904, May 15, 2000]



Sec. 22.2  Use of number and gender.

    As used in these Consolidated 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. 22.3  Definitions.

    (a) The following definitions apply to these Consolidated Rules of 
Practice:
    Act means the particular statute authorizing the proceeding at 
issue.
    Administrative Law Judge means an Administrative Law Judge appointed 
under 5 U.S.C. 3105.
    Administrator means the Administrator of the U.S. Environmental 
Protection Agency or his delegate.
    Agency means the United States Environmental Protection Agency.
    Business confidentiality claim means a confidentiality claim as 
defined in 40 CFR 2.201(h).
    Clerk of the Board means the Clerk of the Environmental Appeals 
Board, Mail Code 1103B, U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460.
    Commenter means any person (other than a party) or representative of 
such person who timely:
    (1) Submits in writing to the Regional Hearing Clerk that he is 
providing or intends to provide comments on the proposed assessment of a 
penalty pursuant to sections 309(g)(4) and 311(b)(6)(C) of the Clean 
Water Act or section 1423(c) of the Safe Drinking Water Act, whichever 
applies, and intends to participate in the proceeding; and

[[Page 240]]

    (2) Provides the Regional Hearing Clerk with a return address.
    Complainant means any person authorized to issue a complaint in 
accordance with Secs. 22.13 and 22.14 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 adjudication.
    Consolidated Rules of Practice means the regulations in this part.
    Environmental Appeals Board means the Board within the Agency 
described in 40 CFR 1.25.
    Final order means:
    (1) An order issued by the Environmental Appeals Board or the 
Administrator after an appeal of an initial decision, accelerated 
decision, decision to dismiss, or default order, disposing of the matter 
in controversy between the parties;
    (2) An initial decision which becomes a final order under 
Sec. 22.27(c); or
    (3) A final order issued in accordance with Sec. 22.18.
    Hearing means an evidentiary hearing on the record, open to the 
public (to the extent consistent with Sec. 22.22(a)(2)), conducted as 
part of a proceeding under these Consolidated Rules of Practice.
    Hearing Clerk means the Hearing Clerk, Mail Code 1900, U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
    Initial decision means the decision issued by the Presiding Officer 
pursuant to Secs. 22.17(c), 22.20(b) or 22.27 resolving all outstanding 
issues in the proceeding.
    Party means any person that participates in a proceeding as 
complainant, respondent, or intervenor.
    Permit action means the revocation, suspension or termination of all 
or part of a permit issued under section 102 of the Marine Protection, 
Research, and Sanctuaries Act (33 U.S.C. 1412) or termination under 
section 402(a) of the Clean Water Act (33 U.S.C. 1342(a)) or section 
3005(d) of the Solid Waste Disposal Act (42 U.S.C. 6925(d)).
    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 an individual who presides in an 
administrative adjudication until an initial decision becomes final or 
is appealed. The Presiding Officer shall be an Administrative Law Judge, 
except where Secs. 22.4(b), 22.16(c) or 22.51 allow a Regional Judicial 
Officer to serve as Presiding Officer.
    Proceeding means the entirety of a single administrative 
adjudication, from the filing of the complaint through the issuance of a 
final order, including any action on a motion to reconsider under 
Sec. 22.32.
    Regional Administrator means, for a case initiated in an EPA 
Regional Office, the Regional Administrator for that Region or any 
officer or employee thereof to whom his authority is duly delegated.
    Regional Hearing Clerk means an individual duly authorized to serve 
as hearing clerk for a given region, who shall be neutral in every 
proceeding. Correspondence with the Regional Hearing Clerk shall be 
addressed to the Regional Hearing Clerk at the address specified in the 
complaint. For a case initiated at EPA Headquarters, the term Regional 
Hearing Clerk means the Hearing Clerk.
    Regional Judicial Officer means a person designated by the Regional 
Administrator under Sec. 22.4(b).
    Respondent means any person against whom the complaint states a 
claim for relief.
    (b) Terms defined in the Act and not defined in these Consolidated 
Rules of Practice are used consistent with the meanings given in the 
Act.

[64 FR 40176, July 23, 1999, as amended at 65 FR 30904, May 15, 2000]

[[Page 241]]



Sec. 22.4  Powers and duties of the Environmental Appeals Board, Regional 
Judicial Officer and Presiding Officer; disqualification, withdrawal, and 
          reassignment.

    (a) Environmental Appeals Board. (1) The Environmental Appeals Board 
rules on appeals from the initial decisions, rulings and orders of a 
Presiding Officer in proceedings under these Consolidated Rules of 
Practice; acts as Presiding Officer until the respondent files an answer 
in proceedings under these Consolidated Rules of Practice commenced at 
EPA Headquarters; and approves settlement of proceedings under these 
Consolidated Rules of Practice commenced at EPA Headquarters. The 
Environmental Appeals Board may refer any case or motion to the 
Administrator when the Environmental Appeals Board, in its discretion, 
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 references to the Environmental Appeals Board in 
these Consolidated Rules of Practice 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 Sec. 22.8. Motions directed to the 
Administrator shall not be considered except for motions for 
disqualification pursuant to paragraph (d) of this section, or motions 
filed in matters that the Environmental Appeals Board has referred to 
the Administrator.
    (2) In exercising its duties and responsibilities under these 
Consolidated Rules of Practice, the Environmental Appeals Board may do 
all acts and take all measures as are necessary for the efficient, fair 
and impartial adjudication of issues arising in a proceeding, including 
imposing procedural sanctions against a party who without adequate 
justification fails or refuses to comply with these Consolidated Rules 
of Practice or with an order of the Environmental Appeals Board. Such 
sanctions may include drawing adverse inferences against a party, 
striking a party's pleadings or other submissions from the record, and 
denying any or all relief sought by the party in the proceeding.
    (b) Regional Judicial Officer. Each Regional Administrator shall 
delegate to one or more Regional Judicial Officers authority to act as 
Presiding Officer in proceedings under subpart I of this part, and to 
act as Presiding Officer until the respondent files an answer in 
proceedings under these Consolidated Rules of Practice to which subpart 
I of this part does not apply. The Regional Administrator may also 
delegate to one or more Regional Judicial Officers the authority to 
approve settlement of proceedings pursuant to Sec. 22.18(b)(3). These 
delegations will not prevent a Regional Judicial Officer from referring 
any motion or case to the Regional Administrator. A Regional Judicial 
Officer shall be an attorney who is a permanent or temporary employee of 
the Agency or another Federal agency and who may perform other duties 
within the Agency. A Regional Judicial Officer shall not have performed 
prosecutorial or investigative functions in connection with any case in 
which he serves as a Regional Judicial Officer. A Regional Judicial 
Officer shall not knowingly preside over a case involving any party 
concerning whom the Regional Judicial Officer performed any functions of 
prosecution or investigation within the 2 years preceding the 
commencement of the case. A Regional Judicial Officer shall not 
prosecute enforcement cases and shall not be supervised by any person 
who supervises the prosecution of enforcement cases, but may be 
supervised by the Regional Counsel.
    (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 may:
    (1) Conduct administrative hearings under these Consolidated Rules 
of Practice;
    (2) Rule upon motions, requests, and offers of proof, and issue all 
necessary orders;
    (3) Administer oaths and affirmations and take affidavits;
    (4) Examine witnesses and receive documentary or other evidence;

[[Page 242]]

    (5) Order a party, or an officer or agent thereof, to produce 
testimony, documents, or other non-privileged 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 
Consolidated Rules of Practice.
    (d) Disqualification, withdrawal and reassignment. (1) The 
Administrator, the Regional Administrator, the members of the 
Environmental Appeals Board, the Regional Judicial Officer, or the 
Administrative Law Judge may not perform functions provided for in these 
Consolidated Rules of Practice regarding any matter in which they have a 
financial interest or 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 to the Administrator, Regional 
Administrator, a member of the Environmental Appeals Board, the Regional 
Judicial Officer or the Administrative Law Judge request that he or she 
disqualify himself or herself from the proceeding. If such a motion to 
disqualify the Regional Administrator, Regional Judicial Officer or 
Administrative Law Judge is denied, a party may appeal that ruling to 
the Environmental Appeals Board. If a motion to disqualify a member of 
the Environmental Appeals Board is denied, a party may appeal that 
ruling to the Administrator. There shall be no interlocutory appeal of 
the ruling on a motion for disqualification. The Administrator, the 
Regional Administrator, a member of the Environmental Appeals Board, the 
Regional Judicial Officer, or the Administrative Law Judge may at any 
time withdraw from any proceeding in which he deems himself disqualified 
or unable to act for any reason.
    (2) If the Administrator, the Regional Administrator, the Regional 
Judicial Officer, or the Administrative Law Judge 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 as a replacement. The Administrator shall assign a replacement 
for a Regional Administrator who withdraws or is disqualified. Should 
the Administrator withdraw or be disqualified, the Regional 
Administrator from the Region where the case originated shall replace 
the Administrator. 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 Regional Judicial Officer if the original Regional Judicial 
Officer withdraws or is disqualified. The Chief Administrative Law Judge 
shall assign a new Administrative Law Judge if the original 
Administrative Law Judge withdraws or is disqualified.
    (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.



Sec. 22.5  Filing, service, and form of all filed documents; business 
confidentiality claims.

    (a) Filing of documents. (1) The original and one copy of each 
document intended to be part of the record shall be filed with the 
Regional Hearing Clerk when the proceeding is before the Presiding 
Officer, or filed with the Clerk of the Board when the proceeding is 
before the Environmental Appeals Board. A document is filed when it is 
received by the appropriate Clerk. The Presiding Officer or the 
Environmental Appeals Board may by order authorize facsimile or 
electronic filing, subject to any appropriate conditions and 
limitations.

[[Page 243]]

    (2) When the Presiding Officer corresponds directly with the 
parties, the original of the correspondence shall be filed with the 
Regional Hearing Clerk. Parties who correspond directly with the 
Presiding Officer shall file a copy of the correspondence with the 
Regional Hearing Clerk.
    (3) A certificate of service shall accompany each document filed or 
served in the proceeding.
    (b) Service of documents. A copy of each document filed in the 
proceeding shall be served on the Presiding Officer or the Environmental 
Appeals Board, and on each party.
    (1) Service of complaint. (i) Complainant shall serve on respondent, 
or a representative authorized to receive service on respondent's 
behalf, a copy of the signed original of the complaint, together with a 
copy of these Consolidated Rules of Practice. Service shall be made 
personally, by certified mail with return receipt requested, or by any 
reliable commercial delivery service that provides written verification 
of delivery.
    (ii)(A) Where respondent is a domestic or foreign corporation, a 
partnership, or an unincorporated association which is subject to suit 
under a common name, complainant shall serve an officer, partner, a 
managing or general agent, or any other person authorized by appointment 
or by Federal or State law to receive service of process.
    (B) Where respondent is an agency of the United States complainant 
shall serve that agency as provided by that agency's regulations, or in 
the absence of controlling regulation, as otherwise permitted by law. 
Complainant should also provide a copy of the complaint to the senior 
executive official having responsibility for the overall operations of 
the geographical unit where the alleged violations arose. If the agency 
is a corporation, the complaint shall be served as prescribed in 
paragraph (b)(1)(ii)(A) of this section.
    (C) Where respondent is a State or local unit of government, agency, 
department, corporation or other instrumentality, complainant shall 
serve the chief executive officer thereof, or as otherwise permitted by 
law. Where respondent is a State or local officer, complainant shall 
serve such officer.
    (iii) Proof of service of the complaint shall be made by affidavit 
of the person making personal service, or by properly executed receipt. 
Such proof of service shall be filed with the Regional Hearing Clerk 
immediately upon completion of service.
    (2) Service of filed documents other than the complaint, rulings, 
orders, and decisions. All filed documents other than the complaint, 
rulings, orders, and decisions shall be served personally, by first 
class mail (including certified mail, return receipt requested, 
Overnight Express and Priority Mail), or by any reliable commercial 
delivery service. The Presiding Officer or the Environmental Appeals 
Board may by order authorize facsimile or electronic service, subject to 
any appropriate conditions and limitations.
    (c) Form of documents. (1) Except as provided in this section, 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 filed document shall contain a caption 
identifying the respondent and the docket number. All legal briefs and 
legal memoranda greater than 20 pages in length (excluding attachments) 
shall contain a table of contents and a table of authorities with page 
references.
    (3) The original of any filed document (other than exhibits) shall 
be signed by the party filing or by its attorney or other 
representative. The signature constitutes a representation by the signer 
that he has read the 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 first document filed by any person shall contain the name, 
address, and telephone number of an individual authorized to receive 
service relating to the proceeding. Parties shall promptly file any 
changes in this information with the Regional Hearing Clerk, and serve 
copies on the Presiding Officer and all parties to the proceeding. If a 
party fails to furnish such information and any changes thereto, service 
to the party's last

[[Page 244]]

known address shall satisfy the requirements of paragraph (b)(2) of this 
section and Sec. 22.6.
    (5) The Environmental Appeals Board or the Presiding Officer may 
exclude from the record any document which does not comply with this 
section. Written notice of such exclusion, stating the reasons therefor, 
shall be promptly given to the person submitting the document. Such 
person may amend and resubmit any excluded document upon motion granted 
by the Environmental Appeals Board or the Presiding Officer, as 
appropriate.
    (d) Confidentiality of business information. (1) A person who wishes 
to assert a business confidentiality claim with regard to any 
information contained in any document to be filed in a proceeding under 
these Consolidated Rules of Practice shall assert such a claim in 
accordance with 40 CFR part 2 at the time that the document is filed. A 
document filed without a claim of business confidentiality shall be 
available to the public for inspection and copying.
    (2) Two versions of any document which contains information claimed 
confidential shall be filed with the Regional Hearing Clerk:
    (i) One version of the document shall contain the information 
claimed confidential. The cover page shall include the information 
required under paragraph (c)(2) of this section and the words ``Business 
Confidentiality Asserted''. The specific portion(s) alleged to be 
confidential shall be clearly identified within the document.
    (ii) A second version of the document shall contain all information 
except the specific information claimed confidential, which shall be 
redacted and replaced with notes indicating the nature of the 
information redacted. The cover page shall state that information 
claimed confidential has been deleted and that a complete copy of the 
document containing the information claimed confidential has been filed 
with the Regional Hearing Clerk.
    (3) Both versions of the document shall be served on the Presiding 
Officer and the complainant. Both versions of the document shall be 
served on any party, non-party participant, or representative thereof, 
authorized to receive the information claimed confidential by the person 
making the claim of confidentiality. Only the redacted version shall be 
served on persons not authorized to receive the confidential 
information.
    (4) Only the second, redacted version shall be treated as public 
information. An EPA officer or employee may disclose information claimed 
confidential in accordance with paragraph (d)(1) of this section only as 
authorized under 40 CFR part 2.



Sec. 22.6  Filing and service of rulings, orders and decisions.

    All rulings, orders, decisions, and other documents issued by the 
Regional Administrator or Presiding Officer 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 Board. Copies of such 
rulings, orders, decisions or other documents shall be served 
personally, by first class mail (including by certified mail or return 
receipt requested, Overnight Express and Priority Mail), by EPA's 
internal mail, or any reliable commercial delivery service, upon all 
parties by the Clerk of the Environmental Appeals Board, the Office of 
Administrative Law Judges or the Regional Hearing Clerk, as appropriate.



Sec. 22.7  Computation and extension of time.

    (a) Computation. In computing any period of time prescribed or 
allowed in these Consolidated 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 holidays 
shall be included. When a stated time expires on a Saturday, Sunday or 
Federal holiday, the stated time period shall be extended to include the 
next business day.
    (b) Extensions of time. The Environmental Appeals Board or the 
Presiding Officer may grant an extension of time for filing any 
document: upon timely motion of a party to the proceeding, for good 
cause shown, and after consideration of prejudice to other parties; or 
upon its own initiative. Any motion for an extension of time shall be 
filed sufficiently in advance of the due date so

[[Page 245]]

as to allow other parties reasonable opportunity to respond and to allow 
the Presiding Officer or Environmental Appeals Board reasonable 
opportunity to issue an order.
    (c) Service by mail or commercial delivery service. Service of the 
complaint is complete when the return receipt is signed. Service of all 
other documents is complete upon mailing or when placed in the custody 
of a reliable commercial delivery service. Where a document is served by 
first class mail or commercial delivery service, but not by overnight or 
same-day delivery, 5 days shall be added to the time allowed by these 
Consolidated Rules of Practice for the filing of a responsive document.



Sec. 22.8  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 Presiding Officer or any other person who is 
likely to advise these officials on any decision in the proceeding, 
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, 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. The requirements of this 
section shall not apply to any person who has formally recused himself 
from all adjudicatory functions in a proceeding, or who issues final 
orders only pursuant to Sec. 22.18(b)(3).



Sec. 22.9  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 Clerk of the Board, as appropriate.
    (b) The cost of duplicating documents shall be borne by the person 
seeking copies of such documents. The Agency may waive this cost in its 
discretion.



                   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 and non-party briefs.

    (a) Intervention. Any person desiring to become a party to a 
proceeding may move for leave to intervene. A motion for leave to 
intervene that is filed after the exchange of information pursuant to 
Sec. 22.19(a) shall not be granted unless the movant shows good cause 
for its failure to file before such exchange of information. All 
requirements of these Consolidated Rules of Practice shall apply to a 
motion for leave to intervene as if the movant were a party. The 
Presiding Officer shall grant leave to intervene in all or part of the 
proceeding if: the movant claims an interest relating to the cause of 
action; a final order may as a practical matter impair the movant's 
ability to protect that interest; and the movant's interest is not 
adequately represented by existing parties. The intervenor shall be 
bound by any agreements, arrangements and other matters previously made 
in the proceeding unless otherwise ordered by the Presiding Officer or 
the Environmental Appeals Board for good cause.
    (b) Non-party briefs. Any person who is not a party to a proceeding 
may move for leave to file a non-party brief. The motion shall identify 
the interest

[[Page 246]]

of the applicant and shall explain the relevance of the brief to the 
proceeding. All requirements of these Consolidated Rules of Practice 
shall apply to the motion as if the movant were a party. If the motion 
is granted, the Presiding Officer or Environmental Appeals Board shall 
issue an order setting the time for filing such brief. Any party to the 
proceeding may file a response to a non-party brief within 15 days after 
service of the non-party brief.



Sec. 22.12  Consolidation and severance.

    (a) Consolidation. The Presiding Officer or the Environmental 
Appeals Board may consolidate any or all matters at issue in two or more 
proceedings subject to these Consolidated Rules of Practice where: there 
exist common parties or common questions of fact or law; consolidation 
would expedite and simplify consideration of the issues; and 
consolidation would not adversely affect the rights of parties engaged 
in otherwise separate proceedings. Proceedings subject to subpart I of 
this part may be consolidated only upon the approval of all parties. 
Where a proceeding subject to the provisions of subpart I of this part 
is consolidated with a proceeding to which subpart I of this part does 
not apply, the procedures of subpart I of this part shall not apply to 
the consolidated proceeding.
    (b) Severance. The Presiding Officer or the Environmental Appeals 
Board may, for good cause, order any proceedings severed with respect to 
any or all parties or issues.



                    Subpart C--Prehearing Procedures



Sec. 22.13  Commencement of a proceeding.

    (a) Any proceeding subject to these Consolidated Rules of Practice 
is commenced by filing with the Regional Hearing Clerk a complaint 
conforming to Sec. 22.14.
    (b) Notwithstanding paragraph (a) of this section, where the parties 
agree to settlement of one or more causes of action before the filing of 
a complaint, a proceeding may be simultaneously commenced and concluded 
by the issuance of a consent agreement and final order pursuant to 
Sec. 22.18(b)(2) and (3).



Sec. 22.14  Complaint.

    (a) Content of complaint. Each complaint 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, implementing 
regulations, permit or order which respondent is alleged to have 
violated;
    (3) A concise statement of the factual basis for each violation 
alleged;
    (4) A description of all relief sought, including one or more of the 
following:
    (i) The amount of the civil penalty which is proposed to be 
assessed, and a brief explanation of the proposed penalty;
    (ii) Where a specific penalty demand is not made, the number of 
violations (where applicable, days of violation) for which a penalty is 
sought, a brief explanation of the severity of each violation alleged 
and a recitation of the statutory penalty authority applicable for each 
violation alleged in the complaint;
    (iii) A request for a Permit Action and a statement of its proposed 
terms and conditions; or
    (iv) A request for a compliance or corrective action order and a 
statement of the terms and conditions thereof;
    (5) Notice of respondent's right to request a hearing on any 
material fact alleged in the complaint, or on the appropriateness of any 
proposed penalty, compliance or corrective action order, or Permit 
Action;
    (6) Notice if subpart I of this part applies to the proceeding;
    (7) The address of the Regional Hearing Clerk; and
    (8) Instructions for paying penalties, if applicable.
    (b) Rules of practice. A copy of these Consolidated Rules of 
Practice shall accompany each complaint served.
    (c) 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

[[Page 247]]

Presiding Officer. Respondent shall have 20 additional days from the 
date of service of the amended complaint to file its answer.
    (d) 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 only upon motion 
granted by the Presiding Officer.



Sec. 22.15  Answer to the complaint.

    (a) General. Where respondent: Contests any material fact upon which 
the complaint is based; contends that the proposed penalty, compliance 
or corrective action order, or Permit Action, as the case may be, is 
inappropriate; or contends that it is entitled to judgment as a matter 
of law, it shall file an original and one copy of a written answer to 
the complaint with the Regional Hearing Clerk and shall serve copies of 
the answer on all other parties. Any such answer to the complaint must 
be filed with the Regional Hearing Clerk within 30 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: 
The circumstances or arguments which are alleged to constitute the 
grounds of any defense; the facts which respondent disputes; the basis 
for opposing any proposed relief; and whether a hearing is requested.
    (c) Request for a hearing. A hearing upon the issues raised by the 
complaint and answer may be held if requested by respondent in its 
answer. If the respondent does not request a hearing, the Presiding 
Officer may hold a hearing 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. Motions shall be served as provided by Sec. 22.5(b)(2). 
Upon the filing of a motion, other parties may file responses to the 
motion and the movant may file a reply to the response. Any additional 
responsive documents shall be permitted only by order of the Presiding 
Officer or Environmental Appeals Board, as appropriate. 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 sought; and
    (4) Be accompanied by any affidavit, certificate, other evidence or 
legal memorandum relied upon.
    (b) Response to motions. A party's response to any written motion 
must be filed within 15 days after service of such motion. The movant's 
reply to any written response must be filed within 10 days after service 
of such response and shall be limited to issues raised in the response. 
The Presiding Officer or the Environmental Appeals Board may set a 
shorter or longer time for response or reply, or make other orders 
concerning the disposition of motions. The response or reply shall be 
accompanied by any affidavit, certificate, other evidence, or legal 
memorandum relied upon. Any party who fails to respond within the 
designated period waives any objection to the granting of the motion.
    (c) Decision. The Regional Judicial Officer (or in a proceeding 
commenced at EPA Headquarters, the Environmental Appeals Board) shall 
rule on all motions filed or made before an answer to the complaint is 
filed. Except as provided in Secs. 22.29(c) and 22.51, an Administrative 
Law Judge shall rule on all motions filed or made after an answer is 
filed and before an initial decision has become final or has been 
appealed. The Environmental Appeals Board shall rule as provided in 
Sec. 22.29(c) and on all motions filed or made after an

[[Page 248]]

appeal of the initial decision is filed, except as provided pursuant to 
Sec. 22.28.
    (d) Oral argument. The Presiding Officer or the Environmental 
Appeals Board may permit oral argument on motions in its discretion.



Sec. 22.17  Default.

    (a) Default. A party may be found to be in default: after motion, 
upon failure to file a timely answer to the complaint; upon failure to 
comply with the information exchange requirements of Sec. 22.19(a) or an 
order of the Presiding Officer; or upon failure to appear at a 
conference or hearing. Default by respondent constitutes, for purposes 
of the pending proceeding only, an admission of all facts alleged in the 
complaint and a waiver of respondent's right to contest such factual 
allegations. Default by complainant constitutes a waiver of 
complainant's right to proceed on the merits of the action, and shall 
result in the dismissal of the complaint with prejudice.
    (b) Motion for default. A motion for default may seek resolution of 
all or part of the proceeding. Where the motion requests the assessment 
of a penalty or the imposition of other relief against a defaulting 
party, the movant must specify the penalty or other relief sought and 
state the legal and factual grounds for the relief requested.
    (c) Default order. When the Presiding Officer finds that default has 
occurred, he shall issue a default order against the defaulting party as 
to any or all parts of the proceeding unless the record shows good cause 
why a default order should not be issued. If the order resolves all 
outstanding issues and claims in the proceeding, it shall constitute the 
initial decision under these Consolidated Rules of Practice. The relief 
proposed in the complaint or the motion for default shall be ordered 
unless the requested relief is clearly inconsistent with the record of 
the proceeding or the Act. For good cause shown, the Presiding Officer 
may set aside a default order.
    (d) Payment of penalty; effective date of compliance or corrective 
action orders, and Permit Actions. Any penalty assessed in the default 
order shall become due and payable by respondent without further 
proceedings 30 days after the default order becomes final under 
Sec. 22.27(c). Any default order requiring compliance or corrective 
action shall be effective and enforceable without further proceedings on 
the date the default order becomes final under Sec. 22.27(c). Any Permit 
Action ordered in the default order shall become effective without 
further proceedings on the date that the default order becomes final 
under Sec. 22.27(c).



Sec. 22.18  Quick resolution; settlement; alternative dispute resolution.

    (a) Quick resolution. (1) A respondent may resolve the proceeding at 
any time by paying the specific penalty proposed in the complaint or in 
complainant's prehearing exchange in full as specified by complainant 
and by filing with the Regional Hearing Clerk a copy of the check or 
other instrument of payment. If the complaint contains a specific 
proposed penalty and respondent pays that proposed penalty in full 
within 30 days after receiving the complaint, then no answer need be 
filed. This paragraph (a) shall not apply to any complaint which seeks a 
compliance or corrective action order or Permit Action. In a proceeding 
subject to the public comment provisions of Sec. 22.45, this quick 
resolution is not available until 10 days after the close of the comment 
period.
    (2) Any respondent who wishes to resolve a proceeding by paying the 
proposed penalty instead of filing an answer, but who needs additional 
time to pay the penalty, may file a written statement with the Regional 
Hearing Clerk within 30 days after receiving the complaint stating that 
the respondent agrees to pay the proposed penalty in accordance with 
paragraph (a)(1) of this section. The written statement need not contain 
any response to, or admission of, the allegations in the complaint. 
Within 60 days after receiving the complaint, the respondent shall pay 
the full amount of the proposed penalty. Failure to make such payment 
within 60 days of receipt of the complaint may subject the respondent to 
default pursuant to Sec. 22.17.

[[Page 249]]

    (3) Upon receipt of payment in full, the Regional Judicial Officer 
or Regional Administrator, or, in a proceeding commenced at EPA 
Headquarters, the Environmental Appeals Board, shall issue a final 
order. Payment by respondent shall constitute a waiver of respondent's 
rights to contest the allegations and to appeal the final order.
    (b) Settlement. (1) 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 parties may engage 
in settlement discussions whether or not the respondent requests a 
hearing. Settlement discussions shall not affect the respondent's 
obligation to file a timely answer under Sec. 22.15.
    (2) Consent agreement. Any and all terms and conditions of a 
settlement shall be recorded in a written consent agreement signed by 
all parties or their representatives. The consent agreement shall state 
that, for the purpose of the proceeding, respondent: Admits the 
jurisdictional allegations of the complaint; admits the facts stipulated 
in the consent agreement or neither admits nor denies specific factual 
allegations contained in the complaint; consents to the assessment of 
any stated civil penalty, to the issuance of any specified compliance or 
corrective action order, to any conditions specified in the consent 
agreement, and to any stated Permit Action; and waives any right to 
contest the allegations and its right to appeal the proposed final order 
accompanying the consent agreement. Where complainant elects to commence 
a proceeding pursuant to Sec. 22.13(b), the consent agreement shall also 
contain the elements described at Sec. 22.14(a)(1)-(3) and (8). The 
parties shall forward the executed consent agreement and a proposed 
final order to the Regional Judicial Officer or Regional Administrator, 
or, in a proceeding commenced at EPA Headquarters, the Environmental 
Appeals Board.
    (3) Conclusion of proceeding. No settlement or consent agreement 
shall dispose of any proceeding under these Consolidated Rules of 
Practice without a final order from the Regional Judicial Officer or 
Regional Administrator, or, in a proceeding commenced at EPA 
Headquarters, the Environmental Appeals Board, ratifying the parties' 
consent agreement.
    (c) Scope of resolution or settlement. Full payment of the penalty 
proposed in a complaint pursuant to paragraph (a) of this section or 
settlement pursuant to paragraph (b) of this section shall not in any 
case affect the right of the Agency or the United States to pursue 
appropriate injunctive or other equitable relief or criminal sanctions 
for any violations of law. Full payment of the penalty proposed in a 
complaint pursuant to paragraph (a) of this section or settlement 
pursuant to paragraph (b) of this section shall only resolve 
respondent's liability for Federal civil penalties for the violations 
and facts alleged in the complaint.
    (d) Alternative means of dispute resolution. (1) The parties may 
engage in any process within the scope of the Alternative Dispute 
Resolution Act (``ADRA''), 5 U.S.C. 581 et seq., which may facilitate 
voluntary settlement efforts. Such process shall be subject to the 
confidentiality provisions of the ADRA.
    (2) Dispute resolution under this paragraph (d) does not divest the 
Presiding Officer of jurisdiction and does not automatically stay the 
proceeding. All provisions of these Consolidated Rules of Practice 
remain in effect notwithstanding any dispute resolution proceeding.
    (3) The parties may choose any person to act as a neutral, or may 
move for the appointment of a neutral. If the Presiding Officer grants a 
motion for the appointment of a neutral, the Presiding Officer shall 
forward the motion to the Chief Administrative Law Judge, except in 
proceedings under subpart I of this part, in which the Presiding Officer 
shall forward the motion to the Regional Administrator. The Chief 
Administrative Law Judge or Regional Administrator, as appropriate, 
shall designate a qualified neutral.



Sec. 22.19  Prehearing information exchange; prehearing conference; other 
discovery.

    (a) Prehearing information exchange. (1) In accordance with an order 
issued by the Presiding Officer, each party

[[Page 250]]

shall file a prehearing information exchange. Except as provided in 
Sec. 22.22(a), a document or exhibit that has not been included in 
prehearing information exchange shall not be admitted into evidence, and 
any witness whose name and testimony summary has not been included in 
prehearing information exchange shall not be allowed to testify. Parties 
are not required to exchange information relating to settlement which 
would be excluded in the federal courts under Rule 408 of the Federal 
Rules of Evidence. Documents and exhibits shall be marked for 
identification as ordered by the Presiding Officer.
    (2) Each party's prehearing information exchange shall contain:
    (i) The names of any expert or other witnesses it intends to call at 
the hearing, together with a brief narrative summary of their expected 
testimony, or a statement that no witnesses will be called; and (ii) 
Copies of all documents and exhibits which it intends to introduce into 
evidence at the hearing.
    (3) If the proceeding is for the assessment of a penalty and 
complainant has already specified a proposed penalty, complainant shall 
explain in its prehearing information exchange how the proposed penalty 
was calculated in accordance with any criteria set forth in the Act, and 
the respondent shall explain in its prehearing information exchange why 
the proposed penalty should be reduced or eliminated.
    (4) If the proceeding is for the assessment of a penalty and 
complainant has not specified a proposed penalty, each party shall 
include in its prehearing information exchange all factual information 
it considers relevant to the assessment of a penalty. Within 15 days 
after respondent files its prehearing information exchange, complainant 
shall file a document specifying a proposed penalty and explaining how 
the proposed penalty was calculated in accordance with any criteria set 
forth in the Act.
    (b) Prehearing conference. The Presiding Officer, at any time before 
the hearing begins, may direct the parties and their counsel or other 
representatives to participate in a conference to consider:
    (1) Settlement of the case;
    (2) 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) The time and place for the hearing; and
    (7) Any other matters which may expedite the disposition of the 
proceeding.
    (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. The 
Presiding Officer shall ensure that the record of the proceeding 
includes any stipulations, agreements, rulings or orders made during the 
conference.
    (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 the Presiding Officer determines that there is 
good cause to hold it at another location or by telephone.
    (e) Other discovery. (1) After the information exchange provided for 
in paragraph (a) of this section, a party may move for additional 
discovery. The motion shall specify the method of discovery sought, 
provide the proposed discovery instruments, and describe in detail the 
nature of the information and/or documents sought (and, where relevant, 
the proposed time and place where discovery would be conducted). The 
Presiding Officer may order such other discovery only if it:
    (i) Will neither unreasonably delay the proceeding nor unreasonably 
burden the non-moving party;
    (ii) Seeks information that is most reasonably obtained from the 
non-moving party, and which the non-moving party has refused to provide 
voluntarily; and

[[Page 251]]

    (iii) Seeks information that has significant probative value on a 
disputed issue of material fact relevant to liability or the relief 
sought.
    (2) Settlement positions and information regarding their development 
(such as penalty calculations for purposes of settlement based upon 
Agency settlement policies) shall not be discoverable.
    (3) The Presiding Officer may order depositions upon oral questions 
only in accordance with paragraph (e)(1) of this section and upon an 
additional finding that:
    (i) The information sought cannot reasonably be obtained by 
alternative methods of discovery; 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.
    (4) The Presiding Officer may require the attendance of witnesses or 
the production of documentary evidence by subpoena, if authorized under 
the Act. The Presiding Officer may issue a subpoena for discovery 
purposes only in accordance with paragraph (e)(1) of this section and 
upon an additional showing of the grounds and necessity therefor. 
Subpoenas shall be served in accordance with Sec. 22.5(b)(1). 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. Any 
fees shall be paid by the party at whose request the witness appears. 
Where a witness appears pursuant to a request initiated by the Presiding 
Officer, fees shall be paid by the Agency.
    (5) Nothing in this paragraph (e) shall limit a party's right to 
request admissions or stipulations, a respondent's right to request 
Agency records under the Federal Freedom of Information Act, 5 U.S.C. 
552, or EPA's authority under any applicable law to conduct inspections, 
issue information request letters or administrative subpoenas, or 
otherwise obtain information.
    (f) Supplementing prior exchanges. A party who has made an 
information exchange under paragraph (a) of this section, or who has 
exchanged information in response to a request for information or a 
discovery order pursuant to paragraph (e) of this section, shall 
promptly supplement or correct the exchange when the party learns that 
the information exchanged or response provided is incomplete, inaccurate 
or outdated, and the additional or corrective information has not 
otherwise been disclosed to the other party pursuant to this section.
    (g) Failure to exchange information. Where a party fails to provide 
information within its control as required pursuant to this section, the 
Presiding Officer may, in his discretion:
    (1) Infer that the information would be adverse to the party failing 
to provide it;
    (2) Exclude the information from evidence; or
    (3) Issue a default order under Sec. 22.17(c).



Sec. 22.20  Accelerated decision; decision to dismiss.

    (a) General. The Presiding Officer may at any time render an 
accelerated decision in favor of a party as to any or all parts of the 
proceeding, without 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. The Presiding Officer, upon motion of the respondent, may at any 
time dismiss a proceeding 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 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. The partial 
accelerated decision or the order dismissing certain counts shall

[[Page 252]]

specify the facts which appear substantially uncontroverted, and the 
issues and claims upon which the hearing will proceed.



                      Subpart D--Hearing Procedures



Sec. 22.21  Assignment of Presiding Officer; scheduling the hearing.

    (a) Assignment of Presiding Officer. When an answer is filed, the 
Regional Hearing Clerk shall forward a copy of the complaint, the 
answer, and any other documents filed in the proceeding to the Chief 
Administrative Law Judge who shall serve as Presiding Officer or assign 
another Administrative Law Judge as Presiding Officer. 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. The Presiding Officer shall hold a hearing if 
the proceeding presents genuine issues of material fact. The Presiding 
Officer shall serve upon the parties a notice of hearing setting forth a 
time and place for the hearing not later than 30 days prior to the date 
set for the hearing. The Presiding Officer may require the attendance of 
witnesses or the production of documentary evidence by subpoena, if 
authorized under the Act, upon a showing of the grounds and necessity 
therefor, and the materiality and relevancy of the evidence to be 
adduced.
    (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. (1) The Presiding Officer shall admit all evidence 
which is not irrelevant, immaterial, unduly repetitious, 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 (28 U.S.C.) is not admissible. If, however, a 
party fails to provide any document, exhibit, witness name or summary of 
expected testimony required to be exchanged under Sec. 22.19 (a), (e) or 
(f) to all parties at least 15 days before the hearing date, the 
Presiding Officer shall not admit the document, exhibit or testimony 
into evidence, unless the non-exchanging party had good cause for 
failing to exchange the required information and provided the required 
information to all other parties as soon as it had control of the 
information, or had good cause for not doing so.
    (2) In the presentation, admission, disposition, and use of oral and 
written evidence, EPA officers, employees and authorized representatives 
shall preserve the confidentiality of information claimed confidential, 
whether or not the claim is made by a party to the proceeding, unless 
disclosure is authorized pursuant to 40 CFR part 2. A business 
confidentiality claim shall not prevent information from being 
introduced into evidence, but shall instead require that the information 
be treated in accordance with 40 CFR part 2, subpart B. The Presiding 
Officer or the Environmental Appeals Board may consider such evidence in 
a proceeding closed to the public, and which may be before some, but not 
all, parties, as necessary. Such proceeding shall be closed only to the 
extent necessary to comply with 40 CFR part 2, subpart B, for 
information claimed confidential. Any affected person may move for an 
order protecting the information claimed confidential.
    (b) Examination of witnesses. Witnesses shall be examined orally, 
under oath or affirmation, except as otherwise provided in paragraphs 
(c) and (d) of this section 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) Written testimony. The Presiding Officer may admit and insert 
into the record as evidence, in lieu of oral testimony, written 
testimony prepared by a witness. The admissibility of any part of the 
testimony shall be subject to the same rules as if the testimony were 
produced under oral examination. Before any such testimony is read or 
admitted into evidence, the party who has called the witness shall 
deliver a

[[Page 253]]

copy of the testimony to the Presiding Officer, the reporter, and 
opposing counsel. The witness presenting the testimony shall swear to or 
affirm the testimony and shall be subject to appropriate oral cross-
examination.
    (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 
which can be 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) Offers of proof. Whenever the Presiding Officer denies a motion 
for admission into evidence, the party offering the information 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 information excluded. The offer of proof 
for excluded documents or exhibits shall consist of the documents or 
exhibits excluded. Where the Environmental Appeals Board decides that 
the ruling of the Presiding Officer in excluding the information from 
evidence was both erroneous and prejudicial, the hearing may be reopened 
to permit the taking of such evidence.



Sec. 22.24  Burden of presentation; burden of persuasion; preponderance of 
the evidence standard.

    (a) The complainant has the burdens of presentation and persuasion 
that the violation occurred as set forth in the complaint and that the 
relief sought is appropriate. Following complainant's establishment of a 
prima facie case, respondent shall have the burden of presenting any 
defense to the allegations set forth in the complaint and any response 
or evidence with respect to the appropriate relief. The respondent has 
the burdens of presentation and persuasion for any affirmative defenses.
    (b) Each matter of controversy shall be decided 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 ordered to be kept confidential by the Presiding Officer. Any 
party may file a motion to conform the transcript to the actual 
testimony within 30 days after receipt of the transcript, or 45 days 
after the parties are notified of the availability of the transcript, 
whichever is sooner.



Sec. 22.26  Proposed findings, conclusions, and order.

    After the hearing, any party may file proposed findings of fact, 
conclusions

[[Page 254]]

of law, and a proposed order, together with briefs in support thereof. 
The Presiding Officer shall set a schedule for filing these documents 
and any reply briefs, but shall not require them before the last date 
for filing motions under Sec. 22.25 to conform the transcript to the 
actual testimony. 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. After the period for filing briefs under 
Sec. 22.26 has expired, the Presiding Officer shall issue an initial 
decision. The initial decision shall contain findings of fact, 
conclusions regarding all material issues of law or discretion, as well 
as reasons therefor, and, if appropriate, a recommended civil penalty 
assessment, compliance order, corrective action order, or Permit Action. 
Upon receipt of an initial decision, the Regional Hearing Clerk shall 
forward copies of the initial decision to the Environmental Appeals 
Board and the Assistant Administrator for the Office of Enforcement and 
Compliance Assurance.
    (b) Amount of civil penalty. If the Presiding Officer determines 
that a violation has occurred and the complaint seeks a civil penalty, 
the Presiding Officer shall determine the amount of the recommended 
civil penalty based on the evidence in the record and in accordance with 
any penalty criteria set forth in the Act. The Presiding Officer shall 
consider any civil penalty guidelines issued under the Act. The 
Presiding Officer shall explain in detail in the initial decision how 
the penalty to be assessed corresponds to any penalty criteria set forth 
in the Act. If the Presiding Officer decides to assess a penalty 
different in amount from the penalty proposed by complainant, the 
Presiding Officer shall set forth in the initial decision the specific 
reasons for the increase or decrease. If the respondent has defaulted, 
the Presiding Officer shall not assess a penalty greater than that 
proposed by complainant in the complaint, the prehearing information 
exchange or the motion for default, whichever is less.
    (c) Effect of initial decision. The initial decision of the 
Presiding Officer shall become a final order 45 days after its service 
upon the parties and without further proceedings unless:
    (1) A party moves to reopen the hearing;
    (2) A party appeals the initial decision to the Environmental 
Appeals Board;
    (3) A party moves to set aside a default order that constitutes an 
initial decision; or
    (4) The Environmental Appeals Board elects to review the initial 
decision on its own initiative.
    (d) Exhaustion of administrative remedies. Where a respondent fails 
to appeal an initial decision to the Environmental Appeals Board 
pursuant to Sec. 22.30 and that initial decision becomes a final order 
pursuant to paragraph (c) of this section, respondent waives its rights 
to judicial review. An initial decision that is appealed to the 
Environmental Appeals Board shall not be final or operative pending the 
Environmental Appeals Board's issuance of a final order.



Sec. 22.28  Motion to reopen a hearing.

    (a) Filing and content. A motion to reopen a hearing to take further 
evidence must be filed no later than 20 days after service of the 
initial decision and shall state the specific grounds upon which relief 
is sought. Where the movant seeks to introduce new evidence, the motion 
shall: state briefly the nature and purpose of the evidence to be 
adduced; show that such evidence is not cumulative; and 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 15 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 a response. A reopened hearing shall be governed by 
the applicable sections of these Consolidated Rules of Practice.

[[Page 255]]

The filing of a motion to reopen a hearing shall automatically stay the 
running of the time periods for an initial decision becoming final under 
Sec. 22.27(c) and for appeal under Sec. 22.30. These time periods shall 
begin again in full when the motion is denied or an amended initial 
decision is served.



              Subpart F--Appeals and Administrative Review



Sec. 22.29  Appeal from or review of interlocutory orders or rulings.

    (a) Request for interlocutory appeal. Appeals from orders or rulings 
other than an initial decision shall be allowed only at the discretion 
of the Environmental Appeals Board. A party seeking interlocutory appeal 
of such orders or rulings to the Environmental Appeals Board shall file 
a motion within 10 days of service of the order or ruling, requesting 
that the Presiding Officer forward the order or ruling to the 
Environmental Appeals Board for review, and stating briefly the grounds 
for the appeal.
    (b) Availability of interlocutory appeal. The Presiding Officer may 
recommend any order or ruling for review by 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 an immediate appeal from the order or ruling will 
materially advance the ultimate termination of the proceeding, or review 
after the final order is issued will be inadequate or ineffective.
    (c) Interlocutory review. If the Presiding Officer has recommended 
review and the Environmental Appeals Board determines that interlocutory 
review is inappropriate, or takes no action within 30 days of the 
Presiding Officer's recommendation, the appeal is dismissed. When the 
Presiding Officer declines to recommend review of an order or ruling, 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 filed within 10 days of service of an order of the 
Presiding Officer refusing to recommend such order or ruling for 
interlocutory review.



Sec. 22.30  Appeal from or review of initial decision.

    (a) Notice of appeal. (1) Within 30 days after the initial decision 
is served, any party may appeal any adverse order or ruling of the 
Presiding Officer by filing an original and one copy of a notice of 
appeal and an accompanying appellate brief with the Environmental 
Appeals Board (Clerk of the Board (Mail Code 1103B), United States 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460. Hand deliveries may be made at Suite 600, 1341 G 
Street, NW.).). One copy of any document filed with the Clerk of the 
Board shall also be served on the Regional Hearing Clerk. Appellant also 
shall serve a copy of the notice of appeal upon the Presiding Officer. 
Appellant shall simultaneously serve one copy of the notice and brief 
upon all other parties and non-party participants. The notice of appeal 
shall summarize the order or ruling, or part thereof, appealed from. The 
appellant's brief shall contain tables of contents and authorities (with 
page references), 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 (with appropriate references to the record), 
argument on the issues presented, a short conclusion stating the precise 
relief sought, alternative findings of fact, and alternative conclusions 
regarding issues of law or discretion. If a timely notice of appeal is 
filed by a party, any other party may file a notice of appeal on any 
issue within 20 days after the date on which the first notice of appeal 
was served.
    (2) Within 20 days of service of notices of appeal and briefs under 
paragraph (a)(1) of this section, any other party or non-party 
participant may file with the Environmental Appeals Board an original 
and one copy of a response brief responding to argument raised by the 
appellant, together with reference to the relevant portions of the 
record, initial decision, or opposing brief. Appellee shall 
simultaneously serve one

[[Page 256]]

copy of the response brief upon each party , non-party participant, and 
the Regional Hearing Clerk. Response briefs shall be limited to the 
scope of the appeal brief. Further briefs may be filed only with the 
permission of the Environmental Appeals Board.
    (b) Review initiated by the Environmental Appeals Board. Whenever 
the Environmental Appeals Board determines to review an initial decision 
on its own initiative, it shall file notice of its intent to review that 
decision with the Clerk of the Board, and serve it upon the Regional 
Hearing Clerk, the Presiding Officer and the parties within 45 days 
after the initial decision was served upon the parties. The notice shall 
include a statement of issues to be briefed by the parties and a time 
schedule for the filing and service of briefs.
    (c) Scope of appeal or review. The parties' rights of appeal shall 
be limited to those issues raised during the course of the proceeding 
and by the initial decision, and to issues concerning subject matter 
jurisdiction. If the Environmental Appeals Board determines that issues 
raised, but not appealed by the parties, should be argued, it shall give 
the parties reasonable written notice of such determination to permit 
preparation of adequate argument. The Environmental Appeals Board may 
remand the case to the Presiding Officer for further proceedings.
    (d) Argument before the Environmental Appeals Board. The 
Environmental Appeals Board may, at its discretion, order oral argument 
on any or all issues in a proceeding.
    (e) Motions on appeal. All motions made during the course of an 
appeal shall conform to Sec. 22.16 unless otherwise provided.
    (f) Decision. The Environmental Appeals Board shall adopt, modify, 
or set aside the findings of fact and conclusions of law or discretion 
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 assess a penalty that is higher or lower than the 
amount recommended to be assessed in the decision or order being 
reviewed or from the amount sought in the complaint, except that if the 
order being reviewed is a default order, the Environmental Appeals Board 
may not increase the amount of the penalty above that proposed in the 
complaint or in the motion for default, whichever is less. The 
Environmental Appeals Board may adopt, modify or set aside any 
recommended compliance or corrective action order or Permit Action. The 
Environmental Appeals Board may remand the case to the Presiding Officer 
for further action.

[64 FR 40176, July 23, 1999, as amended at 68 FR 2204, Jan. 16, 2003]



                         Subpart G--Final Order



Sec. 22.31  Final order.

    (a) Effect of final order. A final order constitutes the final 
Agency action in a proceeding. The final order shall not in any case 
affect the right of the Agency or the United States to pursue 
appropriate injunctive or other equitable relief or criminal sanctions 
for any violations of law. The final order shall resolve only those 
causes of action alleged in the complaint, or for proceedings commenced 
pursuant to Sec. 22.13(b), alleged in the consent agreement. The final 
order does not waive, extinguish or otherwise affect respondent's 
obligation to comply with all applicable provisions of the Act and 
regulations promulgated thereunder.
    (b) Effective date. A final order is effective upon filing. Where an 
initial decision becomes a final order pursuant to Sec. 22.27(c), the 
final order is effective 45 days after the initial decision is served on 
the parties.
    (c) Payment of a civil penalty. The respondent shall pay the full 
amount of any civil penalty assessed in the final order within 30 days 
after the effective date of the final order unless otherwise ordered. 
Payment shall be made by sending a cashier's check or certified check to 
the payee specified in the complaint, unless otherwise instructed by the 
complainant. The check shall note the case title and docket number. 
Respondent shall serve copies of the check or other instrument of 
payment on the Regional Hearing Clerk and on complainant. Collection of 
interest on overdue payments shall be in accordance with the Debt 
Collection Act, 31 U.S.C. 3717.

[[Page 257]]

    (d) Other relief. Any final order requiring compliance or corrective 
action, or a Permit Action, shall become effective and enforceable 
without further proceedings on the effective date of the final order 
unless otherwise ordered.
    (e) Final orders to Federal agencies on appeal. (1) A final order of 
the Environmental Appeals Board issued pursuant to Sec. 22.30 to a 
department, agency, or instrumentality of the United States shall become 
effective 30 days after its service upon the parties unless 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 30 days of service of the final 
order. If a timely request is made, a decision by the Administrator 
shall become the final order.
    (2) A motion for reconsideration pursuant to Sec. 22.32 shall not 
toll the 30-day period described in paragraph (e)(1) of this section 
unless specifically so ordered by the Environmental Appeals Board.



Sec. 22.32  Motion to reconsider a final order.

    Motions to reconsider a final order issued pursuant to Sec. 22.30 
shall be filed within 10 days after service of the final order. Motions 
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. 22.4(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 so ordered 
by the Environmental Appeals Board.



                      Subpart H--Supplemental Rules



Sec. 22.33  [Reserved]



Sec. 22.34  Supplemental rules governing the administrative assessment of 
civil penalties under the Clean Air Act.

    (a) Scope. This section shall apply, in conjunction with Secs. 22.1 
through 22.32, in administrative proceedings to assess a civil penalty 
conducted under sections 113(d), 205(c), 211(d), and 213(d) of the Clean 
Air Act, as amended (42 U.S.C. 7413(d), 7524(c), 7545(d), and 7547(d)). 
Where inconsistencies exist between this section and Secs. 22.1 through 
22.32, this section shall apply.
    (b) Issuance of notice. Prior to the issuance of a final 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. 
Service of a complaint or a consent agreement and final order pursuant 
to Sec. 22.13 satisfies this notice requirement.



Sec. 22.35  Supplemental rules governing the administrative assessment of 
civil penalties under the Federal Insecticide, Fungicide, and Rodenticide Act.

    (a) Scope. This section shall apply, in conjunction with Secs. 22.1 
through 22.32, in administrative proceedings to assess a civil penalty 
conducted under section 14(a) of the Federal Insecticide, Fungicide, and 
Rodenticide Act as amended (7 U.S.C. 136l(a)). Where inconsistencies 
exist between this section and Secs. 22.1 through 22.32, this section 
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. For a 
person whose residence is outside the United States and outside any 
territory or possession of the United States, the prehearing conference 
and the hearing shall be held at the EPA office listed at 40 CFR 1.7 
that is closest to either the person's primary place of business within 
the

[[Page 258]]

United States, or the primary place of business of the person's U.S. 
agent, unless otherwise agreed by all parties.



Sec. 22.36  [Reserved]



Sec. 22.37  Supplemental rules governing administrative proceedings under 
the Solid Waste Disposal Act.

    (a) Scope. This section shall apply, in conjunction with Secs. 22.1 
through 22.32, in administrative proceedings under sections 3005(d) and 
(e), 3008, 9003 and 9006 of the Solid Waste Disposal Act (42 U.S.C. 
6925(d) and (e), 6928, 6991b and 6991e) (``SWDA''). Where 
inconsistencies exist between this section and Secs. 22.1 through 22.32, 
this section shall apply.
    (b) Corrective action and compliance orders. A complaint may contain 
a compliance order issued under section 3008(a) or section 9006(a), or a 
corrective action order issued under section 3008(h) or section 
9003(h)(4) of the SWDA. Any such order shall automatically become a 
final order unless, no later than 30 days after the order is served, the 
respondent requests a hearing pursuant to Sec. 22.15.



Sec. 22.38  Supplemental rules of practice governing the administrative 
assessment of civil penalties under the Clean Water Act.

    (a) Scope. This section shall apply, in conjunction with Secs. 22.1 
through 22.32 and Sec. 22.45, in administrative proceedings for the 
assessment of any civil penalty under section 309(g) or section 
311(b)(6) of the Clean Water Act (``CWA'')(33 U.S.C. 1319(g) and 
1321(b)(6)). Where inconsistencies exist between this section and 
Secs. 22.1 through 22.32, this section shall apply.
    (b) Consultation with States. For proceedings pursuant to section 
309(g), the complainant shall provide the State agency with the most 
direct authority over the matters at issue in the case an opportunity to 
consult with the complainant. Complainant shall notify the State agency 
within 30 days following proof of service of the complaint on the 
respondent or, in the case of a proceeding proposed to be commenced 
pursuant to Sec. 22.13(b), no less than 40 days before the issuance of 
an order assessing a civil penalty.
    (c) Administrative procedure and judicial review. Action of the 
Administrator for which review could have been obtained under section 
509(b)(1) of the CWA, 33 U.S.C. 1369(b)(1), shall not be subject to 
review in an administrative proceeding for the assessment of a civil 
penalty under section 309(g) or section 311(b)(6).



Sec. 22.39  Supplemental rules governing the administrative assessment of 
civil penalties under section 109 of the Comprehensive Environmental 
Response, 
          Compensation, and Liability Act of 1980, as amended.

    (a) Scope. This section shall apply, in conjunction with Secs. 22.10 
through 22.32, in 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 this section and Secs. 22.1 
through 22.32, this section shall apply.
    (b) Judicial review. Any person who requested a hearing with respect 
to a Class II civil penalty under section 109(b) of CERCLA, 42 U.S.C. 
9609(b), 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(a)(4) of CERCLA, 42 U.S.C. 9609(a)(4), 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 served on the parties.
    (c) Payment of civil penalty assessed. Payment of civil penalties 
assessed in the final order 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.

[[Page 259]]



Sec. 22.40  [Reserved]



Sec. 22.41  Supplemental rules governing the administrative assessment of 
civil penalties under Title II of the Toxic Substance Control Act, enacted 
as section 
          2 of the Asbestos Hazard Emergency Response Act (AHERA).

    (a) Scope. This section shall apply, in conjunction with Secs. 22.1 
through 22.32, in administrative proceedings to assess a civil penalty 
conducted under section 207 of the Toxic Substances Control Act 
(``TSCA'') (15 U.S.C. 2647). Where inconsistencies exist between this 
section and Secs. 22.1 through 22.32, this section shall apply.
    (b) Collection of civil penalty. Any civil penalty collected under 
TSCA section 207 shall be used by the local educational agency for 
purposes of complying with Title II of TSCA. 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.



Sec. 22.42  Supplemental rules governing the administrative assessment of 
civil penalties for violations of compliance orders issued to owners or 
operators of 
          public water systems under part B of the Safe Drinking Water 
          Act.

    (a) Scope. This section shall apply, in conjunction with Secs. 22.1 
through 22.32, in administrative proceedings to assess a civil penalty 
under section 1414(g)(3)(B) of the Safe Drinking Water Act, 42 U.S.C. 
300g-3(g)(3)(B). Where inconsistencies exist between this section and 
Secs. 22.1 through 22.32, this section shall apply.
    (b) Choice of forum. A complaint which specifies that subpart I of 
this part applies shall also state that respondent has a right to elect 
a hearing on the record in accordance with 5 U.S.C. 554, and that 
respondent waives this right unless it requests in its answer a hearing 
on the record in accordance with 5 U.S.C. 554. Upon such request, the 
Regional Hearing Clerk shall recaption the documents in the record as 
necessary, and notify the parties of the changes.



Sec. 22.43  Supplemental rules governing the administrative assessment of 
civil penalties against a federal agency under the Safe Drinking Water Act.

    (a) Scope. This section shall apply, in conjunction with Secs. 22.1 
through 22.32, in administrative proceedings to assess a civil penalty 
against a federal agency under section 1447(b) of the Safe Drinking 
Water Act, 42 U.S.C. 300j-6(b). Where inconsistencies exist between this 
section and Secs. 22.1 through 22.32, this section shall apply.
    (b) Effective date of final penalty order. Any penalty order issued 
pursuant to this section and section 1447(b) of the Safe Drinking Water 
Act shall become effective 30 days after it has been served on the 
parties.
    (c) Public notice of final penalty order. Upon the issuance of a 
final penalty order under this section, the Administrator shall provide 
public notice of the order by publication, and by providing notice to 
any person who requests such notice. The notice shall include:
    (1) The docket number of the order;
    (2) The address and phone number of the Regional Hearing Clerk from 
whom a copy of the order may be obtained;
    (3) The location of the facility where violations were found;
    (4) A description of the violations;
    (5) The penalty that was assessed; and
    (6) A notice that any interested person may, within 30 days of the 
date the order becomes final, obtain judicial review of the penalty 
order pursuant to section 1447(b) of the Safe Drinking Water Act, and 
instruction that persons seeking judicial review shall provide copies of 
any appeal to the persons described in 40 CFR 135.11(a).



Sec. 22.44  Supplemental rules of practice governing the termination of 
permits under section 402(a) of the Clean Water Act or under section 
3008(a)(3) of the 
          Resource Conservation and Recovery Act.

    (a) Scope of this subpart. The supplemental rules of practice in 
this subpart shall also apply in conjunction with the Consolidated Rules 
of Practice in this part and with the administrative proceedings for the 
termination of permits under section 402(a) of the Clean Water Act or 
under section 3008(a)(3) of

[[Page 260]]

the Resource Conservation and Recovery Act. Notwithstanding the 
Consolidated Rules of Practice, these supplemental rules shall govern 
with respect to the termination of such permits.
    (b) In any proceeding to terminate a permit for cause under 
Sec. 122.64 or Sec. 270.43 of this chapter during the term of the 
permit:
    (1) The complaint shall, in addition to the requirements of 
Sec. 22.14(b), contain any additional information specified in 
Sec. 124.8 of this chapter;
    (2) The Director (as defined in Sec. 124.2 of this chapter) shall 
provide public notice of the complaint in accordance with Sec. 124.10 of 
this chapter, and allow for public comment in accordance with 
Sec. 124.11 of this chapter; and
    (3) The Presiding Officer shall admit into evidence the contents of 
the Administrative Record described in Sec. 124.9 of this chapter, and 
any public comments received.

[65 FR 30904, May 15, 2000]



Sec. 22.45  Supplemental rules governing public notice and comment in 
proceedings under sections 309(g) and 311(b)(6)(B)(ii) of the Clean Water 
Act and section 
          1423(c) of the Safe Drinking Water Act.

    (a) Scope. This section shall apply, in conjunction with Secs. 22.1 
through 22.32, in administrative proceedings for the assessment of any 
civil penalty under sections 309(g) and 311(b)(6)(B)(ii) of the Clean 
Water Act (33 U.S.C. 1319(g) and 1321(b)(6)(B)(ii)), and under section 
1423(c) of the Safe Drinking Water Act (42 U.S.C. 300h-2(c)). Where 
inconsistencies exist between this section and Secs. 22.1 through 22.32, 
this section shall apply.
    (b) Public notice.--(1) General. Complainant shall notify the public 
before assessing a civil penalty. Such notice shall be provided within 
30 days following proof of service of the complaint on the respondent 
or, in the case of a proceeding proposed to be commenced pursuant to 
Sec. 22.13(b), no less than 40 days before the issuance of an order 
assessing a civil penalty. The notice period begins upon first 
publication of notice.
    (2) Type and content of public notice. The complainant shall provide 
public notice of the complaint (or the proposed consent agreement if 
Sec. 22.13(b) is applicable) by a method reasonably calculated to 
provide notice, and shall also provide notice directly to any person who 
requests such notice. The notice shall include:
    (i) The docket number of the proceeding;
    (ii) The name and address of the complainant and respondent, and the 
person from whom information on the proceeding may be obtained, and the 
address of the Regional Hearing Clerk to whom appropriate comments shall 
be directed;
    (iii) The location of the site or facility from which the violations 
are alleged, and any applicable permit number;
    (iv) A description of the violation alleged and the relief sought; 
and
    (v) A notice that persons shall submit comments to the Regional 
Hearing Clerk, and the deadline for such submissions.
    (c) Comment by a person who is not a party. The following provisions 
apply in regard to comment by a person not a party to a proceeding:
    (1) Participation in proceeding. (i) Any person wishing to 
participate in the proceedings must notify the Regional Hearing Clerk in 
writing within the public notice period under paragraph (b)(1) of this 
section. The person must provide his name, complete mailing address, and 
state that he wishes to participate in the proceeding.
    (ii) The Presiding Officer shall provide notice of any hearing on 
the merits to any person who has met the requirements of paragraph 
(c)(1)(i) of this section at least 20 days prior to the scheduled 
hearing.
    (iii) A commenter may present written comments for the record at any 
time prior to the close of the record.
    (iv) A commenter wishing to present evidence at a hearing on the 
merits shall notify, in writing, the Presiding Officer and the parties 
of its intent at least 10 days prior to the scheduled hearing. This 
notice must include a copy of any document to be introduced, a 
description of the evidence to be presented, and the identity of any 
witness (and qualifications if an expert), and the subject matter of the 
testimony.

[[Page 261]]

    (v) In any hearing on the merits, a commenter may present evidence, 
including direct testimony subject to cross examination by the parties.
    (vi) The Presiding Officer shall have the discretion to establish 
the extent of commenter participation in any other scheduled activity.
    (2) Limitations. A commenter may not cross-examine any witness in 
any hearing and shall not be subject to or participate in any discovery 
or prehearing exchange.
    (3) Quick resolution and settlement. No proceeding subject to the 
public notice and comment provisions of paragraphs (b) and (c) of this 
section may be resolved or settled under Sec. 22.18, or commenced under 
Sec. 22.13(b), until 10 days after the close of the comment period 
provided in paragraph (c)(1) of this section.
    (4) Petition to set aside a consent agreement and proposed final 
order. (i) Complainant shall provide to each commenter, by certified 
mail, return receipt requested, but not to the Regional Hearing Clerk or 
Presiding Officer, a copy of any consent agreement between the parties 
and the proposed final order.
    (ii) Within 30 days of receipt of the consent agreement and proposed 
final order a commenter may petition the Regional Administrator (or, for 
cases commenced at EPA Headquarters, the Environmental Appeals Board), 
to set aside the consent agreement and proposed final order on the basis 
that material evidence was not considered. Copies of the petition shall 
be served on the parties, but shall not be sent to the Regional Hearing 
Clerk or the Presiding Officer.
    (iii) Within 15 days of receipt of a petition, the complainant may, 
with notice to the Regional Administrator or Environmental Appeals Board 
and to the commenter, withdraw the consent agreement and proposed final 
order to consider the matters raised in the petition. If the complainant 
does not give notice of withdrawal within 15 days of receipt of the 
petition, the Regional Administrator or Environmental Appeals Board 
shall assign a Petition Officer to consider and rule on the petition. 
The Petition Officer shall be another Presiding Officer, not otherwise 
involved in the case. Notice of this assignment shall be sent to the 
parties, and to the Presiding Officer.
    (iv) Within 30 days of assignment of the Petition Officer, the 
complainant shall present to the Petition Officer a copy of the 
complaint and a written response to the petition. A copy of the response 
shall be provided to the parties and to the commenter, but not to the 
Regional Hearing Clerk or Presiding Officer.
    (v) The Petition Officer shall review the petition, and 
complainant's response, and shall file with the Regional Hearing Clerk, 
with copies to the parties, the commenter, and the Presiding Officer, 
written findings as to:
    (A) The extent to which the petition states an issue relevant and 
material to the issuance of the proposed final order;
    (B) Whether complainant adequately considered and responded to the 
petition; and
    (C) Whether a resolution of the proceeding by the parties is 
appropriate without a hearing.
    (vi) Upon a finding by the Petition Officer that a hearing is 
appropriate, the Presiding Officer shall order that the consent 
agreement and proposed final order be set aside and shall establish a 
schedule for a hearing.
    (vii) Upon a finding by the Petition Officer that a resolution of 
the proceeding without a hearing is appropriate, the Petition Officer 
shall issue an order denying the petition and stating reasons for the 
denial. The Petition Officer shall:
    (A) File the order with the Regional Hearing Clerk;
    (B) Serve copies of the order on the parties and the commenter; and
    (C) Provide public notice of the order.
    (viii) Upon a finding by the Petition Officer that a resolution of 
the proceeding without a hearing is appropriate, the Regional 
Administrator may issue the proposed final order, which shall become 
final 30 days after both the order denying the petition and a properly 
signed consent agreement are filed with the Regional Hearing Clerk, 
unless further petition for review is filed by a notice of appeal in the 
appropriate United States District

[[Page 262]]

Court, with coincident notice by certified mail to the Administrator and 
the Attorney General. Written notice of appeal also shall be filed with 
the Regional Hearing Clerk, and sent to the Presiding Officer and the 
parties.
    (ix) If judicial review of the final order is denied, the final 
order shall become effective 30 days after such denial has been filed 
with the Regional Hearing Clerk.



Secs. 22.46-22.49  [Reserved]



Subpart I--Administrative Proceedings Not Governed by Section 554 of the 
                      Administrative Procedure Act



Sec. 22.50  Scope of this subpart.

    (a) Scope. This subpart applies to all adjudicatory proceedings for:
    (1) The assessment of a penalty under sections 309(g)(2)(A) and 
311(b)(6)(B)(i) of the Clean Water Act (33 U.S.C. 1319(g)(2)(A) and 
1321(b)(6)(B)(i)).
    (2) The assessment of a penalty under sections 1414(g)(3)(B) and 
1423(c) of the Safe Drinking Water Act (42 U.S.C. 300g-3(g)(3)(B) and 
300h-2(c)), except where a respondent in a proceeding under section 
1414(g)(3)(B) requests in its answer a hearing on the record in 
accordance with section 554 of the Administrative Procedure Act, 5 
U.S.C. 554.
    (b) Relationship to other provisions. Sections 22.1 through 22.45 
apply to proceedings under this subpart, except for the following 
provisions which do not apply: Secs. 22.11, 22.16(c), 22.21(a), and 
22.29. Where inconsistencies exist between this subpart and subparts A 
through G of this part, this subpart shall apply. Where inconsistencies 
exist between this subpart and subpart H of this part, subpart H shall 
apply.



Sec. 22.51  Presiding Officer.

    The Presiding Officer shall be a Regional Judicial Officer. The 
Presiding Officer shall conduct the hearing, and rule on all motions 
until an initial decision has become final or has been appealed.



Sec. 22.52  Information exchange and discovery.

    Respondent's information exchange pursuant to Sec. 22.19(a) shall 
include information on any economic benefit resulting from any activity 
or failure to act which is alleged in the administrative complaint to be 
a violation of applicable law, including its gross revenues, delayed or 
avoided costs. Discovery under Sec. 22.19(e) shall not be authorized, 
except for discovery of information concerning respondent's economic 
benefit from alleged violations and information concerning respondent's 
ability to pay a penalty.



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.

[[Page 263]]



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.



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

[[Page 264]]

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 Secs. 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 (2311), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
    (b) If the General Counsel receives two or more petitions filed in 
two or more United States Courts of Appeals for review of any Agency 
action within ten days of the effective date of that action for purposes 
of judicial review (as specified under Secs. 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.

[[Page 265]]

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]



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

[[Page 266]]

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 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

[[Page 267]]

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 
Secs. 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 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

[[Page 268]]

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.



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

[[Page 269]]

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 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.

[[Page 270]]



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 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

[[Page 271]]

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 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

[[Page 272]]

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.



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).

[[Page 273]]

    (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 
Secs. 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 Secs. 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 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

[[Page 274]]

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;
    (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.

[[Page 275]]



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 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

[[Page 276]]

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 Secs. 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 
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

[[Page 277]]

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 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

[[Page 278]]

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.
    (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

[[Page 279]]

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; 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

[[Page 280]]

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 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

[[Page 281]]

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, Secs. 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 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.

[[Page 282]]



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.
26.104-26.106  [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 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,

[[Page 283]]

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 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

[[Page 284]]

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 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

[[Page 285]]

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 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

[[Page 286]]

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]



Secs. 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 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

[[Page 287]]

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 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

[[Page 288]]

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 
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.

[[Page 289]]



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 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

[[Page 290]]

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
    (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

[[Page 291]]

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 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.

[[Page 292]]



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 paragraph (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.



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.

[[Page 293]]

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  Stay 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. 3801-3812; Pub. L. 101-410, 104 Stat. 890, 28 
U.S.C. 2461 note; Pub. L. 104-134, 110 Stat. 1321, 31 U.S.C. 3701 note.

    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
    (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.

[[Page 294]]

    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 Office of the Hearing Clerk (1900), United 
States Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
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, 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--

[[Page 295]]

    (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 $5,500 1 for each such claim.
---------------------------------------------------------------------------

    \1\ As adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890), as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134, 
110 Stat. 1321).
---------------------------------------------------------------------------

    (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, factitious, or 
fraudulent; or
    (B) Is false, factitious, 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 $5,500 
2 for each such statement.
---------------------------------------------------------------------------

    \2\ As adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890), as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134, 
110 Stat. 1321).
---------------------------------------------------------------------------

    (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.

[53 FR 15182, Apr. 27, 1988, as amended at 61 FR 69366, Dec. 31, 1996]



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;

[[Page 296]]

    (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.



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

[[Page 297]]

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 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.

[[Page 298]]

    (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 (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.

[[Page 299]]



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;
    (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

[[Page 300]]

    (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) 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

[[Page 301]]

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 Secs. 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, 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

[[Page 302]]

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.



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

[[Page 303]]

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 request for admission, the presiding officer may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;

[[Page 304]]

    (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;
    (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

[[Page 305]]

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 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.

[[Page 306]]

    (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]



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

[[Page 307]]

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 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.

[[Page 308]]

    (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 Secs. 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, 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

[[Page 309]]

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 Secs. 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.



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

[[Page 310]]

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 311]]



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 312]]

    (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 313]]

    (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 314]]



            SUBCHAPTER B--GRANTS AND OTHER FEDERAL ASSISTANCE






PART 30--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR 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, 1857 et seq., 6901 et seq., 7401 et seq., 9601 et seq.; OMB Circular 
A-110 (64 FR 54926, October 8, 1999).

    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 Secs. 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 315]]



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

[[Page 316]]

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

[[Page 317]]

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

[[Page 318]]

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 319]]

    (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 320]]

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 321]]

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 323]]

    (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

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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 
Secs. 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 326]]

    (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

[[Page 327]]

other non-profit organizations (including hospitals) shall be subject to 
the audit requirements contained in the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States, 
Local Governments, and Non-Profit Organizations.''
    (c) For-profit hospitals not covered by the audit provisions of 
revised OMB Circular A-133 shall be subject to the audit requirements of 
the Federal awarding agencies.
    (d) Commercial organizations shall be subject to the audit 
requirements of EPA or the prime recipient as incorporated into the 
award document.

[61 FR 6067, Feb. 15, 1996, as amended at 62 FR 45939, 45944, Aug. 29, 
1997]



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 Secs. 30.31 through 30.37.

[[Page 328]]



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 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

[[Page 329]]

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 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.

[[Page 330]]

    (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 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

[[Page 331]]

private companies charge for equivalent services, unless specifically 
authorized by Federal statute as long as the Federal Government retains 
an interest in the supplies.



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) The Federal Government has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d)(1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that were used by the Federal Government in 
developing an agency action that has the force and effect of law, the 
EPA shall request, and the recipient shall provide, within a reasonable 
time, the research data so that they can be made available to the public 
through the procedures established under the FOIA. If the EPA obtains 
the research data solely in response to a FOIA request, the agency may 
charge the requester a reasonable fee equaling the full incremental cost 
of obtaining the research data. This fee should reflect costs incurred 
by the agency, the recipient, and applicable subrecipients. This fee is 
in addition to any fees the agency may assess under the FOIA (5 U.S.C. 
552(a)(4)(A)).
    (2) The following definitions apply for purposes of this paragraph 
(d):
    (i) Research data is defined as the recorded factual material 
commonly accepted in the scientific community as necessary to validate 
research findings, but not any of the following: preliminary analyses, 
drafts of scientific papers, plans for future research, peer reviews, or 
communications with colleagues. This ``recorded'' material excludes 
physical objects (e.g., laboratory samples). Research data also do not 
include:
    (A) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (B) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    (ii) Published is defined as either when:
    (A) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (B) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.
    (iii) Used by the Federal Government in developing an agency action 
that has the force and effect of law is defined as when an agency 
publicly and officially cites the research findings in support of an 
agency action that has the force and effect of law.
    (e) 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).

[61 FR 6067, Feb. 15, 1996, as amended at 65 FR 14407, 14417, Mar. 16, 
2000]



Sec. 30.37  Property trust relationship.

    Real property, equipment, intangible property and debt instruments 
that are acquired or improved with Federal

[[Page 332]]

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 
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.

[[Page 333]]



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-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

[[Page 334]]

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 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,

[[Page 335]]

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 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.

[[Page 336]]

    (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.
    (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

[[Page 337]]

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 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

[[Page 338]]

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 section.
    (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

[[Page 339]]

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 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 Secs. 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 Secs. 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

[[Page 340]]

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 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,

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``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.
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.
31.38  Indian Self Determination Act.

              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--Entitlement [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

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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, 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

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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 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

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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 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

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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), 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.
    (2) [Reserved]
    (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]

[[Page 346]]



                    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 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

[[Page 347]]

    (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--
    (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

[[Page 348]]

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 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)

[[Page 349]]

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
    (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.

[[Page 350]]

    (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 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:

[[Page 351]]

    (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 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

[[Page 352]]

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 Secs. 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 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

[[Page 353]]

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 Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, 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 Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. 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.

[53 FR 8075, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45944, Aug. 
29, 1997]

                    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 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).

[[Page 354]]

    (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 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

[[Page 355]]

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 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

[[Page 356]]

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.



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

[[Page 357]]

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, the standards identified in this section, and if 
applicable, Sec. 31.38.
    (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 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.

[[Page 358]]

    (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, 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.

[[Page 359]]

    (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, 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

[[Page 360]]

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;
    (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;

[[Page 361]]

    (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 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

[[Page 362]]

    (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.
    (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

[[Page 363]]

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 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

[[Page 364]]

    (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; 66 FR 3794, Jan. 16, 2001]



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.



Sec. 31.38  Indian Self Determination Act.

    Any contract, subcontract, or subgrant awarded under an EPA grant by 
an Indian Tribe or Indian Intertribal Consortium shall require to the 
extent feasible:
    (a) Preferences and opportunities for training and employment in 
connection with the administration of such contracts or grants shall be 
given to Indians as defined in the Indian Self Determination Act (25 
U.S.C. 450b); and
    (b) Preference in the award of subcontracts and subgrants in 
connection with the administration of such contracts or grants shall be 
given to Indian organizations and to Indian-owned economic enterprises 
as defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 
77) [25 U.S.C. 1452].

[66 FR 3794, Jan. 19, 2001]

              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 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

[[Page 365]]

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, 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

[[Page 366]]

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.
    (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

[[Page 367]]

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 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

[[Page 368]]

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
    (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

[[Page 369]]

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, as 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 which 
it is accountable and request disposition instructions from the Federal 
agency of property no longer needed.

[[Page 370]]

    (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 Secs. 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.
    (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.

[[Page 371]]

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 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.

[[Page 372]]

    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
    (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

[[Page 373]]

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, 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

[[Page 374]]

    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:
    (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

[[Page 375]]

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 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

[[Page 376]]

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 377]]




  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 
          Transactions
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.

    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:
    (1) Prescribing the programs and activities that are covered by the 
governmentwide system;

[[Page 378]]

    (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 379]]

    Conviction. A judgment of 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.
    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 management or supervisory 
responsibilities; or a person who has a critical influence on or 
substantive control

[[Page 380]]

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.
    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; 62 FR 47149, Sept. 8, 1997]



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 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.

[[Page 381]]

    (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 agency as the lead agency for making the decision. 
Agencies are encouraged to establish methods and procedures for 
coordinating their debarment or suspension actions.

[[Page 382]]

    (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 exception shall notify the EPA Debarring Official of 
the exception as soon, before or after granting the exception,

[[Page 383]]

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 Secs. 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 
Secs. 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 directly affects the 
present responsibility of a person.

[[Page 384]]

    (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 Secs. 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 Secs. 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 an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents.

[[Page 385]]

    (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 386]]



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 
Secs. 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 Secs. 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 387]]

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 Director, Office of 
Grants and Debarment (OGD Director), to review the findings of the 
Debarring Official by filing a request with the OGD Director 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 
OGD Director. 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 OGD Director affirms the debarment.
    (c) The review shall be based solely upon the record. The OGD 
Director 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 OGD Director'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; 62 
FR 47149, Sept. 8, 1997]



                          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 Secs. 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 
Secs. 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 388]]

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 389]]

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 Secs. 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 Director, Office of 
Grants and Debarment (OGD Director), to review the findings of the 
suspending official by filing a request with the OGD Director 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 
OGD Director. 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 
OGD Director affirms the suspension.
    (c) The review shall be based solely upon the record. The OGD 
Director 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 OGD Director'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; 62 
FR 47149, Sept. 8, 1997]



       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 390]]

    (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 391]]

    (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 392]]



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 393]]

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 394]]

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 395]]

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,

[[Page 396]]

declared ineligible, or voluntarily excluded 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 397]]

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 [ballot] 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

[[Page 398]]

contract, grant, loan, or cooperative 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.

[[Page 399]]

    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 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 400]]



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 401]]

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 402]]

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 403]]

$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 404]]

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 405]]

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 406]]

        Appendix B to Part 34--Disclosure Form to Report Lobbying



[[Page 407]]





[[Page 408]]





[[Page 409]]





PART 35--STATE AND LOCAL ASSISTANCE--Table of Contents




Sec.
35.001  Applicability.

                 Subpart A--Environmental Program Grants

                                 General

35.100  Purpose of the subpart.
35.101  Environmental programs covered by the subpart.
35.102  Definitions of terms.

                        Preparing an Application

35.104  Components of a complete application.
35.105  Time frame for submitting an application.
35.107  Work plans.
35.108  Funding period.
35.109  Consolidated grants.

                        EPA Action on Application

35.110  Time frame for EPA action.
35.111  Criteria for approving an application.
35.112  Factors considered in determining award amount.
35.113  Reimbursement for pre-award costs.

                         Post-Award Requirements

35.114  Amendments and other changes.
35.115  Evaluation of performance.
35.116  Direct implementation.
35.117  Unused funds.
35.118  Unexpended balances.

                     Performance Partnership Grants

35.130  Purpose of Performance Partnership Grants.
35.132  Requirements summary.
35.133  Programs eligible for inclusion.
35.134  Eligible recipients.
35.135  Activities eligible for funding.
35.136  Cost share requirements.
35.137  Application requirements.
35.138  Competitive grants.

                   Air Pollution Control (Section 105)

35.140  Purpose.
35.141  Definitions.
35.143  Allotment.
35.145  Maximum federal share.
35.146  Maintenance of effort.
35.147  Minimum cost share for a Performance Partnership Grant.
35.148  Award limitations.

                  Water Pollution Control (Section 106)

35.160  Purpose.
35.161  Definition.
35.162  Basis for allotment.
35.165  Maintenance of effort.
35.168  Award limitations.

            Public Water System Supervision (Section 1443(a))

35.170  Purpose.
35.172  Allotment.
35.175  Maximum federal share.
35.178  Award limitations.

          Underground Water Source Protection (Section 1443(b))

35.190  Purpose.
35.192  Basis for allotment.
35.195  Maximum federal share.
35.198  Award limitation.

              Hazardous Waste Management (Section 3011(a))

35.210  Purpose.
35.212  Basis for allotment.
35.215  Maximum federal share.
35.218  Award limitation.

          Pesticide Cooperative Enforcement (Section 23(a)(1))

35.230  Purpose.
35.232  Basis for allotment.
35.235  Maximum federal share.

   Pesticide Applicator Certification and Training (Section 23(a)(2))

35.240  Purpose.
35.242  Basis for allotment.
35.245  Maximum federal share.

           Pesticide Program Implementation (Section 23(a)(1))

35.250  Purpose.
35.251  Basis for allotment.
35.252  Maximum federal share.

               Nonpoint Source Management (Section 319(h))

35.260  Purpose.
35.265  Maximum federal share.
35.266  Maintenance of effort.
35.268  Award limitations.

                Lead-Based Paint Program (Section 404(g))

35.270  Purpose.
35.272  Funding coordination.

                 State Indoor Radon Grants (Section 306)

35.290  Purpose.
35.292  Basis for allotment.
35.295  Maximum federal share.
35.298  Award limitations.

          Toxic Substances Compliance Monitoring (Section 28 )

35.310  Purpose.
35.312  Competitive process.
35.315  Maximum federal share.
35.318  Award limitation.

[[Page 410]]

          State Underground Storage Tanks (Section 2007(f)(2))

35.330  Purpose.
35.332  Basis for allotment.
35.335  Maximum federal share.

            Pollution Prevention State Grants (Section 6605)

35.340  Purpose.
35.342  Competitive process.
35.343  Definitions.
35.345  Eligible applicants.
35.348  Award limitation.
35.349  Maximum federal share.

        Water Quality Cooperative Agreements (Section 104(b)(3))

35.360  Purpose.
35.362  Competitive process.
35.364  Maximum federal share.

          State Wetlands Development Grants (Section 104(b)(3))

35.380  Purpose.
35.382  Competitive process.
35.385  Maximum federal share.

                  State Administration (Section 205(g))

35.400  Purpose.
35.402  Allotment.
35.405  Maintenance of effort.
35.408  Award limitations.

      Water Quality Management Planning Grants (Section 205(j)(2))

35.410  Purpose.
35.412  Allotment.
35.415  Maximum federal share.
35.418  Award limitations.

           Subpart B--Environmental Program Grants for Tribes

                           General--All Grants

35.500  Purpose of the subpart.
35.501  Environmental programs covered by the subpart.
35.502  Definitions of terms.
35.503  Deviation from this subpart.
35.504  Eligibility of an Intertribal Consortium.

                        Preparing an Application

35.505  Components of a complete application.
35.506  Time frame for submitting an application.
35.507  Work plans.
35.508  Funding period.
35.509  Consolidated grants.

                        EPA Action on Application

35.510  Time frame for EPA action.
35.511  Criteria for approving an application.
35.512  Factors considered in determining award amount.
35.513  Reimbursement for pre-award costs.

                         Post-award Requirements

35.514  Amendments and other changes.
35.515  Evaluation of performance.
35.516  Direct implementation.
35.517  Unused funds.
35.518  Unexpended balances.

                     Performance Partnership Grants

35.530  Purpose of Performance Partnership Grants.
35.532  Requirements summary.
35.533  Programs eligible for inclusion.
35.534  Eligible recipients.
35.535  Activities eligible for funding.
35.536  Cost share requirements.
35.537  Application requirements.
35.538  Project period.

          Indian Environmental General Assistance Program (GAP)

35.540  Purpose.
35.542  Definitions. [Reserved]
35.543  Eligible recipients.
35.545  Eligible activities.
35.548  Award limitation.

                   Air Pollution Control (Section 105)

35.570  Purpose.
35.572  Definitions.
35.573  Eligible Tribe.
35.575  Maximum federal share.
35.576  Maintenance of effort.
35.578  Award limitation.

             Water Pollution Control (Sections 106 and 518)

35.580  Purpose.
35.582  Definitions.
35.583  Eligible recipients.
35.585  Maximum federal share.
35.588  Award limitations.

        Water Quality Cooperative Agreements (Section 104(b)(3))

35.600  Purpose.
35.603  Competitive process.
35.604  Maximum federal share.

         Wetlands Development Grant Program (Section 104(b)(3))

35.610  Purpose.
35.613  Competitive process.
35.615  Maximum federal share.

     Nonpoint Source Management Grants (Sections 319(h) and 518(f))

35.630  Purpose.
35.632  Definition.
35.633  Eligibility requirements.
35.635  Maximum federal share.
35.636  Maintenance of effort.

[[Page 411]]

35.638  Award limitations.

          Pesticide Cooperative Enforcement (Section 23 (a)(1))

35.640  Purpose.
35.641  Eligible recipients.
35.642  Maximum federal share.
35.645  Basis for allotment.

   Pesticide Applicator Certification and Training (Section 23(a)(2))

35.646  Purpose.
35.649  Maximum federal share.

           Pesticide Program Implementation (Section 23(a)(1))

35.650  Purpose.
35.653  Eligible recipients.
35.655  Basis for allotment.
35.659  Maximum federal share.

               Pollution Prevention Grants (Section 6605)

35.660  Purpose.
35.661  Competitive process.
35.662  Definitions.
35.663  Eligible recipients.
35.668  Award limitations.
35.669  Maximum federal share.

       Public Water System Supervision (Sections 1443(a) and 1451)

35.670  Purpose.
35.672  Definition.
35.673  Annual amount reserved by EPA.
35.675  Maximum federal share.
35.676  Eligible recipients.
35.678  Award limitations.

          Underground Water Source Protection (Section 1443(b))

35.680  Purpose.
35.682  Definition.
35.683  Annual amount reserved by EPA.
35.685  Maximum federal share.
35.686  Eligible recipients
35.688  Award limitations.

                Lead-Based Paint Program (Section 404(g))

35.690  Purpose.
35.691  Funding coordination.
35.693  Eligible recipients.

                    Indoor Radon Grants (Section 306)

35.700  Purpose.
35.702  Basis for allotment.
35.703  Eligible recipients.
35.705  Maximum federal share.
35.708  Award limitations.

           Toxic Substances Compliance Monitoring (Section 28)

35.710  Purpose.
35.712  Competitive process.
35.713  Eligible recipients.
35.715  Maximum federal share.
35.718  Award limitation.

        Hazardous Waste Management Program Grants (P.L. 105-276)

35.720  Purpose.
35.723  Competitive process.
35.725  Maximum federal share.

         Underground Storage Tanks Program Grants (P.L. 105-276)

35.730  Purpose.
35.731  Eligible recipients.
35.732  Basis for allotment.
35.735  Maximum federal share.

Subparts C-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.
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.

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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).
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.

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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.

Appendix A to Subpart E--Cost-Effectiveness Analysis Guidelines
Appendix B to Subpart E--Federal Guidelines--User Charges For Operation 
          and Maintenance of Publicly Owned Treatment Works
Appendix C-1 to Subpart E--Required Provisions--Consulting Engineering 
          Agreements
Appendix C-2 to Subpart E--Required Provisions--Construction Contracts
Appendix D to Subpart E--EPA Transition Policy--Existing Consulting 
          Engineering Agreements
Appendix E to Subpart 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.
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.

[[Page 414]]

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--Drinking Water State Revolving Funds

35.3500  Purpose, policy, and applicability.
35.3505  Definitions.
35.3510  Establishment of the DWSRF program.
35.3515  Allotment and withholdings of funds.
35.3520  Systems, projects, and project-related costs eligible for 
          assistance from the Fund.
35.3525  Authorized types of assistance from the Fund.
35.3530  Limitations on uses of the Fund.
35.3535  Authorized set-aside activities.
35.3540  Requirements for funding set-aside activities.
35.3545  Capitalization grant agreement.
35.3550  Specific capitalization grant agreement requirements.
35.3555  Intended Use Plan (IUP).
35.3560  General payment and cash draw rules.
35.3565  Specific cash draw rules for authorized types of assistance 
          from the Fund.
35.3570  Reports and audits.
35.3575  Application of Federal cross-cutting authorities (cross-
          cutters).
35.3580  Environmental review requirements.
35.3585  Compliance assurance procedures.

Appendix A to Subpart L--Criteria for Evaluating a State's Proposed 
          NEPA-Like Process.

               Subpart M--Grants for Technical Assistance

                                 General

35.4000  Authority.
35.4005  What is a Technical Assistance Grant?
35.4010  What does this subpart do?
35.4011  Do the general grant regulations for nonprofit organizations 
          apply to TAGs?
35.4012  If there appears to be a difference between the requirements in 
          40 CFR part 30

[[Page 415]]

          and this subpart, which regulations should my group follow?
35.4015  Do certain words in this subpart have specific meaning?

                            Who Is Eligible?

35.4020  Is my community group eligible for a TAG?
35.4025  Is there any way my group can get a TAG if it is currently 
          ineligible?
35.4030  Can I be a part of a TAG group if I belong to an ineligible 
          group?
35.4035  Does EPA use the same eligibility criteria for TAGs at 
          ``Federal facility'' sites?
35.4040  How many groups can receive a TAG at one Superfund site?

                Your Responsibilities as a TAG Recipient

35.4045  What requirements must my group meet as a TAG recipient?
35.4050  Must my group contribute toward the cost of a TAG?
35.4055  What if my group can't come up with the ``matching funds?''

                       How Much Money TAGs Provide

35.4060  How much money can my group receive through a TAG?
35.4065  How can my group get more than $50,000?

                          What TAGs Can Pay for

35.4070  How can my group spend TAG money?
35.4075  Are there things my group can't spend TAG money for?

                          How You Get the Money

35.4080  Does my group get a lump sum up front, or does EPA reimburse us 
          for costs we incur?
35.4085  Can my group get an ``advance payment'' to help us get started?
35.4090  If my group is eligible for an advance payment, how do we get 
          our funds?
35.4095  What can my group pay for with an advance payment?
35.4100  Can my group incur any costs prior to the award of our grant?

                         How to Apply for a TAG

35.4105  What is the first step for getting a TAG?
35.4106  What information should an LOI include?
35.4110  What does EPA do once it receives the first LOI from a group?
35.4115  After the public notice that EPA has received an LOI, how much 
          time does my group have to form a coalition or submit a 
          separate LOI?
35.4120  What does my group do next?
35.4125  What else does my group need to do?
35.4130  What must be included in my group's budget?
35.4135  What period of time should my group's budget cover?
35.4140  What must be included in my group's work plan?
35.4145  How much time do my group or other interested groups have to 
          submit a TAG application to EPA?
35.4150  What happens after my group submits its application to EPA?
35.4155  How does EPA decide whether to award a TAG to our group?
35.4160  What does EPA do if more than one group applies for a TAG at 
          the same site?
35.4161  Does the TAG application process affect the schedule for work 
          at my site?
35.4165  When does EPA award a TAG?

                            Managing Your TAG

35.4170  What kinds of reporting does EPA require?
35.4175  What other reporting and record keeping requirements are there?
35.4180  Must my group keep financial records after we finish our TAG?
35.4185  What does my group do with reports our technical advisor 
          prepares for us?

    Procuring a Technical Advisor or Other Contractor With TAG Funds

35.4190  How does my group identify a qualified technical advisor?
35.4195  Are there certain people my group cannot select to be our 
          technical advisor, grant administrator, or other contractor 
          under the grant?
35.4200  What restrictions apply to contractors my group procures for 
          our TAG?
35.4205  How does my group procure a technical advisor or any other 
          contractor?
35.4210  Must my group solicit and document bids for our procurements?
35.4215  What if my group can't find an adequate number of potential 
          sources for a technical advisor or other contractor?
35.4220  How does my group ensure a prospective contractor does not have 
          a conflict of interest?
35.4225  What if my group decides a prospective contractor has a 
          conflict of interest?
35.4230  What are my group's contractual responsibilities once we 
          procure a contractor?
35.4235  Are there specific provisions my group's contract(s) must 
          contain?

                    Requirements for TAG Contractors

35.4240  What provisions must my group's TAG contractor comply with if 
          it subcontracts?

              Grant Disputes, Termination, and Enforcement

35.4245  How does my group resolve a disagreement with EPA regarding our 
          TAG?
35.4250  Under what circumstances would EPA terminate my group's TAG?

[[Page 416]]

35.4255  Can my group terminate our TAG?
35.4260  What other steps might EPA take if my group fails to comply 
          with the terms and conditions of our award?

                            Closing Out a TAG

35.4265  How does my group close out our TAG?

                      Other Things You Need to Know

35.4270  Definitions.
35.4275  Where can my group get the documents this subpart references 
          (for example, OMB circulars, other subparts, forms)?

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.

[[Page 417]]

         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.
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.

    Authority: 42 U.S.C. 4368b, unless otherwise noted.



Sec. 35.001  Applicability.

    This part codifies policies and procedures for financial assistance 
awarded by the Environmental Protection Agency (EPA) to State, 
interstate, and local agencies, Indian Tribes and Intertribal Consortia 
for pollution abatement and control programs. These provisions 
supplement the EPA general assistance regulations in 40 CFR part 31.

[66 FR 1734, Jan. 9, 2001]



                 Subpart A--Environmental Program Grants

    Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; 42 U.S.C. 
300f et seq.; 42 U.S.C. 6901 et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C. 
2601 et seq.; 42 U.S.C. 13101 et seq.; Pub. L. 104-134, 110 Stat. 1321, 
1321-299 (1996); Pub. L. 105-65, 111 Stat. 1344, 1373 (1997).

    Source: 66 FR 1734, Jan. 9, 2001, unless otherwise noted.

                                 General



Sec. 35.100  Purpose of the subpart.

    This subpart establishes administrative requirements for all grants 
awarded to State, interstate, and local agencies and other entities for 
the environmental programs listed in Sec. 35.101. This subpart 
supplements requirements in EPA's general grant regulations found at 40 
CFR parts 30 and 31. Sections 35.100--35.118 contain administrative 
requirements that apply to all environmental program grants included in 
this subpart. Sections 35.130-35.418 contain requirements that apply to 
specified environmental program grants. Many of these environmental 
programs also have programmatic and technical requirements that are 
published elsewhere in the Code of Federal Regulations.

[[Page 418]]



Sec. 35.101  Environmental programs covered by the subpart.

    (a) The requirements in this subpart apply to all grants awarded for 
the following programs:
    (1) Performance partnership grants (Omnibus Consolidated Rescissions 
and Appropriations Act of 1996, Pub. Law 104-134, 110 Stat. 1321, 1321-
299 (1996) and Departments of Veterans Affairs and Housing and Urban 
Development, and Independent Agencies Appropriations Act, 1998, Pub. Law 
105-65, 111 Stat. 1344, 1373 (1997)).
    (2) Air pollution control (section 105 of the Clean Air Act).
    (3) Water pollution control (section 106 of the Clean Water Act).
    (4) Public water system supervision (section 1443(a) of the Safe 
Drinking Water Act).
    (5) Underground water source protection (section 1443(b) of the Safe 
Drinking Water Act).
    (6) Hazardous waste management (section 3011(a) of the Solid Waste 
Disposal Act).
    (7) Pesticide cooperative enforcement (section 23(a)(1) of the 
Federal Insecticide, Fungicide, and Rodenticide Act).
    (8) Pesticide applicator certification and training (section 
23(a)(2) of the Federal Insecticide, Fungicide, and Rodenticide Act).
    (9) Pesticide program implementation (section 23(a)(1) of the 
Federal Insecticide, Fungicide, and Rodenticide Act).
    (10) Nonpoint source management (sections 205(j)(5) and 319(h) of 
the Clean Water Act).
    (11) Lead-based paint program (section 404(g) of the Toxic 
Substances Control Act).
    (12) State indoor radon grants (section 306 of the Toxic Substances 
Control Act).
    (13) Toxic substances compliance monitoring (section 28 of the Toxic 
Substances Control Act).
    (14) State underground storage tanks (section 2007(f)(2) of the 
Solid Waste Disposal Act).
    (15) Pollution prevention state grants (section 6605 of the 
Pollution Prevention Act of 1990).
    (16) Water quality cooperative agreements (section 104(b)(3) of the 
Clean Water Act).
    (17) Wetlands development grants program (section 104(b)(3) of the 
Clean Water Act).
    (18) State administration of construction grant, permit, and 
planning programs (section 205(g) of the Clean Water Act).
    (19) Water quality management planning (section 205(j)(2) of the 
Clean Water Act).
    (b) Unless otherwise prohibited by statute or regulation, the 
requirements in Sec. 35.100 through Sec. 35.118 of this subpart also 
apply to grants under environmental programs established after this 
subpart becomes effective if specified in Agency guidance for such 
programs.
    (c) In the event a grant is awarded from EPA headquarters for one of 
the programs listed in paragraph (a) of this section, this subpart shall 
apply and the term ``Regional Administrator'' shall mean ``Assistant 
Administrator'.



Sec. 35.102  Definitions of terms.

    Terms are defined as follows when they are used in this subpart.
    Allotment. EPA's calculation of the funds that may be available to 
an eligible recipient for an environmental program grant. An allotment 
is not an entitlement.
    Consolidated grant. A single grant made to a recipient consolidating 
funds from more than one environmental grant program. After the award is 
made, recipients must account for grant funds in accordance with the 
funds' original environmental program sources. Consolidated grants are 
not Performance Partnership Grants.
    Environmental program. A program for which EPA awards grants under 
the authorities listed in Sec. 35.101. The grants are subject to the 
requirements of this subpart.
    Funding period. The period of time specified in the grant agreement 
during which the recipient may expend or obligate funds for the purposes 
set forth in the agreement.
    National program guidance. Guidance issued by EPA's National Program 
Managers for establishing and maintaining effective environmental 
programs. This guidance establishes national goals, objectives, and 
priorities

[[Page 419]]

as well as the core performance measures and other information to be 
used in monitoring progress. The guidance may also set out specific 
environmental strategies, criteria for evaluating programs, and other 
elements of program implementation.
    Outcome. The environmental result, effect, or consequence that will 
occur from carrying out an environmental program or activity that is 
related to an environmental or programmatic goal or objective. Outcomes 
must be quantitative, and they may not necessarily be achievable during 
a grant funding period. See ``output.''
    Output. An environmental activity or effort and associated work 
products related to an environmental goal or objective that will be 
produced or provided over a period of time or by a specified date. 
Outputs may be quantitative or qualitative but must be measurable during 
a grant funding period. See ``outcome.''
    Performance Partnership Agreement. A negotiated agreement signed by 
the EPA Regional Administrator and an appropriate official of a State 
agency and designated as a Performance Partnership Agreement. Such 
agreements typically set out jointly developed goals, objectives, and 
priorities; the strategies to be used in meeting them; the roles and 
responsibilities of the State and EPA; and the measures to be used in 
assessing progress. A Performance Partnership Agreement may be used as 
all or part of a work plan for a grant if it meets the requirements for 
a work plan set out in Sec. 35.107.
    Performance Partnership Grant. A single grant combining funds from 
more than one environmental program. A Performance Partnership Grant may 
provide for administrative savings or programmatic flexibility to direct 
grant resources where they are most needed to address public health and 
environmental priorities (see also Sec. 35.130). Each Performance 
Partnership Grant has a single, integrated budget and recipients do not 
need to account for grant funds in accordance with the funds' original 
environmental program sources.
    Planning target. The amount of funds that the Regional Administrator 
suggests a grant applicant consider in developing its application, 
including the work plan, for an environmental program.
    Regional supplemental guidance. Guidance to environmental program 
applicants prepared by the Regional Administrator, based on the national 
program guidance and specific regional and applicant circumstances, for 
use in preparing a grant application.
    Work plan commitments. The outputs and outcomes associated with each 
work plan component, as established in the grant agreement.
    Work plan component. A negotiated set or group of work plan 
commitments established in the grant agreement. A work plan may have one 
or more work plan components.

                        Preparing an Application



Sec. 35.104  Components of a complete application.

    A complete application for an environmental program must:
    (a) Meet the requirements in 40 CFR part 31, subpart B;
    (b) Include a proposed work plan (Sec. 35.107); and
    (c) Specify the environmental program and the amount of funds 
requested.



Sec. 35.105  Time frame for submitting an application.

    An applicant should submit a complete application to EPA at least 60 
days before the beginning of the proposed funding period.



Sec. 35.107  Work plans.

    (a) Bases for negotiating work plans. The work plan is negotiated 
between the applicant and the Regional Administrator and reflects 
consideration of national, regional, and State environmental and 
programmatic needs and priorities.
    (1) Negotiation considerations. In negotiating the work plan, the 
Regional Administrator and applicant will consider such factors as 
national program guidance; any regional supplemental guidance; goals, 
objectives, and priorities proposed by the applicant; other jointly 
identified needs or priorities; and the planning target.

[[Page 420]]

    (2) National program guidance. If an applicant proposes a work plan 
that differs significantly from the goals and objectives, priorities, or 
core performance measures in the national program guidance associated 
with the proposed activities, the Regional Administrator must consult 
with the appropriate National Program Manager before agreeing to the 
work plan.
    (3) Use of existing guidance. An applicant should base the grant 
application on the national program guidance in place at the time the 
application is being prepared.
    (b) Work plan requirements. (1) The work plan is the basis for the 
management and evaluation of performance under the grant agreement.
    (2) An approvable work plan must specify:
    (i) The work plan components to be funded under the grant;
    (ii) The estimated work years and the estimated funding amounts for 
each work plan component;
    (iii) The work plan commitments for each work plan component and a 
time frame for their accomplishment;
    (iv) A performance evaluation process and reporting schedule in 
accordance with Sec. 35.115 of this subpart; and
    (v) The roles and responsibilities of the recipient and EPA in 
carrying out the work plan commitments.
    (3) The work plan must be consistent with applicable federal 
statutes; regulations; circulars; executive orders; and EPA delegations, 
approvals, or authorizations.
    (c) Performance Partnership Agreement as work plan. An applicant may 
use a Performance Partnership Agreement or a portion of a Performance 
Partnership Agreement as the work plan for an environmental program 
grant if the portions of the Performance Partnership Agreement that 
serve as all or part of the grant work plan:
    (1) Are clearly identified and distinguished from other portions of 
the Performance Partnership Agreement; and
    (2) Meet the requirements in Sec. 35.107(b).



Sec. 35.108  Funding period.

    The Regional Administrator and applicant may negotiate the length of 
the funding period for environmental program grants, subject to 
limitations in appropriations acts.



Sec. 35.109  Consolidated grants.

    (a) Any applicant eligible to receive funds from more than one 
environmental program may submit an application for a consolidated 
grant. For consolidated grants, an applicant prepares a single budget 
and work plan covering all of the environmental programs included in the 
application. The consolidated budget must identify each environmental 
program to be included, the amount of each program's funds, and the 
extent to which each program's funds support each work plan component. 
Recipients of consolidated grants must account for grant funds in 
accordance with the funds' environmental program sources; funds included 
in a consolidated grant from a particular environmental program may be 
used only for that program.
    (b) Insular areas that choose to consolidate environmental program 
grants may be exempted by the Regional Administrator from requirements 
of this subpart in accordance with 48 U.S.C. 1469a.

                        EPA Action on Application



Sec. 35.110  Time frame for EPA action.

    The Regional Administrator will review a complete application and 
either approve, conditionally approve, or disapprove it within 60 days 
of receipt. This period may be extended by mutual agreement between EPA 
and the applicant. The Regional Administrator will award the funds for 
approved or conditionally approved applications when the funds are 
available.



Sec. 35.111  Criteria for approving an application.

    (a) The Regional Administrator may approve an application upon 
determining that:
    (1) The application meets the requirements of this subpart and 40 
CFR part 31;
    (2) The application meets the requirements of all applicable federal 
statutes; regulations; circulars; executive orders; and delegations, 
approvals, or authorizations;

[[Page 421]]

    (3) The proposed work plan complies with the requirements of 
Sec. 35.107; and
    (4) The achievement of the proposed work plan is feasible, 
considering such factors as the applicant's existing circumstances, past 
performance, program authority, organization, resources, and procedures.
    (b) If the Regional Administrator finds the application does not 
satisfy the criteria in paragraph (a) of this section, the Regional 
Administrator may either:
    (1) Conditionally approve the application if only minor changes are 
required, with grant conditions necessary to ensure compliance with the 
criteria, or
    (2) Disapprove the application in writing.



Sec. 35.112  Factors considered in determining award amount.

    (a) After approving an application under Sec. 35.111, the Regional 
Administrator will consider such factors as the applicant's allotment, 
the extent to which the proposed work plan is consistent with EPA 
guidance and mutually agreed upon priorities, and the anticipated cost 
of the work plan relative to the proposed work plan components, to 
determine the amount of funds to be awarded.
    (b) If the Regional Administrator finds the requested level of 
funding is not justified or the work plan does not comply with the 
requirements of Sec. 35.107, the Regional Administrator will attempt to 
negotiate a resolution of the issues with the applicant before 
determining the award amount. The Regional Administrator may determine 
that the award amount will be less than the amount allotted or 
requested.



Sec. 35.113  Reimbursement for pre-award costs.

    (a) Notwithstanding the requirements of 40 CFR 31.23(a) and OMB cost 
principles, EPA may reimburse recipients for pre-award costs incurred 
from the beginning of the funding period established in the grant 
agreement if such costs would have been allowable if incurred after the 
award and the recipients submitted complete grant applications before 
the beginning of the budget period. Such costs must be identified in the 
grant application EPA approves.
    (b) The applicant incurs pre-award costs at its own risk. EPA is 
under no obligation to reimburse such costs unless they are included in 
an approved grant award.

                         Post-Award Requirements



Sec. 35.114  Amendments and other changes.

    The provisions of 40 CFR 31.30 do not apply to environmental program 
grants awarded under this subpart. The following provisions govern 
amendments and other changes to grant work plans and budgets after the 
work plan is negotiated and a grant awarded.
    (a) Changes requiring prior approval. Recipients may make 
significant changes in work plan commitments only after obtaining the 
Regional Administrator's prior written approval. EPA, in consultation 
with the recipient, will document these revisions including budgeted 
amounts associated with the revisions.
    (b) Changes requiring approval. Recipients must request, in writing, 
grant amendments for changes requiring increases in environmental 
program grant amounts and extensions of the funding period. Recipients 
may begin implementing a change before the amendment has been approved 
by EPA, but do so at their own risk. If EPA approves the change, EPA 
will issue a grant amendment. EPA will notify the recipient in writing 
if the change is disapproved.
    (c) Changes not requiring approval. Other than those situations 
described in paragraphs (a) and (b) of this section, recipients do not 
need to obtain approval for changes, including changes in grant work 
plans, budgets, or other components of grant agreements, unless the 
Regional Administrator determines approval requirements should be 
imposed on a specific recipient for a specified period of time.
    (d) OMB cost principles. The Regional Administrator may waive in 
writing approval requirements for specific recipients and costs 
contained in OMB cost principles.
    (e) Changes in consolidated grants. Recipients of consolidated 
grants under

[[Page 422]]

Sec. 35.109 may not transfer funds among environmental programs.
    (f) Subgrants. Subgrantees must request required approvals in 
writing from the recipient and the recipient shall approve or disapprove 
the request in writing. A recipient will not approve any work plan or 
budget revision which is inconsistent with the purpose or terms and 
conditions of the federal grant to the recipient. If the revision 
requested by the subgrantee would result in a significant change to the 
recipient's approved grant which requires EPA approval, the recipient 
will obtain EPA's approval before approving the subgrantee's request.



Sec. 35.115  Evaluation of performance.

    (a) Joint evaluation process. The applicant and the Regional 
Administrator will develop a process for jointly evaluating and 
reporting progress and accomplishments under the work plan. A 
description of the evaluation process and a reporting schedule must be 
included in the work plan (see Sec. 35.107(b)(2)(iv)). The schedule must 
require the recipient to report at least annually and must satisfy the 
requirements for progress reporting under 40 CFR 31.40(b).
    (b) Elements of the evaluation process. The evaluation process must 
provide for:
    (1) A discussion of accomplishments as measured against work plan 
commitments;
    (2) A discussion of the cumulative effectiveness of the work 
performed under all work plan components;
    (3) A discussion of existing and potential problem areas; and
    (4) Suggestions for improvement, including, where feasible, 
schedules for making improvements.
    (c) Resolution of issues. If the joint evaluation reveals that the 
recipient has not made sufficient progress under the work plan, the 
Regional Administrator and the recipient will negotiate a resolution 
that addresses the issues. If the issues cannot be resolved through 
negotiation, the Regional Administrator may take appropriate measures 
under 40 CFR 31.43. The recipient may request review of the Regional 
Administrator's decision under the dispute processes in 40 CFR 31.70.
    (d) Evaluation reports. The Regional Administrator will ensure that 
the required evaluations are performed according to the negotiated 
schedule and that copies of evaluation reports are placed in the 
official files and provided to the recipient.



Sec. 35.116  Direct implementation.

    If funds remain in a State's allotment for an environmental program 
grant either after grants for that environmental program have been made 
or because no grant was made, the Regional Administrator may, subject to 
any limitations contained in appropriation acts, use all or part of the 
funds to support a federal program required by law in the State in the 
absence of an acceptable State program.



Sec. 35.117  Unused funds.

    If funds for an environmental program grant remain in a State's 
allotment either after an initial environmental program grant has been 
made or because no grant was made, and the Regional Administrator does 
not use the funds under Sec. 35.116 of this subpart, the Regional 
Administrator may award the funds to any eligible recipient in the 
region, including the same State or an Indian Tribe or Tribal 
consortium, for the same environmental program or for a Performance 
Partnership Grant, subject to any limitations in appropriation acts.



Sec. 35.118  Unexpended balances.

    Subject to any relevant provisions of law, if a recipient's 
Financial Status Report shows unexpended balances, the Regional 
Administrator will deobligate the unexpended balances and make them 
available, to either the same recipient in the same region or other 
eligible recipients, including Indian Tribes and Tribal Consortia, for 
environmental program grants.

                     Performance Partnership Grants



Sec. 35.130  Purpose of Performance Partnership Grants.

    (a) Purpose of section. Sections 35.130 through 35.138 govern 
Performance Partnership Grants to States and interstate agencies 
authorized in the Omnibus Consolidated Rescissions and

[[Page 423]]

Appropriations Act of 1996, (Pub. L. 104-134; 110 Stat. 1321, 1321-299 
(1996)) and the Departments of Veterans Affairs and Housing and Urban 
Development, and Independent Agencies Appropriations Act, 1998, (Pub. L. 
105-65; 111 Stat. 1344, 1373 (1997)).
    (b) Purpose of program. Performance Partnership Grants enable States 
and interstate agencies to combine funds from more than one 
environmental program grant into a single grant with a single budget. 
Recipients do not need to account for Performance Partnership Grant 
funds in accordance with the funds' original environmental program 
sources; they need only account for total Performance Partnership Grant 
expenditures subject to the requirements of this subpart. The 
Performance Partnership Grant program is designed to:
    (1) Strengthen partnerships between EPA and State and interstate 
agencies through joint planning and priority-setting and better 
deployment of resources;
    (2) Provide State and interstate agencies with flexibility to direct 
resources where they are most needed to address environmental and public 
health priorities;
    (3) Link program activities more effectively with environmental and 
public health goals and program outcomes;
    (4) Foster development and implementation of innovative approaches 
such as pollution prevention, ecosystem management, and community-based 
environmental protection strategies; and
    (5) Provide savings by streamlining administrative requirements.



Sec. 35.132  Requirements summary.

    Applicants and recipients of Performance Partnership Grants must 
meet:
    (a) The requirements in Secs. 35.100 to 35.118, which apply to all 
environmental program grants, including Performance Partnership Grants; 
and
    (b) The requirements in Secs. 35.130 to 35.138, which apply only to 
Performance Partnership Grants.



Sec. 35.133  Programs eligible for inclusion.

    (a) Eligible programs. Except as provided in paragraph (b) of this 
section, the environmental programs eligible, in accordance with 
appropriation acts, for inclusion in a Performance Partnership Grant are 
listed in Sec. 35.101(a)(2) through (17). (Funds available from the 
section 205(g) State Administration Grants program (Sec. 35.100(b)(18)) 
and the Water Quality Management Planning Grant program 
(Sec. 35.100(b)(19)) may not be included in Performance Partnership 
Grants.)
    (b) Changes in eligible programs. The Administrator may, in guidance 
or regulation, describe subsequent additions, deletions, or changes to 
the list of environmental programs eligible for inclusion in Performance 
Partnership Grants.



Sec. 35.134  Eligible recipients.

    (a) Eligible agencies. All State agencies (including environmental, 
health, agriculture, and other agencies) and interstate agencies 
eligible to receive funds from more than one environmental program may 
receive Performance Partnership Grants
    (b) Designated agency. A State agency must be designated by a 
Governor, State legislature, or other authorized State process to 
receive grants under each of the environmental programs to be combined 
in the Performance Partnership Grant. If it is not the designated agency 
for a particular grant program to be included in the Performance 
Partnership Grant, the State agency must have an agreement with the 
State agency that does have the designation regarding how the funds will 
be shared between the agencies.
    (c) Programmatic requirements. In order to include funds from an 
environmental program grant listed in Sec. 35.101 of this subpart in a 
Performance Partnership Grant, applicants must meet the requirements for 
award of each of the environmental programs from which funds are 
combined in the agency's Performance Partnership Grant, except the 
requirements at Secs. 35.268(b) and (c), 35.272, and 35.298 (c), (d), 
(e), and (g). These requirements can be found in this regulation 
beginning at Sec. 35.140.



Sec. 35.135  Activities eligible for funding.

    (a) A recipient may use a Performance Partnership Grant, subject to 
the

[[Page 424]]

requirements of paragraph (c) of this section, to fund any activity that 
is eligible for funding under at least one of the environmental programs 
from which funds are combined into the grant.
    (b) A recipient may also use a Performance Partnership Grant to fund 
multi-media activities that are eligible in accordance with paragraph 
(a) of this section and have been agreed to by the Regional 
Administrator. Such activities may include multi-media permitting and 
enforcement and pollution prevention, ecosystem management, community-
based environmental protection, and other innovative approaches.
    (c) A recipient may not use a Performance Partnership Grant to fund 
activities eligible only under a specific environmental program grant 
unless some or all of the recipient's allotted funds for that program 
have been included in the Performance Partnership Grant.



Sec. 35.136  Cost share requirements.

    (a) An applicant for a Performance Partnership Grant must provide a 
non-federal cost share that is not less than the sum of the minimum non-
federal cost share required under each of the environmental programs 
that are combined in the Performance Partnership Grant. Cost share 
requirements for the individual environmental programs are described in 
Secs. 35.140 to 35.418.
    (b) When an environmental program included in the Performance 
Partnership Grant has both a matching and maintenance of effort 
requirement, the greater of the two amounts will be used to calculate 
the minimum cost share attributed to that environmental program.



Sec. 35.137  Application requirements.

    (a) An application for a Performance Partnership Grant must contain:
    (1) A list of the environmental programs and the amount of funds 
from each program to be combined in the Performance Partnership Grant;
    (2) A consolidated budget;
    (3) A consolidated work plan that addresses each program being 
combined in the grant and that meets the requirements of Sec. 35.107; 
and,
    (4) A rationale, commensurate with the extent of any programmatic 
flexibility (i.e., increased effort in some programs and decreased 
effort in others) indicated in the work plan, that explains the basis 
for the applicant's priorities, the expected environmental or other 
benefits to be achieved, and the anticipated impact on any environmental 
programs or program areas proposed for reduced effort.
    (b) The applicant and the Regional Administrator will negotiate 
regarding the information necessary to support the rationale for 
programmatic flexibility required in paragraph (a)(4) of this section. 
The rationale may be supported by information from a variety of sources, 
including a Performance Partnership Agreement or comparable negotiated 
document, the evaluation report required in Sec. 35.125, and other 
environmental and programmatic data sources.
    (c) A State agency seeking programmatic flexibility is encouraged to 
include a description of efforts to involve the public in developing the 
State agency's priorities.



Sec. 35.138  Competitive grants.

    (a) Some environmental program grants are awarded through a 
competitive process. An applicant and the Regional Administrator may 
agree to add funds available for a competitive grant to a Performance 
Partnership Grant. If this is done, the work plan commitments that would 
have been included in the competitive grant must be included in the 
Performance Partnership Grant work plan. After the funds have been added 
to the Performance Partnership Grant, the recipient does not need to 
account for these funds in accordance with the funds' original 
environmental program source.
    (b) If the projected completion date for competitive grant work plan 
commitments added to a Performance Partnership Grant is after the end of 
the Performance Partnership Grant funding period, the Regional 
Administrator and the applicant will agree in writing as to how the work 
plan commitments will be carried over into future work plans.

[[Page 425]]

                   Air Pollution Control (Section 105)



Sec. 35.140  Purpose.

    (a) Purpose of section. Sections 35.140 through 35.148 govern Air 
Pollution Control Grants to State, local, interstate, or intermunicipal 
air pollution control agencies (as defined in section 302(b) of the 
Clean Air Act) authorized under section 105 of the Act.
    (b) Purpose of program. Air Pollution Control Grants are awarded to 
administer programs that prevent and control air pollution or implement 
national ambient air quality standards.
    (c) Program regulations. Refer to 40 CFR parts 49, 50, 51, 52, 58, 
60, 61, 62, and 81 for associated program regulations.



Sec. 35.141  Definitions.

    In addition to the definitions in Sec. 35.102, the following 
definitions apply to the Clean Air Act's section 105 grant program:
    Implementing means 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 are those expenditures which are shown by 
the recipient to be of a nonrepetitive, unusual, or singular nature that 
would not reasonably be expected to recur in the foreseeable future. 
Costs categorized as nonrecurrent must be approved in the grant 
agreement or an amendment thereto.
    Recurrent expenditures are 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 as such in the grant award or an amendment thereto.



Sec. 35.143  Allotment.

    (a) The Administrator allots air pollution control funds under 
section 105 of the Clean Air Act based on a number of factors, 
including:
    (1) Population;
    (2) The extent of actual or potential air pollution problems; and
    (3) The financial need of each agency.
    (b) The Regional Administrator shall allot to a State not less than 
one-half of one percent nor more than 10 percent of the annual section 
105 grant appropriation.
    (c) The Administrator may award funds on a competitive basis.



Sec. 35.145  Maximum federal share.

    (a) The Regional Administrator may provide air pollution control 
agencies, as defined in section 302(b) of the Clean Air Act, 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.
    (b) Revenue collected pursuant to a State's Title V operating permit 
program may not be used to meet the cost share requirements of section 
105.



Sec. 35.146  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.
    (b) In order 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 grant application, to 
that agency's expenditure level in the second preceding fiscal year. 
When expenditure data for the preceding fiscal year is complete, the 
Regional Administrator shall use this information to determine the 
agency's compliance with its maintenance of effort requirement.
    (c) If the expenditure data for the preceding fiscal year shows that 
an agency did not meet the requirements of Sec. 35.146, the Regional 
Administrator will take action to recover the grant funds for the year 
in which the agency did not maintain its level of effort.
    (d) The Regional Administrator may grant an exception to 
Sec. 35.146(a) if, after notice and opportunity for a public hearing, 
the Regional Administrator determines that a reduction in expenditure is 
attributable to a non-selective reduction of the programs of all 
executive branch agencies of the applicable unit of government.

[[Page 426]]

    (e) The Regional Administrator will not award section 105 funds 
unless the applicant provides assurance that the grant will not supplant 
non-federal funds that would otherwise be available for maintaining the 
section 105 program.



Sec. 35.147  Minimum cost share for a Performance Partnership Grant.

    (a) To calculate the cost share for a Performance Partnership Grant 
(see Secs. 35.130 through 35.138) in the initial and subsequent years 
that it includes section 105 funds, the minimum cost share contribution 
for the section 105 program will be the match requirement set forth in 
Sec. 35.145, or the maintenance of effort established under Sec. 35.146 
in the first year that the section 105 grant is included in a 
Performance Partnership Grant, whichever is greater.
    (b) If an air pollution control agency includes its section 105 air 
program funding in a Performance Partnership Grant and subsequently 
withdraws that program from the grant:
    (1) The required maintenance of effort amount for the section 105 
program for the first year after the program is withdrawn will be equal 
to the maintenance of effort amount required in the year the agency 
included the section 105 program in the Performance Partnership Grant.
    (2) The maximum federal share for the section 105 program in the 
first and subsequent years after the grant is withdrawn may not be more 
than three-fifths of the approved cost of the program.
    (c) The Regional Administrator may approve an exception from 
paragraph (b) of this section upon determining that exceptional 
circumstances justify a reduction in the maintenance of effort, 
including when an air pollution control agency reduces section 105 
funding as part of a non-selective reduction of the programs of all 
executive branch agencies of the applicable unit of government.



Sec. 35.148  Award limitations.

    (a) The Regional Administrator will not award section 105 funds to 
an interstate or intermunicipal agency:
    (1) That 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, Tribal, and 
international interests; and
    (2) Without consulting with the appropriate official designated by 
the Governor or Governors of the State or States affected or the 
appropriate official of any affected Indian Tribe or Tribes.
    (b) The Regional Administrator will not disapprove an application 
for or terminate or annul a section 105 grant without prior notice and 
opportunity for a public hearing in the affected State or States.

                  Water Pollution Control (Section 106)



Sec. 35.160  Purpose.

    (a) Purpose of section. Sections 35.160 through 35.168 govern Water 
Pollution Control Grants to State and interstate agencies (as defined in 
section 502 of the Clean Water Act) authorized under section 106 of the 
Clean Water Act.
    (b) Purpose of program. Water Pollution Control Grants are awarded 
to assist in administering 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 also be eligible for funding under sections 104(b)(3) 
(Water Quality Cooperative Agreements and Wetlands Development Grants), 
205(j)(2) (Water Quality Management Planning), and section 205(g) (State 
Administration Grants) of the Clean Water Act. (See Secs. 35.160, 
35.360, 35.380, 35.400, and 35.410.)
    (c) Associated program requirements. Program requirements for water 
quality planning and management activities are provided in 40 CFR part 
130.



Sec. 35.161  Definition.

    Recurrent expenditures are those expenditures associated with the 
activities of a continuing Water Pollution Control program. All 
expenditures, except those for equipment purchases of $5,000 or more, 
are considered recurrent unless justified by the applicant as 
nonrecurrent and approved as such in the grant award or an amendment 
thereto.

[[Page 427]]



Sec. 35.162  Basis for allotment.

    (a) Allotments. Each fiscal year funds appropriated for Water 
Pollution Control grants to State and interstate agencies will be 
allotted to States and interstate agencies on the basis of the extent of 
the pollution problems in the respective States. A portion of the funds 
appropriated for States under the Water Pollution Control grant program 
will be set aside for allotment to eligible interstate agencies. The 
interstate allotment will be 2.6 percent of the funds available under 
this paragraph.
    (b) State allotment formula. The Water Pollution Control State grant 
allotment formula establishes an allotment ratio for each State based on 
six components selected to reflect the extent of the water pollution 
problem in the respective States. The formula provides a funding floor 
for each State with provisions for periodic adjustments for inflation 
and a maximum funding level (150 percent of its previous fiscal year 
allotment).
    (1) Components and component weights--(i) Components. The six 
components used in the Water Pollution Control State grant allotment 
formula are: Surface Water Area; Ground Water Use; Water Quality 
Impairment; Point Sources; Nonpoint Sources; and Population of Urbanized 
Area. The components for the formula are presented in Table 1 of this 
section, with their associated elements, sub-elements, and supporting 
data sources.

[[Page 428]]

[GRAPHIC] [TIFF OMITTED] TR09JA01.019

    (ii) Component weights. To account for the fact that not all of the 
selected formula components contribute equally to the extent of the 
pollution problem within the States, each formula component is weighted 
individually. Final component weights will be phased-in by Fiscal Year 
(FY) 2004, according to the schedule presented in Table 2 of this 
section:

[[Page 429]]



  Table 2--Component Weights in the Water Pollution Control State Grant
                            Allotment Formula
------------------------------------------------------------------------
                                                     FY2001-
               Component                  FY 2000     FY2003    FY2004+
                                         (percent)  (percent)  (percent)
------------------------------------------------------------------------
Surface Water Area.....................         13         13         12
Ground Water Use.......................         11         12         12
Water Quality Impairment...............         13         25         35
Point Sources..........................         25         17         13
Nonpoint Sources.......................         18         15         13
Population of Urbanized Area...........         20         18         15
                                        --------------------------------
    Total..............................        100        100        100
------------------------------------------------------------------------

    (2) Funding floor. A funding floor is established for each State. 
Each State's funding floor will be at least equal to its FY 2000 
allotment in all future years unless the funds appropriated for States 
under the Water Pollution Control grant program decrease from the FY 
2000 amount.
    (3) Funding decrease. If the appropriation for Water Pollution 
Control State grants decreases in future years, the funding floor will 
be disregarded and all State allotments will be reduced by an equal 
percentage.
    (4) Inflation adjustment. Funding floors for each State will be 
adjusted for inflation when the funds appropriated for Water Pollution 
Control State grants increase from the preceding fiscal year. These 
adjustments will be made on the basis of the cumulative change in the 
Consumer Price Index (CPI), published by the U.S. Department of Labor, 
since the most recent year in which Water Pollution Control State grant 
funding last increased. Inflation adjustments to State funding floors 
will be capped at the lesser of the percentage change in appropriated 
funds or the cumulative percentage change in the inflation rate.
    (5) Cap on annual funding increases. The maximum allotment to any 
State will be 150 percent of that State's allotment for the previous 
fiscal year.
    (6) Cap on component ratio. A component ratio is equal to each 
State's share of the national total of a single component. The cap on 
each of the six State formula components ratios is 10 percent. If a 
State's calculated component ratio for a particular component exceeds 
the 10 percent cap, the State will instead be assigned 10 percent for 
that component. The component ratios for all other States will be 
adjusted accordingly.
    (7) Update cycle. The data used in the State formula will be 
periodically updated. The first update will impact allotments for FY 
2001, and will consist of updating the data used to support the Water 
Quality Impairment component of the formula. These data will be updated 
using the currently available Clean Water Act section 305(b) reports. 
After this initial update, the data used to support all six components 
of the Water Pollution Control State grant allotment formula will be 
updated in FY 2003 (for use in the determination of FY 2004 allotments). 
Thereafter, all data will be updated every five years (e.g., in FY 2008 
for FY 2009 allotments and in FY 2013 for FY 2014 allotments.) There 
will be an annual adjustment to the funding floor for all States, based 
on the appropriation for Water Pollution Control State grants and 
changes in the CPI.
    (c) Interstate allotment formula. EPA will set-aside 2.6 percent of 
the funds appropriated for the Water Pollution Control State grant 
program for interstate agencies. The interstate agency Water Pollution 
Control grant allotment formula consists of two parts: a base allotment 
and a variable allotment.
    (1) Base allotment. Each eligible interstate agency shall be 
provided a base allotment of $125,000 to help fund coordination 
activities among its member States. However, no more than 50 percent of 
the total available interstate set-aside may be allotted as part of the 
base allotment. If, given the 50 percent limitation placed on the base 
allotment, the amount of interstate

[[Page 430]]

set-aside funds is insufficient to provide each interstate agency with 
$125,000, then each interstate agency will receive a base allotment 
equal to 50 percent of the total interstate set-aside divided by the 
total number of eligible interstate agencies.
    (2) Variable allotment. The variable allotment provides for funds to 
be distributed to interstate agencies on the basis of the extent of the 
pollution problems in the respective States. Funds not allotted under 
the base allotment will be allotted to eligible interstate agencies 
based on each interstate agency's share of their member States' Water 
Pollution Control grant formula allotment ratios. Updates of the data 
for the six components of the Water Pollution Control State grant 
allocation formula will automatically result in corresponding updates to 
the variable allotment portion of the interstate allotments. The 
allotment ratios for those States involved in compacts with more than 
one interstate agency will be allocated among such interstate agencies 
based on the percentage of each State's territory that is situated 
within the drainage basin or watershed area covered by each compact.



Sec. 35.165  Maintenance of effort.

    To receive a Water Pollution Control grant, a 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.



Sec. 35.168  Award limitations.

    (a) The Regional Administrator may award section 106 funds to a 
State only if:
    (1) The State monitors and compiles, analyzes, and reports water 
quality data as described in section 106(e)(1) of the Clean Water Act;
    (2) The State has authority comparable to that in section 504 of the 
Clean Water Act and adequate contingency plans to implement such 
authority;
    (3) There is no federally-assumed enforcement as defined in section 
309(a)(2) of the Clean Water Act in effect with respect to the State 
agency;
    (4) The State's work plan shows that the activities to be funded are 
coordinated, as appropriate, with activities proposed for funding under 
sections 205(g) and (j) of the Clean Water Act; and
    (5) The State filed with the Administrator within 120 days after 
October 18, 1972, a summary report of the current status of the State 
pollution control program, including the criteria used by the State in 
determining priority of treatment works.
    (b) The Regional Administrator may award section 106 funds to an 
interstate agency only if:
    (1) The interstate agency filed with the Administrator within 120 
days after October 18, 1972, a summary report of the current status of 
the State pollution control program, including the criteria used by the 
State in determining priority of treatment works.
    (2) There is no federally-assumed enforcement as defined in section 
309(a)(2) of the Clean Water Act in effect with respect to the 
interstate agency.

            Public Water System Supervision (Section 1443(a))



Sec. 35.170  Purpose.

    (a) Purpose of section. Sections 35.170 through 35.178 govern Public 
Water System Supervision Grants to States (as defined in section 1401 
(13)(A) of the Safe Drinking Water Act) authorized under section 1443(a) 
of the Act.
    (b) Purpose of program. Public Water System Supervision Grants are 
awarded to carry out public water system supervision programs including 
implementation and enforcement of the requirements of the Act that apply 
to public water systems.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR parts 141, 142, and 143.



Sec. 35.172  Allotment.

    (a) Basis for allotment. The Administrator allots funds for grants 
to support States' Public Water System Supervision programs based on 
each State's population, geographic area, numbers of community and non-
community water systems, and other relevant factors.

[[Page 431]]

    (b) Allotment limitation. No State, except American Samoa, Guam, the 
Virgin Islands, and the Commonwealth of the Northern Mariana Islands, 
shall be allotted less than $334,500 (which is one percent of the FY 
1989 appropriation).



Sec. 35.175  Maximum federal share.

    The Regional Administrator may provide a maximum of 75 percent of 
the State's approved work plan costs.



Sec. 35.178  Award limitations.

    (a) Initial grants. The Regional Administrator will not make an 
initial award unless the applicant has an approved Public Water System 
Supervision program or agrees to establish an approvable program within 
one year of the initial award.
    (b) Subsequent grants. The Regional Administrator will not award a 
grant to a State after the initial award unless the applicant has 
assumed and maintained primary enforcement responsibility for the 
State's Public Water System Supervision program.

          Underground Water Source Protection (Section 1443(b))



Sec. 35.190  Purpose.

    (a) Purpose of section. Sections 35.190 through 35.198 govern 
Underground Water Source Protection Grants to States (as defined in 
section 1401(13)(A) of the Safe Drinking Water Act) authorized under 
section 1443(b) of the Act.
    (b) Purpose of program. The Underground Water Source Protection 
Grants are awarded to carry out underground water source protection 
programs.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR 124, 144, 145, 146, and 147.



Sec. 35.192  Basis for allotment.

    The Administrator allots funds for grants to support State's 
underground water source protection programs based on such factors as 
population, geographic area, extent of underground injection practices, 
and other relevant factors.



Sec. 35.195  Maximum federal share.

    The Regional Administrator may provide a maximum of 75 percent of a 
State's approved work plant costs.



Sec. 35.198  Award limitation.

    The Regional Administrator will only award section 1443(b) funds to 
States that have primary enforcement responsibility for the underground 
water source protection program.

              Hazardous Waste Management (Section 3011(a))



Sec. 35.210  Purpose.

    (a) Purpose of section. Sections 35.210 through 35.218 govern 
Hazardous Waste Management Grants to States (as defined in section 1004 
of the Solid Waste Disposal Act) under section 3011(a) of the Act.
    (b) Purpose of program. Hazardous Waste Management Grants are 
awarded to assist States in the development and implementation of 
authorized State hazardous waste management programs.
    (c) Associated program regulations. Associated program regulations 
are at 40 CFR part 124, subparts B, E, and F; 40 CFR parts 260 through 
266; 40 CFR parts 268 through 273; and 40 CFR part 279.



Sec. 35.212  Basis for allotment.

    The Administrator allots funds for Hazardous Waste Management Grants 
in accordance with section 3011(b) of the Solid Waste Disposal Act based 
on factors including:
    (a) The extent to which hazardous waste is generated, transported, 
treated, stored, and disposed of in the State;
    (b) The extent to which human beings and the environment in the 
State are exposed to such waste, and;
    (c) Other factors the Administrator deems appropriate.



Sec. 35.215  Maximum federal share.

    The Regional Administrator may provide up to 75 percent of the 
approved work plant costs.



Sec. 35.218  Award limitation.

    The Regional Administrator will not award Hazardous Waste Management

[[Page 432]]

Grants to a State with interim or final hazardous waste authorization 
unless the applicant is the lead agency designated in the authorization 
agreement.

          Pesticide Cooperative Enforcement (Section 23(a)(1))



Sec. 35.230  Purpose.

    (a) Purpose of section. Sections 35.230 through 35.235 govern 
Pesticide Enforcement Cooperative Agreements to States (as defined in 
section 2 of Federal Insecticide, Fungicide, and Rodenticide Act) under 
section 23(a)(1) of the Act.
    (b) Purpose of program. Pesticides Enforcement Cooperative 
Agreements are awarded to assist States to implement pesticide 
enforcement programs.
    (c) Program regulations. Associated program regulations are at 40 
CFR parts 150 through 189 and 19 CFR part 12.



Sec. 35.232  Basis for allotment.

    (a) Factors for FIFRA enforcement program funding. The factors 
considered in allotment of funds for enforcement of FIFRA are:
    (1) The State's population,
    (2) The number of pesticide-producing establishments,
    (3) The numbers of certified private and commercial pesticide 
applicators,
    (4) The number of farms and their acreage, and
    (5) As appropriate, the State's potential farm worker protection 
concerns.
    (b) Final allotments. Final allotments are negotiated between each 
State and the appropriate Regional Administrator.



Sec. 35.235  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs.

   Pesticide Applicator Certification and Training (Section 23(a)(2))



Sec. 35.240  Purpose.

    (a) Purpose of section. Sections 35.240 through 35.245 govern 
Pesticide Applicator Certification and Training Grants to States (as 
defined in section 2 of Federal Insecticide, Fungicide, and Rodenticide 
Act) under section 23(a)(2) of the Act.
    (b) Purpose of program. Pesticide Applicator Certification and 
Training Grants are awarded to train and certify restricted use 
pesticide applicators.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR parts 162, 170, and 171.



Sec. 35.242  Basis for allotment.

    The Regional Administrator considers two factors in allotting 
pesticides applicator certification and training funds:
    (a) The number of farms in each State; and
    (b) The numbers of private and commercial applicators requiring 
certification and recertification in each State.



Sec. 35.245  Maximum federal share.

    The Regional Administrator may provide up to 50 percent of the 
approved work plan costs.

           Pesticide Program Implementation (Section 23(a)(1))



Sec. 35.250  Purpose.

    (a) Purpose of section. Sections 35.250 through 35.259 govern 
Pesticide Program Implementation Cooperative Agreements to States (as 
defined in section 2 of Federal Insecticide, Fungicide, and Rodenticide 
Act) under section 23(a)(1) of the Act.
    (b) Purpose of program. Pesticide Program Implementation Cooperative 
Agreements are awarded to assist States to develop and implement 
pesticide programs, including programs that protect workers, 
groundwater, and endangered species from pesticide risks and for other 
pesticide management programs designated by the Administrator.
    (c) Program regulations. Associated program regulations are at 40 
CFR parts 150 through 189 and 19 CFR part 12.



Sec. 35.251  Basis for allotment.

    (a) Factors for pesticide program implementation funding. The 
factors considered in allotment of funds for pesticide program 
implementation are based

[[Page 433]]

upon potential ground water, endangered species, and worker protection 
concerns in each State relative to other States and on other factors the 
Administrator deems appropriate for these or other pesticide program 
implementation activities.
    (b) Final allotments. Final allotments are negotiated between each 
State and the appropriate Regional Administrator.



Sec. 35.252  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs.

               Nonpoint Source-Management (Section 319(h))



Sec. 35.260  Purpose.

    (a) Purpose of section. Sections 35.260 through 35.268 govern 
Nonpoint Source Management Grants to States (as defined in section 502 
of the Clean Water Act) authorized under section 319 of the Act.
    (b) Purpose of program. Nonpoint Source Management Grants may be 
awarded for the implementation of EPA-approved nonpoint source 
management programs, including ground-water quality protection 
activities, that will advance the implementation of a comprehensive 
approved nonpoint source management program.



Sec. 35.265  Maximum federal share.

    The Regional Administrator may provide up to 60 percent of the 
approved work plan costs in any fiscal year. The non-federal share of 
costs must be provided from non-federal sources.



Sec. 35.266  Maintenance of effort.

    To receive section 319 funds in any fiscal year, a State must agree 
to maintain its aggregate expenditures from all other sources for 
programs for controlling nonpoint pollution and improving the quality of 
the State's waters at or above the average level of such expenditures in 
Fiscal Years 1985 and 1986.



Sec. 35.268  Award limitations.

    The following limitations apply to funds appropriated and awarded 
under section 319(h) of the Act in any fiscal year.
    (a) Award amount. The Regional Administrator will award no more than 
15 percent of the amount appropriated to carry out section 319(h) of the 
Act to any one State. This amount includes any grants to any local 
public agency or organization with authority to control pollution from 
nonpoint sources in any area of the State.
    (b) Financial assistance to persons. States may use funds for 
financial assistance to persons only to the extent that such assistance 
is related to the cost of demonstration projects.
    (c) Administrative costs. Administrative costs in the form of 
salaries, overhead, or indirect costs for services provided and charged 
against activities and programs carried out with these funds shall not 
exceed 10 percent of the funds the State receives in any fiscal year. 
The cost of implementing enforcement and regulatory activities, 
education, training, technical assistance, demonstration projects, and 
technology transfer programs are not subject to this limitation.
    (d) Requirements. The Regional Administrator will not award section 
319(h) funds to a State unless:
    (1) Approved assessment report. EPA has approved the State's 
assessment report on nonpoint sources, prepared in accordance with 
section 319(a) of the Act;
    (2) Approved State management program. EPA has approved the State's 
management program for nonpoint sources, prepared in accordance with 
section 319(b) of the Act;
    (3) Progress on reducing pollutant loadings. The Regional 
Administrator determines that the State made satisfactory progress in 
the preceding fiscal year in meeting its schedule for achieving 
implementation of best management practices to reduce pollutant loadings 
from categories of nonpoint sources, or particular nonpoint sources, 
designated in the State's management program. The State must have 
developed this schedule in accordance with section 319(b)(2)(c) of the 
Act;
    (4) Activity and output descriptions. The work plan briefly 
describes each significant category of nonpoint source

[[Page 434]]

activity and the work plan commitments to be produced for each category; 
and
    (5) Significant watershed projects. For watershed projects whose 
costs exceed $50,000, the work plan also contains:
    (i) A brief synopsis of the watershed implementation plan outlining 
the problem(s) to be addressed;
    (ii) The project's goals and objectives; and
    (iii) The performance measures or environmental indicators that will 
be used to evaluate the results of the project.

                Lead-Based Paint Program (Section 404(g))



Sec. 35.270  Purpose.

    (a) Purpose of section. Sections 35.270 through 35.278 govern Lead-
Based Paint Program Grants to States (as defined in section 3 of the 
Toxic Substances Control Act), under section 404(g) of the Act.
    (b) Purpose of program. Lead-Based Paint Program Grants are awarded 
to develop and carry out authorized programs to ensure that individuals 
employed in lead-based paint activities are properly trained; that 
training programs are accredited; and that contractors employed in such 
activities are certified.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR part 745.



Sec. 35.272  Funding coordination.

    Recipients must use the lead-based paint program funding in a way 
that complements any related assistance they receive from other federal 
sources for lead-based paint activities.

                 State Indoor Radon Grants (Section 306)



Sec. 35.290  Purpose.

    (a) Purpose of section. Sections 35.290 through 35.298 govern Indoor 
Radon Grants to States (as defined in section 3 of the Toxic Substances 
Control Act, which include territories and the District of Columbia) 
under section 306 of the Toxic Substances Control Act.
    (b) Purpose of program. (1) State Indoor Radon Grants are awarded to 
assist States with the development and implementation of programs that 
assess and mitigate radon and that aim at reducing radon health risks. 
State Indoor Radon Grant funds may be used for the following eligible 
activities:
    (i) Survey of radon levels, including special surveys of geographic 
areas or classes of buildings (such as public buildings, school 
buildings, high-risk residential construction types);
    (ii) Development of public information and education materials 
concerning radon assessment, mitigation, and control programs;
    (iii) Implementation of programs to control radon on existing and 
new structures;
    (iv) Purchase by the State of radon measurement equipment and 
devices;
    (v) Purchase and maintenance of analytical equipment connected to 
radon measurement and analysis, including costs of calibration of such 
equipment;
    (vi) Payment of costs of EPA-approved training programs related to 
radon for permanent State or local employees;
    (vii) Payment of general overhead and program administration costs 
in accordance with Sec. 35.298(d);
    (viii) Development of a data storage and management system for 
information concerning radon occurrence, levels, and programs;
    (ix) Payment of costs of demonstration of radon mitigation methods 
and technologies as approved by EPA, including State participation in 
the EPA Home Evaluation Program; and
    (x) A toll-free radon hotline to provide information and technical 
assistance.
    (2) States may use grant funds to assist local governments in 
implementation of activities eligible for assistance under paragraphs 
(b)(1)(ii), (iii), and (vi) of this section.
    (3) In implementing paragraphs (b)(1)(iv) and (ix) of this section, 
a State should make every effort, consistent with the goals and 
successful operation of the State radon program, to give preference to 
low-income persons.
    (4) Funds appropriated for section 306 may not be used to cover the 
costs of federal proficiency rating programs under section 305(a)(2) of 
the Act.

[[Page 435]]

Funds appropriated for section 306 and grants awarded under section 306 
may be used to cover the costs of State proficiency rating programs.



Sec. 35.292  Basis for allotment.

    (a) The Regional Administrator will allot State Indoor Radon Grant 
funds based on the criteria in EPA Guidance in accordance with sections 
306(d) and (e) of the Toxic Substances Control Act.
    (b) No State may receive a State Indoor Radon Grant in excess of 10 
percent of the total appropriated amount made available each fiscal 
year.



Sec. 35.295  Maximum federal share.

    The Regional Administrator may provide State agencies up to 50 
percent of the approved costs for the development and implementation of 
radon program activities.



Sec. 35.298  Award limitations.

    (a) The Regional Administrator shall not include State Indoor Radon 
funds in a Performance Partnership Grant awarded to another State Agency 
without consulting with the State Agency which has the primary 
responsibility for radon programs as designated by the Governor of the 
affected State.
    (b) No grant may be made in any fiscal year to a State which in the 
preceding fiscal year did not satisfactorily implement the activities 
funded by the grant in the preceding fiscal year.
    (c) The costs of radon measurement equipment or devices (see 
Sec. 35.290(b)(1)(iv)) and demonstration of radon mitigation, methods, 
and technologies (see Sec. 35.290(b)(1)(ix)) shall not, in the 
aggregate, exceed 50 percent of a State's radon grant award in a fiscal 
year.
    (d) The costs of general overhead and program administration (see 
Sec. 35.290(b)(1)(vii)) of a State Indoor Radon grant shall not exceed 
25 percent of the amount of a State's Indoor Radon Grant in a fiscal 
year.
    (e) A State may use funds for financial assistance to persons only 
to the extent such assistance is related to demonstration projects or 
the purchase and analysis of radon measurement devices.
    (f) Recipients must provide the Regional Administrator all radon-
related information generated in its grant supported activities, 
including the results of radon surveys, mitigation demonstration 
projects, and risk communication studies.
    (g) Recipients must maintain and make available to the public, a 
list of firms and individuals in the State that have received a passing 
rating under the EPA proficiency rating program under section 305(a)(2) 
of the Act.

           Toxic Substances Compliance Monitoring (Section 28)



Sec. 35.310  Purpose.

    (a) Purpose of section. Sections 35.310 through 35.315 govern Toxic 
Substances Compliance Monitoring Grants to States (as defined in section 
3(13) of the Toxic Substances Control Act) under section 28(a) of the 
Act.
    (b) Purpose of program. Toxic Substances Compliance Monitoring 
Grants are awarded to establish and operate compliance monitoring 
programs to prevent or eliminate unreasonable risks to health or the 
environment associated with chemical substances or mixtures within the 
States with respect to which the Administrator is unable or not likely 
to take action for their prevention or elimination.
    (c) Associated program regulations. Associated program regulations 
are at 40 CFR parts 700 through 799.



Sec. 35.312  Competitive process.

    EPA will award Toxic Substances Control Act Compliance Monitoring 
grant funds to States through a competitive process in accordance with 
national program guidance.



Sec. 35.315  Maximum federal share.

    The Regional Administrator may provide up to 75 percent of the 
approved work plan costs.



Sec. 35.318  Award limitation.

    If the toxic substances compliance monitoring grant funds are 
included in a Performance Partnership Grant, the toxic substances 
compliance monitoring work plan commitments must be included in the 
Performance Partnership Grant work plan.

[[Page 436]]

          State Underground Storage Tanks (Section 2007(f)(2))



Sec. 35.330  Purpose.

    (a) Purpose of section. Sections 35.330 through 35.335 govern 
Underground Storage Tank Grants to States (as defined in section 1004 of 
the Solid Waste Disposal Act) under section 2007(f)(2) of the Act.
    (b) Purpose of program. State Underground Storage Tank Grants are 
awarded to States to develop and implement a State underground storage 
tank release detection, prevention, and corrective action program under 
Subtitle I of the Resource Conservation and Recovery Act.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR parts 280 through 282.



Sec. 35.332  Basis for allotment.

    The Administrator allots State Underground Storage Tank Grant funds 
to each EPA regional office. Regional Administrators award funds to 
States based on their programmatic needs and applicable EPA guidance.



Sec. 35.335  Maximum federal share.

    The Regional Administrator may provide up to 75 percent of the 
approved work plan costs.

            Pollution Prevention State Grants (Section 6605)



Sec. 35.340  Purpose.

    (a) Purpose of section. Sections 35.340 through 35.349 govern 
Pollution Prevention State Grants under section 6605 of the Pollution 
Prevention Act.
    (b) Purpose of program. Pollution Prevention State Grants are 
awarded to promote the use of source reduction techniques by businesses.



Sec. 35.342  Competitive process.

    EPA Regions award Pollution Prevention State Grants to State 
programs through a competitive process in accordance with EPA guidance. 
When evaluating State applications, EPA must consider, among other 
criteria, whether the proposed State program would:
    (a) Make specific technical assistance available to businesses 
seeking information about source reduction opportunities, including 
funding for experts to provide onsite technical advice to businesses 
seeking assistance in the development of source reduction plans;
    (b) Target assistance to businesses for whom lack of information is 
an impediment to source reduction; and
    (c) Provide training in source reduction techniques. Such training 
may be provided through local engineering schools or other appropriate 
means.



Sec. 35.343  Definitions.

    In addition to the definitions in Sec. 35.102, the following 
definitions apply to the Pollution Prevention State Grants program and 
to Secs. 35.340 through 35.349:
    (a) Pollution prevention/source reduction is any practice that:
    (1) Reduces the amount of any hazardous substance, pollutant, or 
contaminant entering any waste stream or otherwise released into the 
environment (including fugitive emissions) prior to recycling, 
treatment, or disposal;
    (2) Reduces the hazards to public health and the environment 
associated with the release of such substances, pollutants, or 
contaminants; or
    (3) Reduces or eliminates the creation of pollutants through:
    (i) Increased efficiency in the use of raw materials, energy, water, 
or other resources; or
    (ii) Protection of natural resources by conservation.
    (b) Pollution prevention/source reduction does not include any 
practice which alters the physical, chemical, or biological 
characteristics or the volume of a hazardous substance, pollutant, or 
contaminant through a process or activity which itself is not integral 
to and necessary for the production of a product or the providing of a 
service.



Sec. 35.345  Eligible applicants.

    Applicants eligible for funding under the Pollution Prevention 
program include any agency or instrumentality, including State 
universities, of the 50 States, the District of Columbia, the U.S. 
Virgin Islands, the Commonwealth of Puerto Rico, and any territory or 
possession of the United States.

[[Page 437]]



Sec. 35.348  Award limitation.

    If a State includes a Pollution Prevention State Grant in a 
Performance Partnership Grant, the work plan commitments must be 
included in the Performance Partnership Grant work plan (see 
Sec. 35.138).



Sec. 35.349  Maximum federal share.

    The federal share for Pollution Prevention State Grants will not 
exceed 50 percent of the allowable pollution prevention State grant 
project cost.

        Water Quality Cooperative Agreements (Section 104(b)(3))



Sec. 35.360  Purpose.

    (a) Purpose of section. Sections 35.360 through 35.364 govern Water 
Quality Cooperative Agreements to State water pollution control agencies 
and interstate agencies (as defined in section 502 of the Clean Water 
Act) and local government agencies under section 104(b)(3) of the Act. 
These sections do not govern Water Quality Cooperative Agreements to 
other entities eligible under sections 104(b)(3) which are generally 
subject to the uniform administrative requirements of 40 CFR part 30.
    (b) Purpose of program. EPA awards Water Quality Cooperative 
Agreements for investigations, experiments, training, demonstrations, 
surveys, and studies relating to the causes, effects, extent, 
prevention, reduction, and elimination of water pollution. EPA issues 
guidance each year advising EPA regions and headquarters regarding 
appropriate priorities for funding for this program. This guidance may 
include such focus areas as National Pollutant Discharge Elimination 
System watershed permitting, urban wet weather programs, or innovative 
pretreatment program or biosolids projects.



Sec. 35.362  Competitive process.

    EPA will award Water Quality Cooperative Agreement funds through a 
competitive process in accordance with national program guidance.



Sec. 35.364  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of approved 
work plan costs.

          State Wetlands Development Grants (Section 104(b)(3))



Sec. 35.380  Purpose.

    (a) Purpose of section. Sections 35.380 through 35.385 govern State 
Wetlands Development Grants for State and interstate agencies (as 
defined in section 502 of the Clean Water Act) and local government 
agencies under section 104(b)(3) of the Act. These sections do not 
govern wetlands development grants to other entities eligible under 
section 104(b)(3) which are generally subject to the uniform 
administrative requirements of 40 CFR part 30.
    (b) Purpose of program. EPA awards State Wetlands Development Grants 
to assist in the development of new, or refinement of existing, wetlands 
protection and management programs.



Sec. 35.382  Competitive process.

    State Wetlands Development Grants are awarded on a competitive 
basis. EPA annually establishes a deadline for receipt of proposed grant 
project applications. EPA reviews applications and decides which grant 
projects to fund in a given year based on criteria established by EPA. 
After the competitive process is complete, the recipient can, at its 
discretion, accept the award as a State Wetlands Development Grant or 
add the funds to a Performance Partnership Grant. If the recipient 
chooses to add the funds to a Performance Partnership Grant, the 
wetlands development program work plan commitments must be included in 
the Performance Partnership Grant work plan.



Sec. 35.385  Maximum federal share.

    EPA may provide up to 75 percent of the approved work plan costs for 
the development or refinement of a wetlands protection and management 
program.

                  State Administration (Section 205(g))



Sec. 35.400  Purpose.

    (a) Purpose of section. Sections 35.400 through 35.408 govern State 
Administration Grants to States (as defined in section 502 of the Clean 
Water Act) authorized under section 205(g) of the Act.

[[Page 438]]

    (b) Purpose of program. EPA awards these grants for the following 
two purposes:
    (1) Construction management grants. A State may use section 205(g) 
funds 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. A State may 
also use construction management assistance funds for administering 
elements of a State's construction grant program which are implemented 
without federal grants, if the Regional Administrator determines that 
those elements are consistent with 40 CFR part 35, subpart I.
    (2) Permit and planning grants. A State may use section 205(g) funds 
for administering permit programs under sections 402 and 404, including 
Municipal Wastewater Pollution Prevention activities under an approved 
section 402 program and State operator training programs, and for 
administering statewide waste treatment management planning programs, 
including the development of State biosolids management programs, under 
section 208(b)(4). Some of these activities may also be eligible for 
funding under sections 106 (Water Pollution Control), 205(j)(2) (Water 
Quality Management Planning), and 104(b)(3) (Water Quality Cooperative 
Agreements and Wetlands Development Grants) of the Clean Water Act. (See 
Secs. 35.160, 35.410, 35.360, and 35.380.)
    (c) Associated program requirements. Program requirements for State 
construction management activities under delegation are provided in 40 
CFR part 35, subparts I and J. Program requirements for water quality 
management activities are provided in 40 CFR part 130.



Sec. 35.402  Allotment.

    Each State may reserve up to four percent of the State's authorized 
construction grant allotment as determined by Congress or $400,000, 
whichever is greater, for section 205 (g) grants.



Sec. 35.405  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 (see Sec. 35.165).



Sec. 35.408  Award limitations.

    The Regional Administrator will not award section 205(g) funds:
    (a) For construction management grants unless there is a signed 
agreement delegating responsibility for administration of those 
activities to the State.
    (b) For permit and planning grants before awarding funds providing 
for the management of a substantial portion of the State's construction 
grants program. The maximum amount of permit and planning grants a State 
may receive is limited to 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) For permit and planning grants unless the work plan submitted 
with the application shows that the activities to be funded are 
coordinated, as appropriate, with activities proposed for funding under 
sections 106 (Water Pollution Control) and 205(j) (Water Quality 
Management Planning) of the Clean Water Act.

      Water Quality Management Planning Grants (Section 205(j)(2))



Sec. 35.410  Purpose.

    (a) Purpose of section. Sections 35.410 through 35.418 govern Water 
Quality Management Planning Grants to States (as defined in section 502 
of the Clean Water Act) authorized under section 205(j)(2) of the Act.
    (b) Purpose of program. EPA awards Water Quality Management Planning 
Grants to carry out water quality management planning activities. Some 
of these activities may also be eligible for funding under sections 106 
(Water Pollution Control), 104(b)(3) (Water Quality Cooperative 
Agreements and Wetlands Development Grants) and section 205(g) (State 
Administration Grants) of

[[Page 439]]

the Clean Water Act. (See Secs. 35.160, 35.360, 35.380, and 35.400.) EPA 
awards these grants for purposes such as:
    (1) Identification of the most cost-effective and locally acceptable 
facility and nonpoint measures to meet and maintain water quality 
standards.
    (2) Development of an implementation plan to obtain State and local 
financial and regulatory commitments to implement measures developed 
under paragraph (b)(1) of this section.
    (3) Determination of the nature, extent, and causes of water quality 
problems in various areas of the State and interstate region.
    (4) Determination of those publicly owned treatment works which 
should be constructed with State Revolving Fund assistance. This 
determination should take 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.
    (5) Implementation of section 303(e) of the Clean Water Act.
    (c) Program requirements for water quality management planning 
activities are provided in 40 CFR part 130.



Sec. 35.412  Allotment.

    States must reserve, each fiscal year, not less than $100,000 nor 
more than one percent of the State's construction grant allotment as 
determined by Congress for Water Quality Management Planning Grants 
under section 205(j)(2). However, Guam, the Virgin Islands, American 
Samoa and the Commonwealth of the Northern Mariana Islands must reserve 
a reasonable amount for this purpose. (See 40 CFR 35.3110(g)(4) 
regarding reserves from State allotments under Title VI of the Clean 
Water Act for section 205(j) grants.)



Sec. 35.415  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs.



Sec. 35.418  Award limitations.

    The following limitations apply to funds awarded under section 
205(j)(2) of the Clean Water Act. The Regional Administrator will not 
award these grants to a State agency:
    (a) Unless the agency develops its work plan 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 plan.
    (b) Unless the agency reports annually on the nature, extent, and 
causes of water quality problems in various areas of the State and 
interstate region.
    (c) Unless the work plan submitted with the application shows that 
the activities to be funded are coordinated, as appropriate, with 
activities proposed for funding under section 106 (Water Pollution 
Control) of the Clean Water Act.



           Subpart B--Environmental Program Grants for Tribes

    Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C. 1251 et seq.; 42 U.S.C. 
300f et seq.; 42 U.S.C. 6901 et seq.; 7 U.S.C. 136 et seq.; 15 U.S.C. 
2601 et seq.; 42 U.S.C. 13101 et seq.; Pub. L. 104-134, 110 Stat. 1321, 
1321-299 (1996); Pub. L. 105-65, 111 Stat. 1344, 1373 (1997); Pub. L. 
105-276, 112 Stat. 2461, 2499 (1988).

    Source: 66 FR 3795, Jan. 16, 2001, unless otherwise noted.

                           General--All Grants



Sec. 35.500  Purpose of the subpart.

    This subpart establishes administrative requirements for all grants 
awarded to Indian Tribes and Intertribal Consortia for the environmental 
programs listed in Sec. 35.501. This subpart supplements requirements in 
EPA's general grant regulations found at 40 CFR part 31. Sections 
35.500-518 contain administrative requirements that apply to all 
environmental program grants included in this subpart. Sections 35.530 
through 35.718 contain requirements that apply to specified 
environmental program grants. Many of these environmental programs also 
have programmatic and technical requirements that are published 
elsewhere in the Code of Federal Regulations.

[[Page 440]]



Sec. 35.501  Environmental programs covered by the subpart.

    (a) The requirements in this subpart apply to all grants awarded for 
the following programs:
    (1) Performance Partnership Grants (1996 Omnibus Consolidated 
Rescissions and Appropriations Act of 1996, Pub. L. 104-134; 110 Stat. 
1321, 1321-299 (1996) and Departments of Veterans Affairs, Housing and 
Urban Development, and Independent Agencies Appropriations Act of 1998, 
Pub. L. 105-65; 111 Stat. 1344, 1373 (1997)).
    (2) The Indian Environmental General Assistance Program Act of 1992, 
42 U.S.C. 4368b.
    (3) Clean Air Act. Air pollution control (section 105).
    (4) Clean Water Act.
    (i) Water pollution control (section 106 and 518).
    (ii) Water quality cooperative agreements (section 104(b)(3)).
    (iii) Wetlands development grant program (section 104(b)(3)).
    (iv) Nonpoint source management (section 319(h)).
    (5) Federal Insecticide, Fungicide, and Rodenticide Act.
    (i) Pesticide cooperative enforcement (section 23(a)(1)).
    (ii) Pesticide applicator certification and training (section 
23(a)(2)).
    (iii) Pesticide program implementation (section 23(a)(1)).
    (6) Pollution Prevention Act of 1990. Pollution prevention grants 
for Tribes (section 6605).
    (7) Safe Drinking Water Act.
    (i) Public water system supervision (section 1443(a)).
    (ii) Underground water source protection (section 1443(b)).
    (8) Toxic Substances Control Act.
    (i) Lead-based paint program (section 404(g)).
    (ii) Indoor radon grants (section 306).
    (iii) Toxic substances compliance monitoring (section 28).
    (9) Department of Veterans Affairs and Housing and Urban 
Development, and Independent Agencies Appropriations Act, 1999 (Pub. L. 
105-276; 112 Stat. 2461, 2499; 42 U.S.C. 6908a).
    (i) Hazardous Waste Management Program Grants (Pub. L. 105-276; 112 
Stat. 2461, 2499; 42 U.S.C. 6908a).
    (ii) Underground Storage Tanks Program Grants (Pub. L. 105-276; 112 
Stat. 2461, 2499; 42 U.S.C. 6908a).
    (b) Unless otherwise prohibited by statute or regulation, the 
requirements in Sec. 35.500 through Sec. 35.518 of this subpart also 
apply to grants to Indian Tribes and Intertribal Consortia under 
environmental programs established after this subpart becomes effective, 
if specified in Agency guidance for such programs.
    (c) In the event a grant is awarded from EPA headquarters for one of 
the programs listed in paragraph (a) of this section, this subpart shall 
apply and the term ``Regional Administrator'' shall mean ``Assistant 
Administrator'.



Sec. 35.502  Definitions of terms.

    Terms are defined as follows when they are used in this regulation:
    Consolidated grant. A single grant made to a recipient consolidating 
funds from more than one environmental grant program. After the award is 
made, recipients must account for grant funds in accordance with the 
funds' original environmental program sources. Consolidated grants are 
not Performance Partnership Grants.
    Environmental program. A program for which EPA awards grants under 
the authorities listed in Sec. 35.501. The grants are subject to the 
requirements of this subpart.
    Federal Indian reservation. 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.
    Funding period. The period of time specified in the grant agreement 
during which the recipient may expend or obligate funds for the purposes 
set forth in the agreement.
    Intertribal Consortium or Consortia. A partnership between two or 
more Tribes that is authorized by the governing bodies of those Tribes 
to apply for and receive assistance under one or more of the programs 
listed in Sec. 35.501.
    National program guidance. Guidance issued by EPA's National Program

[[Page 441]]

Managers for establishing and maintaining effective environmental 
programs. This guidance establishes national goals, objectives, and 
priorities as well as other information to be used in monitoring 
progress. The guidance may also set out specific environmental 
strategies, core performance measures, criteria for evaluating programs, 
and other elements of program implementation.
    Outcome. The environmental result, effect, or consequence that will 
occur from carrying out an environmental program or activity that is 
related to an environmental or programmatic goal or objective. Outcomes 
must be quantitative, and they may not necessarily be achievable during 
a grant funding period. See ``output.''
    Output. An environmental activity or effort and associated work 
products related to an environmental goal or objective that will be 
produced or provided over a period of time or by a specified date. 
Outputs may be quantitative or qualitative but must be measurable during 
a grant funding period. See ``outcome.''
    Performance Partnership Grant. A single grant combining funds from 
more than one environmental program. A Performance Partnership Grant may 
provide for administrative savings or programmatic flexibility to direct 
grant resources where they are most needed to address public health and 
environmental priorities (see also Sec. 35.530). Each Performance 
Partnership Grant has a single, integrated budget and recipients do not 
need to account for grant funds in accordance with the funds' original 
environmental program sources.
    Planning target. The amount of funds that the Regional Administrator 
suggests a grant applicant consider in developing its application, 
including the work plan, for an environmental program.
    Regional supplemental guidance. Guidance to environmental program 
grant applicants prepared by the Regional Administrator, based on the 
national program guidance and specific regional and applicant 
circumstances, for use in preparing a grant application.
    Tribal Environmental Agreement (TEA). A dynamic, strategic planning 
document negotiated by the Regional Administrator and an appropriate 
Tribal official. A Tribal Environmental Agreement may include: Long-term 
and short-term environmental goals, objectives, and desired outcomes 
based on Tribal priorities and available funding. A Tribal Environmental 
Agreement can be a very general or specific document that contains 
budgets, performance measures, outputs and outcomes that could be used 
as part or all of a Performance Partnership Grant work plan, if it meets 
the requirements of section 35.507(b).
    Tribe. Except as otherwise defined in statute or this subpart, 
Indian Tribal Government (Tribe) means: Any Indian Tribe, band, nation, 
or other organized group or community, including any Alaska Native 
village, which is recognized as eligible by the United States Department 
of the Interior for the special services provided by the United States 
to Indians because of their status as Indians.
    Work plan. The document which identifies how and when the applicant 
will use funds from environmental program grants and is the basis for 
management and evaluation of performance under the grant agreement to 
produce specific outputs and outcomes (see 35.507). The work plan must 
be consistent with applicable federal statutes; regulations; circulars; 
executive orders; and EPA delegations, approvals, or authorizations.
    Work plan commitments. The outputs and outcomes associated with each 
work plan component, as established in the grant agreement.
    Work plan component. A negotiated set or group of work plan 
commitments established in the grant agreement. A work plan may have one 
or more work plan components.



Sec. 35.503  Deviation from this subpart.

    EPA will consider and may approve requests for an official deviation 
from non-statutory provisions of this regulation in accordance with 40 
CFR 31.6.



Sec. 35.504  Eligibility of an Intertribal Consortium.

    (a) An Intertribal Consortium is eligible to receive grants under 
the authorities listed in Sec. 35.501 only if the

[[Page 442]]

Consortium demonstrates that all members of the Consortium meet the 
eligibility requirements for the grant and authorize the Consortium to 
apply for and receive assistance in accordance with paragraph (c) of 
this section, except as provided in paragraph (b) of this section.
    (b) An Intertribal Consortium is eligible to receive a grant under 
the Indian Environmental General Assistance Program Act, in accordance 
with Sec. 35.540, if the Consortium demonstrates that:
    (1) A majority of its members meets the eligibility requirements for 
the grant;
    (2) All members that meet the eligibility requirements authorize the 
Consortium to apply for and receive assistance; and
    (3) It has adequate accounting controls to ensure that only members 
that meet the eligibility requirements will benefit directly from the 
grant project and will receive and manage grant funds, and the 
Consortium agrees to a grant condition to that effect.
    (c) An Intertribal Consortium must submit to EPA adequate 
documentation of:
    (1) The existence of the partnership between Indian Tribal 
governments, and
    (2) Authorization of the Consortium by all its members (or in the 
case of the General Assistance Program, all members that meet the 
eligibility requirements for a General Assistance Program grant) to 
apply for and receive the grant(s) for which the Consortium has applied.

                        Preparing an Application



Sec. 35.505  Components of a complete application.

    A complete application for an environmental program grant must:
    (a) Meet the requirements in 40 CFR part 31, subpart B;
    (b) Include a proposed work plan (Sec. 35.507 of this subpart); and
    (c) Specify the environmental program and the amount of funds 
requested.



Sec. 35.506  Time frame for submitting an application.

    An applicant should submit a complete application to EPA at least 60 
days before the beginning of the proposed funding period.



Sec. 35.507  Work plans.

    (a) Bases for negotiating work plans. The work plan is negotiated 
between the applicant and the Regional Administrator and reflects 
consideration of national, regional, and Tribal environmental and 
programmatic needs and priorities.
    (1) Negotiation considerations. In negotiating the work plan, the 
Regional Administrator and applicant will consider such factors as 
national program guidance; any regional supplemental guidance; goals, 
objectives, and priorities proposed by the applicant; other jointly 
identified needs or priorities; and the planning target.
    (2) National program guidance. If an applicant proposes a work plan 
that differs significantly from the goals and objectives, priorities, or 
performance measures in the national program guidance associated with 
the proposed work plan activities, the Regional Administrator must 
consult with the appropriate National Program Manager before agreeing to 
the work plan.
    (3) Use of existing guidance. An applicant should base the grant 
application on the national program guidance in place at the time the 
application is being prepared.
    (b) Work plan requirements. (1) The work plan is the basis for the 
management and evaluation of performance under the grant agreement.
    (2) An approvable work plan must specify:
    (i) The work plan components to be funded under the grant;
    (ii) The estimated work years and estimated funding amounts for each 
work plan component;
    (iii) The work plan commitments for each work plan component, and a 
time frame for their accomplishment;
    (iv) A performance evaluation process and reporting schedule in 
accordance with Sec. 35.515 of this subpart; and
    (v) The roles and responsibilities of the recipient and EPA in 
carrying out the work plan commitments.

[[Page 443]]

    (3) The work plan must be consistent with applicable federal 
statutes; regulations; circulars; executive orders; and delegations, 
approvals, or authorizations.
    (c) Tribal Environmental Agreement as work plan. An applicant may 
use a Tribal Environmental Agreement or a portion of the Tribal 
Environmental Agreement as the work plan or part of the work plan for an 
environmental program grant if the portion of the Tribal Environmental 
Agreement that is to serve as the grant work plan:
    (1) Is clearly identified as the grant work plan and distinguished 
from other portions of the Tribal Environmental Agreement; and
    (2) Meets the requirements in Sec. 35.507(b).



Sec. 35.508  Funding period.

    The Regional Administrator and applicant may negotiate the length of 
the funding period for environmental program grants, subject to 
limitations in appropriations and authorizing statutes.



Sec. 35.509   Consolidated grants.

    Any applicant eligible to receive funds from more than one 
environmental program may submit an application for a consolidated 
grant. For consolidated grants, an applicant prepares a single budget 
and work plan covering all of the environmental programs included in the 
application. The consolidated budget must identify each environmental 
program to be included, the amount of each program's funds, and the 
extent to which each program's funds support each work plan component. 
Recipients of consolidated grants must account for grant funds in 
accordance with the funds' environmental program sources; funds included 
in a consolidated grant from a particular environmental program may be 
used only for that program.

                        EPA Action on Application



Sec. 35.510  Time frame for EPA action.

    The Regional Administrator will review a complete application and 
either approve, conditionally approve, or disapprove it within 60 days 
of receipt. The Regional Administrator will award grants for approved or 
conditionally approved applications if funds are available.



Sec. 35.511  Criteria for approving an application.

    (a) After evaluating other applications as appropriate, the Regional 
Administrator may approve an application upon determining that:
    (1) The application meets the requirements of this subpart and 40 
CFR part 31;
    (2) The application meets the requirements of all applicable federal 
statutes; regulations; circulars; executive orders; and EPA delegations, 
approvals, or authorizations;
    (3) The proposed work plan complies with the requirements of 
Sec. 35.507 of this subpart; and
    (4) The achievement of the proposed work plan is feasible, 
considering such factors as the applicant's existing circumstances, past 
performance, program authority, organization, resources, and procedures.
    (b) If the Regional Administrator finds the application does not 
satisfy the criteria in paragraph (a) of this section, the Regional 
Administrator may either:
    (1) Conditionally approve the application if only minor changes are 
required, with grant conditions necessary to ensure compliance with the 
criteria, or
    (2) Disapprove the application in writing.



Sec. 35.512  Factors considered in determining award amount.

    (a) After approving an application under Sec. 35.511, the Regional 
Administrator will consider such factors as the amount of funds 
available for award to Indian Tribes and Intertribal Consortia, the 
extent to which the proposed work plan is consistent with EPA guidance 
and mutually agreed upon priorities, and the anticipated cost of the 
work plan relative to the proposed work plan components to determine the 
amount of funds to be awarded.
    (b) If the Regional Administrator finds that the requested level of 
funding is not justified, the Regional Administrator will attempt to 
negotiate a

[[Page 444]]

resolution of the issues with the applicant before determining the award 
amount.



Sec. 35.513  Reimbursement for pre-award costs.

    (a) Notwithstanding the requirements of 40 CFR 31.23(a) (Period of 
availability of funds ), and OMB cost principles, EPA may reimburse 
recipients for pre-award costs incurred from the beginning of the 
funding period established in the grant agreement if such costs would 
have been allowable if incurred after the award. Such costs must be 
specifically identified in the grant application EPA approves.
    (b) The applicant incurs pre-award costs at its own risk. EPA is 
under no obligation to reimburse such costs unless they are included in 
an approved grant application.

                         Post-Award Requirements



Sec. 35.514  Amendments and other changes.

    The provisions of 40 CFR 31.30 do not apply to environmental program 
grants awarded under this subpart. The following provisions govern 
amendments and other changes to grant work plans and budgets after the 
work plan is negotiated and a grant awarded.
    (a) Changes requiring prior approval. The recipient needs the 
Regional Administrator's prior written approval to make significant 
post-award changes to work plan commitments. EPA, in consultation with 
the recipient, will document approval of these changes including 
budgeted amounts associated with the revisions.
    (b) Changes requiring approval. Recipients must request, in writing, 
grant amendments for changes requiring increases in environmental 
program grant amounts and extensions of the funding period. Recipients 
may begin implementing a change before the amendment has been approved 
by EPA, but do so at their own risk. If EPA approves the change, EPA 
will issue a grant amendment. EPA will notify the recipient in writing 
if the change is disapproved.
    (c) Changes not requiring approval. Other than those situations 
described in paragraphs (a) and (b) of this section, recipients do not 
need to obtain approval for changes, including changes in grant work 
plans, budgets, or other parts of grant agreements, unless the Regional 
Administrator determines approval requirements should be imposed on a 
specific recipient for a specified period of time.
    (d) Office of Management and Budget (OMB) cost principles. The 
Regional Administrator may waive, in writing, approval requirements for 
specific recipients and costs contained in OMB cost principles.
    (e) Changes in consolidated grants. Recipients of consolidated 
grants under Sec. 35.509 may not transfer funds among environmental 
programs.
    (f) Subgrants. Subgrantees must request required approvals in 
writing from the recipient and the recipient shall approve or disapprove 
the request in writing. A recipient will not approve any work plan or 
budget revision which is inconsistent with the purpose or terms and 
conditions of the federal grant to the recipient. If the revision 
requested by the subgrantee would result in a significant change to the 
recipient's approved grant which requires EPA approval, the recipient 
will obtain EPA's approval before approving the subgrantee's request.



Sec. 35.515  Evaluation of performance.

    (a) Joint evaluation process. The applicant and the Regional 
Administrator will develop a process for jointly evaluating and 
reporting progress and accomplishments under the work plan (see section 
35.507(b)(2)(iv)). A description of the evaluation process and reporting 
schedule must be included in the work plan. The schedule must require 
the recipient to report at least annually and must satisfy the 
requirements for progress reporting under 40 CFR 31.40(b).
    (b) Elements of the evaluation process. The evaluation process must 
provide for:
    (1) A discussion of accomplishments as measured against work plan 
commitments;
    (2) A discussion of the cumulative effectiveness of the work 
performed under all work plan components;
    (3) A discussion of existing and potential problem areas; and

[[Page 445]]

    (4) Suggestions for improvement, including, where feasible, 
schedules for making improvements.
    (c) Resolution of issues. If the joint evaluation reveals that the 
recipient has not made sufficient progress under the work plan, the 
Regional Administrator and the recipient will negotiate a resolution 
that addresses the issues. If the issues cannot be resolved through 
negotiation, the Regional Administrator may take appropriate measures 
under 40 CFR 31.43. The recipient may request review of the Regional 
Administrator's decision under the dispute processes in 40 CFR 31.70.
    (d) Evaluation reports. The Regional Administrator will ensure that 
the required evaluations are performed according to the negotiated 
schedule and that copies of evaluation reports are placed in the 
official files and provided to the recipient.



Sec. 35.516  Direct implementation.

    If funds for an environmental program remain after Tribal and 
Intertribal Consortia environmental program grants for that program have 
been awarded or because no grants were awarded, the Regional 
Administrator may, subject to any limitations contained in appropriation 
acts, use all or part of the funds to support a federal program required 
by law in the absence of an acceptable Tribal program.



Sec. 35.517  Unused funds.

    If funds for an environmental program remain after Tribal and 
Intertribal Consortia grants for that program have been awarded or 
because no grants were awarded, and the Regional Administrator does not 
use the funds under Sec. 35.516 of this subpart, the Regional 
Administrator may award the funds to any eligible Indian Tribe or 
Intertribal Consortium in the region (including a Tribe or Intertribal 
Consortium that has already received funds) for the same environmental 
program or for a Performance Partnership Grant, subject to any 
limitations in appropriation acts.



Sec. 35.518  Unexpended balances.

    Subject to any relevant provisions of law, if a recipient's final 
Financial Status Report shows unexpended balances, the Regional 
Administrator will deobligate the unexpended balances and make them 
available, either to the same recipient or other Tribes or Intertribal 
Consortia in the region, for environmental program grants.

                     Performance Partnership Grants



Sec. 35.530  Purpose of Performance Partnership Grants.

    (a) Purpose of section. Sections 35.530 through 35.538 govern 
Performance Partnership Grants to Tribes and Intertribal Consortia 
authorized in the Omnibus Consolidated Rescissions and Appropriations 
Act of 1996 (Pub. L. 104-134; 110 Stat. 1321, 1321-299 (1996)) and 
Departments of Veterans Affairs and Housing and Urban Development, and 
Independent Agencies Appropriations Act, 1998 (Pub. L. 105-65; 111 Stat. 
1344, 1373 (1997)).
    (b) Purpose of program. Performance Partnership Grants enable Tribes 
and Intertribal Consortia to combine funds from more than one 
environmental program grant into a single grant with a single budget. 
Recipients do not need to account for Performance Partnership Grant 
funds in accordance with the funds' original environmental program 
sources; they need only account for total Performance Partnership Grant 
expenditures. Subject to the requirements of this subpart, the 
Performance Partnership Grant program is designed to:
    (1) Strengthen partnerships between EPA and Tribes and Intertribal 
Consortia through joint planning and priority setting and better 
deployment of resources;
    (2) Provide Tribes and Intertribal Consortia with flexibility to 
direct resources where they are most needed to address environmental and 
public health priorities;
    (3) Link program activities more effectively with environmental and 
public health goals and program outcomes;
    (4) Foster development and implementation of innovative approaches, 
such as pollution prevention, ecosystem management, and community-based 
environmental protection strategies; and
    (5) Provide savings by streamlining administrative requirements.

[[Page 446]]



Sec. 35.532  Requirements summary.

    (a) Applicants and recipients of Performance Partnership Grants must 
meet:
    (1) The requirements in Secs. 35.500 to 35.518 of this subpart which 
apply to all environmental program grants, including Performance 
Partnership Grants; and
    (2) The requirements in Secs. 35.530 to 35.538 of this subpart which 
apply only to Performance Partnership Grants.
    (b) In order to include funds from an environmental program grant 
listed in Sec. 35.501(a) of this subpart in a Performance Partnership 
Grant, applicants must meet the requirements for award of each 
environmental program from which funds are included in the Performance 
Partnership Grant, except the requirements at Secs. 35.548(c), 35.638(b) 
and (c), 35.691, and 35.708 (c), (d), (e), and (g). These requirements 
can be found in this regulation beginning at Sec. 35.540. If the 
applicant is an Intertribal Consortium, each Tribe that is a member of 
the Consortium must meet the requirements.
    (3) Apply for the environmental program grant.
    (4) Obtain the Regional Administrator's approval of the application 
for that grant.
    (c) If funds from an environmental program are not included in a 
Performance Partnership Grant, an applicant is not required to meet the 
eligibility requirements for that environmental program grant in order 
to carry out activities eligible under that program as provided in 
Sec. 35.535.



Sec. 35.533  Programs eligible for inclusion.

    (a) Eligible programs. Except as provided in paragraph (b) of this 
section, the environmental program grants eligible for inclusion in a 
Performance Partnership Grant are listed in Sec. 35.501(a)(2) through 
(9) of this subpart.
    (b) Changes in eligible programs. The Administrator may, in guidance 
or regulation, describe subsequent additions, deletions, or changes to 
the list of environmental programs eligible for inclusion in Performance 
Partnership Grants.



Sec. 35.534  Eligible recipients.

    (a) A Tribe or Intertribal Consortium is eligible for a Performance 
Partnership Grant if the Tribe or each member of the Intertribal 
Consortium is eligible for, and the Tribe or Intertribal Consortium 
receives funding from, more than one of the environmental program grants 
listed in Sec. 35.501(a) in accordance with the requirements for those 
environmental programs.
    (b) For grants to Tribes, a Tribal agency must be designated by a 
Tribal government or other authorized Tribal process to receive grants 
under each of the environmental programs to be combined in the 
Performance Partnership Grant.



Sec. 35.535  Activities eligible for funding.

    (a) Delegated, approved, or authorized activities. A Tribe or 
Intertribal Consortium may use Performance Partnership Grant funds to 
carry out EPA-delegated, EPA-approved, or EPA-authorized activities, 
such as permitting and primary enforcement responsibility only if the 
Tribe or each member of the Intertribal Consortium receives from the 
Regional Administrator the delegations, approvals, or authorizations to 
conduct such activities.
    (b) Other program activities. Except for the limitation in paragraph 
(a) of this section, a Tribe or Intertribal Consortium may use 
Performance Partnership Grant funds for any activity that is eligible 
under the environmental programs listed in Sec. 35.501(a) of this 
subpart, as determined by the Regional Administrator. If an applicant 
proposes a Performance Partnership Grant work plan that differs 
significantly from any of the proposed work plans approved for funding 
that the applicant now proposes to move into a Performance Partnership 
Grant, the Regional Administrator must consult with the appropriate 
National Program Managers before agreeing to the Performance Partnership 
Grant work plan. National Program Managers may expressly waive or modify 
this requirement for consultation in national program guidance. National 
Program Managers also may define in national program guidance 
``significant'' differences from a work plan submitted with a Tribe's or 
a Consortium's application for funds.

[[Page 447]]



Sec. 35.536  Cost share requirements.

    (a) The Performance Partnership Grant cost share shall be the sum of 
the amounts required for each environmental program grant included in 
the Performance Partnership Grant, as determined in accordance with 
paragraphs (b) and (c) of this section, unless waived under paragraph 
(d) of this section.
    (b) For each environmental program grant included in the Performance 
Partnership Grant that has a cost share of five percent or less under 
the provisions of Secs. 35.540 through 35.718, the required cost share 
shall be that identified in Secs. 35.540 through 35.718 of this subpart.
    (c) For each environmental program grant included in the Performance 
Partnership Grant that has a cost share of greater than five percent 
under the provisions of Secs. 35.540 through 35.718 of this subpart, the 
required cost share shall be five percent of the allowable cost of the 
work plan budget for that program. However, after the first two years in 
which a Tribe or Intertribal Consortium receives a Performance 
Partnership Grant, the Regional Administrator must determine through 
objective assessment whether the Tribe or the members of an Intertribal 
Consortium meet socio-economic indicators that demonstrate the ability 
of the Tribe or the Intertribal Consortium to provide a cost share 
greater than five percent. If the Regional Administrator determines that 
the Tribe or the members of Intertribal Consortium meets such 
indicators, then the Regional Administrator shall increase the required 
cost share up to a maximum of 10 percent of the allowable cost of the 
work plan budget for each program with a cost share greater than five 
percent.
    (d) The Regional Administrator may waive the cost share required 
under this section upon request of the Tribe or Intertribal Consortium, 
if, based on an objective assessment of socio-economic indicators, the 
Regional Administrator determines that meeting the cost share would 
impose undue hardship.



Sec. 35.537  Application requirements.

    An application for a Performance Partnership Grant must contain:
    (a) A list of the environmental programs and the amount of funds 
from each program to be combined in the Performance Partnership Grant;
    (b) A consolidated budget;
    (c) A consolidated work plan that addresses each program being 
combined in the grant and which meets the requirements of Sec. 35.507.



Sec. 35.538  Project period.

    If the projected completion date for a work plan commitment funded 
under an environmental program grant that is added to a Performance 
Partnership Grant extends beyond the end of the project period for the 
Performance Partnership Grant, the Regional Administrator and the 
recipient will agree in writing as to how and when the work plan 
commitment will be completed.

          Indian Environmental General Assistance Program (GAP)



Sec. 35.540  Purpose.

    (a) Purpose of section. Sections 35.540 through 35.547 govern grants 
to Tribes and Intertribal Consortia under the Indian Environmental 
General Assistance Program Act of 1992 (42 U.S.C. 4368b.)
    (b) Purpose of program. Indian Environmental General Assistance 
Program grants are awarded to build capacity to administer environmental 
programs for Tribes by providing general assistance to plan, develop, 
and establish environmental protection programs for Tribes.



Sec. 35.542  Definitions. [Reserved]



Sec. 35.543  Eligible recipients.

    The following entities are eligible to receive grants under this 
program:
    (a) Tribes and
    (b) Intertribal Consortia as provided in Sec. 35.504.



Sec. 35.545  Eligible activities.

    Tribes and Intertribal Consortia may use General Assistance Program 
funds

[[Page 448]]

for planning, developing, and establishing environmental protection 
programs and to develop and implement solid and hazardous waste programs 
for Tribes.



Sec. 35.548  Award limitations.

    (a) Each grant awarded under the General Assistance Program shall be 
not less than $75,000. This limitation does not apply to additional 
funds that may become available for award to the same Tribe or 
Intertribal Consortium.
    (b) The Regional Administrator shall not award a grant to a single 
Tribe or Intertribal Consortium of more than 10 percent of the total 
annual funds appropriated under the Act.
    (c) The project period of a General Assistance Program award 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.

                   Air Pollution Control (Section 105)



Sec. 35.570  Purpose.

    (a) Purpose of section. Sections 35.570 through 35.578 govern air 
pollution control grants to Tribes (as defined in section 302(r) of the 
Clean Air Act (CAA)) authorized under sections 105 and 301(d) of the Act 
and Intertribal Consortia.
    (b) Purpose of program. Air pollution control grants are awarded to 
develop and administer programs that prevent and control air pollution 
or implement national air quality standards for air resources within the 
exterior boundaries of the reservation or other areas within the Tribe's 
jurisdiction.
    (c) Associated program regulations. Refer to 40 CFR parts 49, 50, 
51, 52, 58, 60, 61, 62, and 81 for associated program regulations.



Sec. 35.572  Definitions.

    In addition to the definitions in Sec. 35.502, the following 
definitions apply to the Clean Air Act's section 105 grant program:
    Nonrecurrent expenditures are 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 grant 
agreement or an amendment thereto.
    Recurrent expenditures are 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 as such in the grant award or an amendment thereto.



Sec. 35.573  Eligible Tribe.

    (a) A Tribe is eligible to receive section 105 financial assistance 
under Secs. 35.570 through 35.578 if it has demonstrated eligibility to 
be treated as a State under 40 CFR 49.6. An Intertribal Consortium 
consisting of Tribes that have demonstrated eligibility to be treated as 
States under 40 CFR 49.6 is also eligible for financial assistance.
    (b) Tribes that have not made a demonstration under 40 CFR 49.6 and 
Intertribal Consortia consisting of Tribes that have not demonstrated 
eligibility to be treated as States under 40 CFR 49.6 are eligible for 
financial assistance under sections 105 and 302(b)(5) of the Clean Air 
Act.



Sec. 35.575  Maximum federal share.

    (a) For Tribes and Intertribal Consortia eligible under 
Sec. 35.573(a), the Regional Administrator may provide financial 
assistance in an amount up to 95 percent of the approved costs of 
planning, developing, establishing, or improving an air pollution 
control program, and up to 95 percent of the approved costs of 
maintaining that program. After two years from the date of each Tribe's 
or Intertribal Consortium's initial grant award, the Regional 
Administrator will reduce the maximum federal share to 90 percent if the 
Regional Administrator determines that the Tribe or each member of the 
Intertribal Consortium meets certain economic indicators that would 
provide an objective assessment of the Tribe's or each of the 
Intertribal Consortiums member's ability to increase its share. For a 
Tribe or Intertribal Consortium eligible under Sec. 35.573(a), the 
Regional Administrator may increase the maximum federal share if the 
Tribe or Intertribal Consortium can demonstrate in writing to the 
satisfaction

[[Page 449]]

of the Regional Administrator that fiscal circumstances within the Tribe 
or within the member Tribes of the Intertribal Consortium are 
constrained to such an extent that fulfilling the match requirement 
would impose undue hardship.
    (b) For Tribes and Intertribal Consortia eligible under 
Sec. 35.573(b), the Regional Administrator may provide financial 
assistance in an amount up to 60 percent of the approved costs of 
planning, developing, establishing, or improving an air pollution 
control program, and up to 60 percent of the approved costs of 
maintaining that program.
    (c) Revenue collected under a Tribal Title V operating permit 
program may not be used to meet the cost share requirements of this 
section.



Sec. 35.576  Maintenance of effort.

    (a) For Tribes and Intertribal Consortia that are eligible for 
financial assistance under Sec. 35.573(b) of this subpart, the Tribe or 
each of the Intertribal Consortium's members 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.
    (1) In order to award grants in a timely manner each fiscal year, 
the Regional Administrator shall compare a Tribe's or each of the 
Intertribal Consortium's member's proposed expenditure level, as 
detailed in the grant application, to its expenditure level in the 
second preceding fiscal year. When expenditure data for the preceding 
fiscal year is complete, the Regional Administrator shall use this 
information to determine the Tribe's or Intertribal Consortium's 
compliance with its maintenance of effort requirement.
    (2) If expenditure data for the preceding fiscal year shows that a 
Tribe or Intertribal Consortium did not meet the requirements of 
paragraph (a) of this section, the Regional Administrator will take 
action to recover the grant funds for that year.
    (3) The Regional Administrator may grant an exception to 
Sec. 35.576(a) if, after notice and opportunity for a public hearing, 
the Regional Administrator determines that a reduction in expenditures 
is attributable to a non-selective reduction of all the Tribe's or each 
of the Intertribal Consortium's member's programs.
    (b) For Tribes and Intertribal Consortia that are eligible under 
Sec. 35.573(b), the Regional Administrator will not award Section 105 
funds unless the applicant provides assurance that the grant will not 
supplant non-federal funds that would otherwise be available for 
maintaining the Section 105 program.



Sec. 35.578  Award limitation.

    The Regional Administrator will not disapprove an application for, 
or terminate or annul an award of, financial assistance under 
Sec. 35.573 without prior notice and opportunity for a public hearing 
within the appropriate jurisdiction or, where more than one area is 
affected, within one of the affected areas within the jurisdiction

             Water Pollution Control (Sections 106 and 518)



Sec. 35.580  Purpose.

    (a) Purpose of section. Sections 35.580 through 35.588 govern water 
pollution control grants to eligible Tribes and Intertribal Consortia 
(as defined in Sec. 35.502) authorized under sections 106 and 518 of the 
Clean Water Act.
    (b) Purpose of program. Water pollution control grants are awarded 
to assist Tribes and Intertribal Consortia in administering programs for 
the prevention, reduction, and elimination of water pollution, including 
programs for the development and implementation of ground-water 
protection strategies.
    (c) Associated program requirements. Program requirements for water 
quality planning and management activities are provided in 40 CFR part 
130.



Sec. 35.582  Definitions.

    Federal Indian reservation. 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.

[[Page 450]]

    Tribe. Any Indian Tribe, band, group, or community recognized by the 
Secretary of the Interior, exercising governmental authority over a 
federal Indian reservation.



Sec. 35.583  Eligible recipients.

    A Tribe, including an Intertribal Consortium, is eligible to receive 
a section 106 grant if EPA determines that the Indian Tribe or each 
member of the Intertribal Consortium meets the requirements for 
treatment in a manner similar to a State under section 518(e) of the 
Clean Water Act (see 40 CFR 130.6(d)).



Sec. 35.585  Maximum federal share.

    (a) The Regional Administrator may provide up to 95 percent of the 
approved work plan costs for Tribes or Intertribal Consortia 
establishing a section 106 program. Work plan costs include costs of 
planning, developing, establishing, improving or maintaining a water 
pollution control program.
    (b) The Regional Administrator may increase the maximum federal 
share if the Tribe or Intertribal Consortium can demonstrate in writing 
to the satisfaction of the Regional Administrator that fiscal 
circumstances within the Tribe or within each Tribe that is a member of 
an Intertribal Consortium are constrained to such an extent that 
fulfilling the match requirement would impose undue hardship.



Sec. 35.588  Award limitations.

    (a) The Regional Administrator will only award section 106 funds to 
a Tribe or Intertribal Consortium if:
    (1) All monitoring and analysis activities performed by the Tribe or 
Intertribal Consortium meets the applicable quality assurance and 
quality control requirements in 40 CFR 31.45.
    (2) The Tribe or each member of the Intertribal Consortium has 
emergency power authority comparable to that in section 504 of the Clean 
Water Act and adequate contingency plans to implement such authority.
    (3) EPA has not assumed enforcement as defined in section 309(a)(2) 
of the Clean Water Act in the Tribe's or any Intertribal Consortium 
member's jurisdiction.
    (4) The Tribe or Intertribal Consortium agrees to include a 
discussion of how the work performed under section 106 addressed water 
quality problems on Tribal lands in the annual report required under 
Sec. 35.515(d).
    (5) After an initial award of section 106 funds, the Tribe or 
Intertribal Consortium shows satisfactory progress in meeting its 
negotiated work plan commitments.
    (b) A Tribe or Intertribal Consortium is eligible to receive a 
section 106 grant or section 106 grant funds even if the Tribe or each 
of the members of an Intertribal Consortium does not meet the 
requirements of section 106(e)(1) and 106(f)(1) of the Clean Water Act.

        Water Quality Cooperative Agreements (Section 104(b)(3))



Sec. 35.600  Purpose.

    (a) Purpose of section. Sections 35.600 through 35.604 govern Water 
Quality Cooperative Agreements to Tribes and Intertribal Consortia 
authorized under section 104(b)(3) of the Clean Water Act. These 
sections do not govern Water Quality Cooperative Agreements under 
section 104(b)(3) to organizations that do not meet the definitions of 
Tribe or Intertribal Consortium in Sec. 35.502; such cooperative 
agreements generally are subject to the uniform administrative 
requirements for grants at 40 CFR part 30.
    (b) Purpose of program. EPA awards Water Quality Cooperative 
Agreements for investigations, experiments, training, demonstrations, 
surveys, and studies relating to the causes, effects, extent, 
prevention, reduction, and elimination of water pollution. EPA issues 
guidance each year advising EPA regions and headquarters regarding 
appropriate priorities for funding for this program. This guidance may 
include such focus areas as National Pollutant Discharge Elimination 
System watershed permitting, urban wet weather programs, or innovative 
pretreatment programs and biosolids projects.



Sec. 35.603  Competitive process.

    EPA will award water quality cooperative agreement funds through a 
competitive process in accordance with national program guidance. After 
the

[[Page 451]]

competitive process is complete, the recipient can, at its discretion, 
accept the award as a separate cooperative agreement or add the funds to 
a Performance Partnership Grant. If the recipient chooses to add the 
funds to a Performance Partnership Grant, the water quality work plan 
commitments must be included in the Performance Partnership Grant work 
plan.



Sec. 35.604  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of approved 
work plan costs.

         Wetlands Development Grant Program (Section 104(b)(3))



Sec. 35.610  Purpose.

    (a) Purpose of section. Sections 35.610 through 35.615 govern 
wetlands development grants to Tribes and Intertribal Consortia under 
section 104(b)(3) of the Clean Water Act. These sections do not govern 
wetlands development grants under section 104(b)(3) to organizations 
that do not meet the definitions of Tribe or Intertribal Consortium in 
Sec. 35.502; such grants generally are subject to the uniform 
administrative requirements for grants at 40 CFR part 30.
    (b) Purpose of program. EPA awards wetlands development grants to 
assist in the development of new, or the refinement of existing, 
wetlands protection and management programs.



Sec. 35.613  Competitive process.

    Wetlands development grants are awarded on a competitive basis. EPA 
annually establishes a deadline for receipt of grant applications. EPA 
reviews applications and decides which grant projects to fund based on 
criteria established by EPA. After the competitive process is complete, 
the recipient can, at its discretion, accept the award as a wetlands 
development program grant or add the funds to a Performance Partnership 
Grant. If the recipient chooses to add the funds to a Performance 
Partnership Grant, the wetlands development program work plan 
commitments must be included in the Performance Partnership Grant work 
plan.



Sec. 35.615  Maximum federal share.

    EPA may provide up to 75 percent of the approved work plan costs for 
the development or refinement of a wetlands protection and management 
program.

     Nonpoint Source Management Grants (Sections 319(h) and 518(f))



Sec. 35.630  Purpose.

    (a) Purpose of section. Sections 35.630 through 35.638 govern 
nonpoint source management grants to eligible Tribes and Intertribal 
Consortia under sections 319(h) and 518(f) of the Clean Water Act.
    (b) Purpose of program. Nonpoint source management grants may be 
awarded for the implementation of EPA-approved nonpoint source 
management programs, including ground-water quality protection 
activities that will advance the approved nonpoint source management 
program.



Sec. 35.632  Definition.

    Tribe. Any Indian Tribe, band, group, or community recognized by the 
Secretary of the Interior and exercising governmental authority over a 
federal Indian reservation.



Sec. 35.633  Eligibility requirements.

    A Tribe or Intertribal Consortium is eligible to receive a Nonpoint 
Source Management grant if EPA has determined that the Tribe or each 
member of the Intertribal Consortium meets the requirements for 
treatment in a manner similar to a State under section 518(e) of the 
Clean Water Act (see 40 CFR 130.6(d)).



Sec. 35.635  Maximum federal share.

    (a) The Regional Administrator may provide up to 60 percent of the 
approved work plan costs in any fiscal year. The non-federal share of 
costs must be provided from non-federal sources.
    (b) The Regional Administrator may increase the maximum federal 
share if the Tribe or Intertribal Consortium can demonstrate in writing 
to the satisfaction of the Regional Administrator that fiscal 
circumstances within the Tribe or within each Tribe that is

[[Page 452]]

a member of the Intertribal Consortium are constrained to such an extent 
that fulfilling the match requirement would impose undue hardship. In no 
case shall the federal share be greater than 90 percent.



Sec. 35.636  Maintenance of effort.

    To receive funds under section 319 in any fiscal year, a Tribe or 
each member of an Intertribal Consortium must agree that the Tribe or 
each member of the Intertribal Consortium will maintain its aggregate 
expenditures from all other sources for programs for controlling 
nonpoint source pollution and improving the quality of the Tribe's or 
the Intertribal Consortium's members' waters at or above the average 
level of such expenditures in Fiscal Years 1985 and 1986.



Sec. 35.638  Award limitations.

    (a) Available funds. EPA may use no more than the amount authorized 
under the Clean Water Act section 319 and 518(f) for making grants to 
Tribes or Intertribal Consortia.
    (b) Financial assistance to persons. Tribes or Intertribal Consortia 
may use funds for financial assistance to persons only to the extent 
that such assistance is related to the cost of demonstration projects.
    (c) Administrative costs. Administrative costs in the form of 
salaries, overhead, or indirect costs for services provided and charged 
against activities and programs carried out with these funds shall not 
exceed 10 percent of the funds the Tribe or Intertribal Consortium 
receives in any fiscal year. The cost of implementing enforcement and 
regulatory activities, education, training, technical assistance, 
demonstration projects, and technology transfer programs are not subject 
to this limitation.
    (d) The Regional Administrator will not award section 319(h) funds 
to any Tribe or Intertribal Consortium unless:
    (1) Approved assessment report. EPA has approved the Tribe's or each 
member of the Intertribal Consortium's Assessment Report on nonpoint 
sources, prepared in accordance with section 319(a) of the Act;
    (2) Approved Tribe or Intertribal Consortium management program. EPA 
has approved the Tribes's or each member of the Intertribal Consortium's 
management program for nonpoint sources, prepared in accordance with 
section 319(b) of the Act;
    (3) Progress on reducing pollutant loadings. The Regional 
Administrator determines, for a Tribe or Intertribal Consortium that 
received a section 319 funds in the preceding fiscal year, that the 
Tribe or each member of the Intertribal Consortium made satisfactory 
progress in meeting its schedule for achieving implementation of best 
management practices to reduce pollutant loadings from categories of 
nonpoint sources, or particular nonpoint sources, designated in the 
Tribe's or each Consortium member's management program. The Tribe or 
each member of the Intertribal Consortium must develop this schedule in 
accordance with section 319(b)(2) of the Act;
    (4) Activity and output descriptions. The work plan briefly 
describes each significant category of nonpoint source activity and the 
work plan commitments to be produced for each category; and
    (5) Significant watershed projects. For watershed projects whose 
costs exceed $50,000, the work plan contains:
    (i) A brief synopsis of the watershed implementation plan outlining 
the problems to be addressed;
    (ii) The project's goals and objectives; and
    (iii) The performance measures and environmental indicators that 
will be used to evaluate the results of the project.

          Pesticide Cooperative Enforcement (Section 23(a)(1))



Sec. 35.640  Purpose.

    (a) Purpose of section. Sections 35.640 through 35.645 govern 
cooperative agreements to Tribes and Intertribal Consortia authorized 
under section 23(a)(1) of the Federal Insecticide, Fungicide, and 
Rodenticide Act for pesticide enforcement.
    (b) Purpose of program. Cooperative agreements are awarded to assist 
Tribes and Intertribal Consortia in implementing pesticide enforcement 
programs.

[[Page 453]]

    (c) Associated program regulations. Refer to 19 CFR part 12 and 40 
CFR parts 150 through 189 for associated regulations.



Sec. 35.641  Eligible recipients.

    Eligible recipients of pesticide enforcement cooperative agreements 
are Tribes and Intertribal Consortia.



Sec. 35.642  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs.



Sec. 35.645  Basis for allotment.

    The Administrator allots pesticide enforcement cooperative agreement 
funds to each regional office. Regional offices award funds to Tribes 
and Intertribal Consortia based on their programmatic needs and 
applicable EPA guidance.

   Pesticide Applicator Certification and Training (Section 23(a)(2))



Sec. 35.646  Purpose.

    (a) Purpose of section. Sections 35.646 through 35.649 govern 
pesticide applicator certification and training grants to Tribes and 
Intertribal Consortia under section 23(a)(2) of the Federal Insecticide, 
Fungicide, and Rodenticide Act.
    (b) Purpose of program. Pesticide applicator certification and 
training grants are awarded to train and certify restricted use 
pesticide applicators.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR parts 162, 170, and 171.



Sec. 35.649  Maximum federal share.

    The Regional Administrator may provide up to 50 percent of the 
approved work plan costs.

           Pesticide Program Implementation (Section 23(a)(1))



Sec. 35.650  Purpose.

    (a) Purpose of section. Sections 35.650 through 35.659 govern 
Pesticide Program Implementation cooperative agreements to Tribes and 
Intertribal Consortia under section 23(a)(1) of the Federal Insecticide, 
Fungicide, and Rodenticide Act.
    (b) Purpose of program. Cooperative agreements are awarded to assist 
Tribes and Intertribal Consortia to develop and implement pesticide 
programs, including programs that protect workers, ground water, and 
endangered species from pesticide risks and other pesticide management 
programs designated by the Administrator.
    (c) Program regulations. Refer to 40 CFR parts 150 through 189 and 
19 CFR part 12 for associated regulations.



Sec. 35.653  Eligible recipients.

    Eligible recipients of pesticide program implementation cooperative 
agreements are Tribes and Intertribal Consortia.



Sec. 35.655  Basis for allotment.

    The Administrator allots pesticide program implementation 
cooperative agreement funds to each Regional Office. Regional Offices 
award funds to Tribes and Intertribal Consortia based on their 
programmatic needs and applicable EPA guidance.



Sec. 35.659  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs.

               Pollution Prevention Grants (Section 6605)



Sec. 35.660  Purpose.

    (a) Purpose of section. Sections 35.660 through 35.669 govern grants 
to Tribes and Intertribal Consortia under section 6605 of the Pollution 
Prevention Act.
    (b) Purpose of program. Pollution Prevention Grants are awarded to 
promote the use of source reduction techniques by businesses.



Sec. 35.661   Competitive process.

    EPA Regions award Pollution Prevention Grant funds to Tribes and 
Intertribal Consortia through a competitive process in accordance with 
EPA guidance. When evaluating a Tribe's or Intertribal Consortium's 
application, EPA must consider, among other criteria, whether the 
proposed program would:

[[Page 454]]

    (a) Make specific technical assistance available to businesses 
seeking information about source reduction opportunities, including 
funding for experts to provide onsite technical advice to businesses 
seeking assistance in the development of source reduction plans;
    (b) Target assistance to businesses for whom lack of information is 
an impediment to source reduction; and
    (c) Provide training in source reduction techniques. Such training 
may be provided through local engineering schools or other appropriate 
means.



Sec. 35.662  Definitions.

    The following definition applies to the Pollution Prevention Grant 
program and to Secs. 35.660 through 35.669:
    (a) Pollution prevention/source reduction is any practice that:
    (1) Reduces the amount of any hazardous substance, pollutant, or 
contaminant entering any waste stream or otherwise released into the 
environment (including fugitive emissions) prior to recycling, 
treatment, or disposal;
    (2) Reduces the hazards to public health and the environment 
associated with the release of such substances, pollutants, or 
contaminants; or
    (3) Reduces or eliminates the creation of pollutants through:
    (i) Increased efficiency in the use of raw materials, energy, water, 
or other resources; or
    (ii) Protection of national resources by conservation.
    (b) Pollution prevention/source reduction does not include any 
practice which alters the physical, chemical, or biological 
characteristics or the volume of a hazardous substance, pollutant, or 
contaminant through a process or activity which itself is not integral 
to and necessary for the production of a product or the providing of a 
service.



Sec. 35.663  Eligible recipients.

    (a) The Regional Administrator will treat a Tribe or Intertribal 
Consortium as eligible to apply for a Pollution Prevention Grant if the 
Tribe or each member of the Intertribal Consortium:
    (1) Is recognized by the Secretary of the Interior;
    (2) Has an existing government exercising substantial governmental 
duties and powers;
    (3) Has adequate authority to carry out the grant activities; and
    (4) Is reasonably expected to be capable, in the Regional 
Administrator's judgment, of administering the grant program.
    (b) If the Administrator has previously determined that an Indian 
Tribe has met the prerequisites in paragraphs (a)(1) and (2) of this 
section for another EPA program, the Tribe need provide only that 
information unique to the Pollution Prevention Grants program required 
by paragraphs (b)(3) and (4) of this section.



Sec. 35.668  Award limitation.

    If the Pollution Prevention Grant funds are included in a 
Performance Partnership Grant, the Pollution Prevention work plan 
commitments must be included in the Performance Partnership Grant work 
plan.



Sec. 35.669  Maximum federal share.

    The federal share for Pollution Prevention Grants will not exceed 50 
percent of the allowable Tribe and Intertribal Consortium Pollution 
Prevention project cost.

   Public Water System Supervision (Section 1443(a) and Section 1451)



Sec. 35.670  Purpose.

    (a) Purpose of section. Sections 35. 670 through 35.678 govern 
public water system supervision grants to Tribes and Intertribal 
Consortia authorized under sections 1443(a) and 1451 of the Safe 
Drinking Water Act.
    (b) Purpose of program. Public water system supervision grants are 
awarded to carry out public water system supervision programs including 
implementation and enforcement of the requirements of the Act that apply 
to public water systems.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR parts 141, 142, and 143.

[[Page 455]]



Sec. 35.672  Definition.

    Tribe. Any Indian Tribe having a federally recognized governing body 
carrying out substantial governmental duties and powers over any area.



Sec. 35.673  Annual amount reserved by EPA.

    Each year, EPA shall reserve up to seven percent of the public water 
system supervision funds for grants to Tribes and Intertribal Consortia 
under section 1443(a).



Sec. 35.675  Maximum federal share.

    (a) The Regional Administrator may provide up to 75 percent of the 
approved work plan costs.
    (b) The Regional Administrator may increase the maximum federal 
share if the Tribe or Intertribal Consortium can demonstrate in writing 
to the satisfaction of the Regional Administrator that fiscal 
circumstances within the Tribe or Consortium are constrained to such an 
extent that fulfilling the match requirement would impose undue 
hardship, except that the federal share shall not be greater than 90 
percent.



Sec. 35.676  Eligible recipients.

    A Tribe or Intertribal Consortium is eligible to apply for a public 
water system supervision grant if the Tribe or each member of the 
Intertribal Consortium meets the following criteria:
    (a) The Tribe or each member of the Intertribal Consortium is 
recognized by the Secretary of the Interior;
    (b) The Tribe or each member of the Intertribal Consortium has a 
governing body carrying out substantial governmental duties and powers 
over any area;
    (c) The functions to be exercised under the grant are within the 
area of the Tribal government's jurisdiction; and
    (d) The Tribe or each member of the Intertribal Consortium is 
reasonably expected to be capable, in the Regional Administrator's 
judgment, of carrying out the functions to be exercised under the grant.



Sec. 35.678  Award limitations.

    (a) Initial grant. The Regional Administrator will not make an 
initial award unless the Tribe or each member of the Intertribal 
Consortium has:
    (1) Met the requirements of Sec. 35.676 (Eligible recipients);
    (2) Established an approved public water system supervision program 
or agrees to establish an approvable program within three years of the 
initial award and assumed primary enforcement responsibility within this 
period; and
    (3) Agreed to use at least one year of the grant funding to 
demonstrate program capability to implement the requirements found in 40 
CFR 142.10.
    (b) Subsequent grants. The Regional Administrator will not make a 
subsequent grant, after the initial award, unless the Tribe or each 
member of the Intertribal Consortia can demonstrate reasonable progress 
towards assuming primary enforcement responsibility within the three-
year period after initial award. After the three-year period expires, 
the Regional Administrator will not award section 1443(a) funds to an 
Indian Tribe or Intertribal Consortium unless the Tribe or each member 
of the Intertribal Consortia has assumed primary enforcement 
responsibility for the public water system supervision program.

          Underground Water Source Protection (Section 1443(b))



Sec. 35.680  Purpose.

    (a) Purpose of section. Sections 35.680 through 35.688 govern 
underground water source protection grants to Tribes and Intertribal 
Consortia under section 1443(b) of the Safe Drinking Water Act.
    (b) Purpose of program. The Underground Water Source Protection 
grants are awarded to carry out underground water source protection 
programs.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR parts 124, 144, 145, 146, and 147.

[[Page 456]]



Sec. 35.682  Definition.

    Tribe. Any Indian Tribe having a federally recognized governing body 
carrying out substantial governmental duties and powers over any area.



Sec. 35.683  Annual amount reserved by EPA.

    EPA shall reserve up to five percent of the underground water source 
protection funds each year for underground water source protection 
grants to Tribes under section 1443(b) of the Safe Drinking Water Act.



Sec. 35.685  Maximum federal share.

    (a) The Regional Administrator may provide up to 75 percent of the 
approved work plan costs.
    (b) The Regional Administrator may increase the maximum federal 
share if the Tribe or Intertribal Consortium can demonstrate in writing 
to the satisfaction of the Regional Administrator that fiscal 
circumstances within the Tribe or Consortium are constrained to such an 
extent that fulfilling the match requirement would impose undue 
hardship, except that the federal share shall not be greater than 90 
percent.



Sec. 35.686  Eligible recipients.

    A Tribe or Intertribal Consortium is eligible to apply for an 
underground water source protection grant if the Tribe or each member of 
the Intertribal Consortium meets the following criteria:
    (a) The Tribe or each member of the Intertribal Consortium is 
recognized by the Secretary of the Interior;
    (b) The Tribe or each member of the Intertribal Consortium has a 
governing body carrying out substantial governmental duties and powers 
over any area;
    (c) The functions to be exercised under the grant are within the 
area of the Tribal government's jurisdiction; and
    (d) The Tribe or each member of the Intertribal Consortium is 
reasonably expected to be capable, in the Regional Administrator's 
judgment, of carrying out the functions to be exercised under the grant.



Sec. 35.688  Award limitations.

    (a) Initial grants. The Regional Administrator will not make an 
initial award unless the Tribe or each member of the Intertribal 
Consortium has:
    (1) Met the requirements of Sec. 35.676 (Eligible recipients); and
    (2) Established an approved underground water source protection 
program or agrees to establish an approvable program within four years 
of the initial award.
    (b) Subsequent grants. The Regional Administrator will not make a 
subsequent grant, after the initial award, unless the Tribe can 
demonstrate reasonable progress towards assuming primary enforcement 
responsibility within the four-year period after initial award. 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 for the underground water source 
protection program.

                Lead-Based Paint Program (Section 404(g))



Sec. 35.690  Purpose.

    (a) Purpose of section. Sections 35.690 through 35.693 govern grants 
to Tribes and Intertribal Consortia under section 404(g) for the Toxic 
Substances Control Act .
    (b) Purpose of program. Lead-Based Paint Program grants are awarded 
to develop and carry out authorized programs to ensure that individuals 
employed in lead-based paint activities are properly trained; that 
training programs are accredited; and that contractors employed in such 
activities are certified.
    (c) Associated program regulations. Associated program regulations 
are found in 40 CFR part 745.



Sec. 35.691  Funding coordination.

    Recipients must use the Lead-Based Paint program funding in a way 
that complements any related assistance they receive from other federal 
sources for lead-based paint activities.



Sec. 35.693  Eligible recipients.

    (a) The Regional Administrator will treat a Tribe or Intertribal 
Consortium

[[Page 457]]

as eligible to apply for a Lead-Based Paint Program grant if the Tribe 
or each member of the Intertribal Consortium:
    (1) Is recognized by the Secretary of the Interior;
    (2) Has an existing government exercising substantial governmental 
duties and powers;
    (3) Has adequate authority to carry out the grant activities; and
    (4) Is reasonably expected to be capable, in the Regional 
Administrator's judgment, of administering the grant program.
    (b) If the Administrator has previously determined that an Indian 
Tribe has met the prerequisites in paragraphs (a)(1) and (2) of this 
section for another EPA program, the Tribe need provide only that 
information unique to the Lead-Based Paint Program required by 
paragraphs (b)(3) and (4) of this section.

                    Indoor Radon Grants (Section 306)



Sec. 35.700  Purpose.

    (a) Purpose of section. Sections 35.700 through 35.708 govern Indoor 
Radon Grants to Tribes and Intertribal Consortia under section 306 of 
the Toxic Substances Control Act.
    (b) Purpose of program. (1) Indoor Radon Grants are awarded to 
assist Tribes and Intertribal Consortia with the development and 
implementation of programs that assess and mitigate radon and that aim 
at reducing radon health risks. Indoor Radon Grant funds may be used for 
the following eligible activities.
    (i) Survey of radon levels, including special surveys of geographic 
areas or classes of buildings (such as public buildings, school 
buildings, high-risk residential construction types);
    (ii) Development of public information and education materials 
concerning radon assessment, mitigation, and control programs;
    (iii) Implementation of programs to control radon on existing and 
new structures;
    (iv) Purchase, by the Tribe or Intertribal Consortium of radon 
measurement equipment and devices;
    (v) Purchase and maintenance of analytical equipment connected to 
radon measurement and analysis, including costs of calibration of such 
equipment;
    (vi) Payment of costs of Environmental Protection Agency-approved 
training programs related to radon for permanent Tribal employees;
    (vii) Payment of general overhead and program administration costs;
    (viii) Development of a data storage and management system for 
information concerning radon occurrence, levels, and programs;
    (ix) Payment of costs of demonstration of radon mitigation methods 
and technologies as approved by EPA, including Tribal and Intertribal 
Consortia participation in the Environmental Protection Agency Home 
Evaluation Program; and
    (x) A toll-free radon hotline to provide information and technical 
assistance.
    (2) In implementing paragraphs (b)(1)(iv) and (ix) of this section, 
a Tribe or Intertribal Consortia should make every effort, consistent 
with the goals and successful operation of the Tribal Indoor Radon 
program, to give preference to low-income persons.



Sec. 35.702  Basis for allotment.

    (a) The Regional Administrator will allot Indoor Radon Grant funds 
based on the criteria in EPA guidance in accordance with section 306(d) 
and (e) of the Toxic Substances Control Act.
    (b) No Tribe or Intertribal Consortium may receive an Indoor Radon 
Grant in excess of 10 percent of the total appropriated amount made 
available each fiscal year.



Sec. 35.703  Eligible recipients.

    (a) The Regional Administrator will treat a Tribe or Intertribal 
Consortium as eligible to apply for an Indoor Radon Grant if the Tribe 
or each member of the Intertribal Consortium:
    (1) Is recognized by the Secretary of the Interior;
    (2) Has an existing government exercising substantial governmental 
duties and powers;
    (3) Has adequate authority to carry out the grant activities; and,
    (4) Is reasonably expected to be capable, in the Regional 
Administrator's judgment, of administering the grant program.

[[Page 458]]

    (b) If the Administrator has previously determined that a Tribe has 
met the prerequisites in paragraphs (a)(1) and (2) of this section for 
another EPA program, the Tribe need provide only that information unique 
to the radon grant program required by paragraphs (a)(3) and (4) of this 
section.



Sec. 35.705  Maximum federal share.

    The Regional Administrator may provide Tribes and Intertribal 
Consortia up to 75 percent of the approved costs for the development and 
implementation of radon program activities incurred by the Tribe in the 
first year of a grant to the Tribe or Consortium; 60 percent in the 
second year; and 50 percent in the third and each year thereafter.



Sec. 35.708  Award limitations.

    (a) The Regional Administrator shall consult with the Tribal agency 
which has the primary responsibility for radon programs as designated by 
the affected Tribe before including Indoor Radon Grant funds in a 
Performance Partnership Grant with another Tribal agency.
    (b) No grant may be made in any fiscal year to a Tribe or 
Intertribal Consortium which did not satisfactorily implement the 
activities funded by the most recent grant awarded to the Tribe or 
Intertribal Consortium for an Indoor Radon program.
    (c) The costs of radon measurement equipment or devices (see 
Sec. 35.820(b)(1)(iv)) and demonstration of radon mitigation, methods, 
and technologies (see Sec. 35.820(b)(1)(ix)) shall not, in aggregate, 
exceed 50 percent of a Tribe's or Intertribal Consortium's radon grant 
award in a fiscal year.
    (d) The costs of general overhead and program administration (see 
Sec. 35.820(b)(1)(vii)) of an indoor radon grant shall not exceed 25 
percent of the amount of a Tribe's or Intertribal Consortium's Indoor 
Radon Grant in a fiscal year.
    (e) A Tribe or Intertribal Consortium may use funds for financial 
assistance to persons only to the extent such assistance is related to 
demonstration projects or the purchase and analysis of radon measurement 
devices.
    (f) Recipients must provide the Regional Administrator all radon-
related information generated in its grant supported activities, 
including the results of radon surveys, mitigation demonstration 
projects, and risk communication studies.
    (g) Recipients must maintain and make available to the public, a 
list of firms and individuals that have received a passing rating under 
the EPA proficiency rating program under section 305(a)(2) of the Act.
    (h) Funds appropriated for section 306 may not be used to cover the 
costs of federal proficiency rating programs under section 305(a)(2) of 
the Act. Funds appropriated for section 306 and grants awarded under 
section 306 may be used to cover the costs of the Tribal proficiency 
rating programs.

           Toxic Substances Compliance Monitoring (Section 28)



Sec. 35.710  Purpose.

    (a) Purpose of section. Sections 35.710 through 35.715 govern Toxic 
Substances Compliance Monitoring grants to Tribes and Intertribal 
Consortia under section 28 of the Toxic Substances Control Act.
    (b) Purpose of program. Toxic Substances Compliance Monitoring 
grants are awarded to establish and operate compliance monitoring 
programs to prevent or eliminate unreasonable risks to health or the 
environment associated with chemical substances or mixtures on Tribal 
lands with respect to which the Administrator is unable or not likely to 
take action for their prevention or elimination.
    (c) Associated program regulations. Refer to 40 CFR parts 700 
through 799 for associated program regulations.



Sec. 35.712  Competitive process.

    EPA will award Toxic Substances Control Act Compliance Monitoring 
grants to Tribes or Intertribal Consortia through a competitive process 
in accordance with national program guidance.



Sec. 35.713  Eligible recipients.

    (a) The Regional Administrator will treat a Tribe or Intertribal 
Consortium

[[Page 459]]

as eligible to apply for a Toxic Substances Compliance Monitoring grant 
if the Tribe or each member of the Intertribal Consortium:
    (1) Is recognized by the Secretary of the Interior;
    (2) Has an existing government exercising substantial governmental 
duties and powers;
    (3) Has adequate authority to carry out the grant activities; and,
    (4) Is reasonably expected to be capable, in the Regional 
Administrator's judgment, of administering the grant program.
    (b) If the Administrator has previously determined that an Indian 
Tribe has met the prerequisites in paragraphs (a)(1) and (2) of this 
section for another EPA program, the Tribe need provide only that 
information unique to the Toxic Substances Compliance Monitoring grant 
program required by paragraphs (a)(3) and (4) of this section.



Sec. 35.715  Maximum federal share.

    The Regional Administrator may provide up to 75 percent of the 
approved work plan costs.



Sec. 35.718  Award limitation.

    If the Toxic Substances Compliance Monitoring grant funds are 
included in a Performance Partnership Grant, the toxic substances 
compliance monitoring work plan commitments must be included in the 
Performance Partnership Grant work plan.

        Hazardous Waste Management Program Grants (P.L. 105-276)



Sec. 35.720  Purpose.

    (a) Purpose of section. Sections 35.720 through 35.725 govern 
hazardous waste program grants to eligible Tribes and Intertribal 
Consortia under the Departments of Veterans Affairs and Housing and 
Urban Development, and Independent Agencies Appropriations Act, 1999, 
P.L. 105-276, 112 Stat. 2461, 2499; 42 U.S.C. 6908a (1998).
    (b) Purpose of program. Tribal hazardous waste program grants are 
awarded to assist Tribes and Intertribal Consortia in developing and 
implementing programs to manage hazardous waste.



Sec. 35.723  Competitive process.

    EPA will award Tribal hazardous waste program grants to Tribes or 
Intertribal Consortia on a competitive basis in accordance with national 
program guidance. After the competitive process is complete, the 
recipient can, at its discretion, accept the award as a Tribal hazardous 
waste program grant or add the funds to a Performance Partnership Grant. 
If the recipient chooses to add the funds to a Performance Partnership 
Grant, the Tribal hazardous waste program work plan commitments must be 
included in the Performance Partnership Grant work plan.



Sec. 35.725  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs.

         Underground Storage Tanks Program Grants (P.L. 105-276)



Sec. 35.730  Purpose.

    (a) Purpose of section. Section 35.730 through 35.733 govern 
underground storage tank program grants to eligible Tribes and 
Intertribal Consortia under P.L. 105-276.
    (b) Purpose of program. Tribal underground storage tank program 
grants are awarded to assist Tribes and Intertribal Consortia in 
developing and implementing programs to manage underground storage 
tanks.



Sec. 35.731  Eligible recipients.

    Eligible recipients of underground storage tank program grants are 
Tribes and Intertribal Consortia.



Sec. 35.732  Basis for allotment.

    The Administrator allots underground storage tank program grant 
funds to each regional office based on applicable EPA guidance. Regional 
offices award funds to Tribes and Intertribal Consortia based on their 
programmatic needs and applicable EPA guidance.



Sec. 35.735  Maximum federal share.

    The Regional Administrator may provide up to 100 percent of the 
approved work plan costs.

[[Page 460]]

Subparts C-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 Secs. 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 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

[[Page 461]]

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 Secs. 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 
Secs. 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 
Secs. 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.
    (p) Requirements regarding the award and administration of 
subagreements are set forth in Secs. 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:

[[Page 462]]

    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 Secs. 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:

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

[[Page 463]]

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.
    (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

[[Page 464]]

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 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

[[Page 465]]

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 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).

[[Page 466]]

    (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 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

[[Page 467]]

(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 Secs. 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.



Secs. 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 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,

[[Page 468]]

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
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

[[Page 469]]

 
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 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

[[Page 470]]

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
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

[[Page 471]]

 
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 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

[[Page 472]]

 
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)).
    (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

[[Page 473]]

 
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 Secs. 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
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
                                                            ------------

[[Page 474]]

 
      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 comprise mutually exclusive 
classes of facilities and include:
    (A) Category I--Secondary treatment;
    (B) Category II--More stringent treatment;

[[Page 475]]

    (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;
    (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);

[[Page 476]]

    (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 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

[[Page 477]]

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 Secs. 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 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]

[[Page 478]]



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.



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

[[Page 479]]

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 Secs. 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 
Secs. 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 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.

[[Page 480]]

    (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 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

[[Page 481]]

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 
Secs. 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 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

[[Page 482]]

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 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

[[Page 483]]

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:
    (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

[[Page 484]]

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 
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

[[Page 485]]

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 of wastewater with minimal or no conveyance of 
untreated waste water.

[[Page 486]]

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 Secs. 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 Secs. 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. Planning for this comprehensive program shall be 
completed as part of the facility plan. The program shall include as a 
minimum, periodic testing

[[Page 487]]

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;
    (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

[[Page 488]]

    (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 
Secs. 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 Secs. 35.925-10 
and 35.935-12 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

[[Page 489]]

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.



Sec. 35.925-5  Funding and other capabilities.

    That the applicant has:
    (a) Agreed to pay the non-Federal project costs, and

[[Page 490]]

    (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 Secs. 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 Secs. 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 user charge and industrial 
cost recovery systems will be approved in accordance with the 
requirements of Secs. 35.935-13 and 35.935-15.

[[Page 491]]

    (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 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

[[Page 492]]

the Regional Administrator; see Secs. 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 made unless grant assistance for the 
project is awarded.

[43 FR 44049, Sept. 27, 1978, as amended at 44 FR 39340, July 5, 1979]

[[Page 493]]



Sec. 35.925-19  [Reserved]



Sec. 35.925-20  Procurement.

    That the applicant has complied or will comply with the applicable 
provisions of Secs. 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 Secs. 35.925-7(c) and 35.935-16.



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,

[[Page 494]]

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 Secs. 35.938 et seq. and 
35.939, the statutory requirements referenced in Secs. 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.



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

[[Page 495]]

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 
Secs. 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 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).

[[Page 496]]



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 
Secs. 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 contracts between the grantee 
and industrial users which are inconsistent with the requirements of 
section

[[Page 497]]

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 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

[[Page 498]]

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 Secs. 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 
Secs. 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:
    (i) Residential users, including single-family and multifamily 
dwellings,

[[Page 499]]

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 under paragraph (b)(7)(i) 
of this section, such that each member of the class pays a total charge 
for its share

[[Page 500]]

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 Secs. 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 
Federal agencies or installations) which are inconsistent with the 
requirements of section 204(b)(1)(A) of the Act and these regulations.

[[Page 501]]

    (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 Secs. 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: Secs. 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]



Sec. 35.930-2  Grant amount.

    The grant agreement shall set forth the amount of grant assistance. 
The grant amount may not exceed the

[[Page 502]]

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 Secs. 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.



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

[[Page 503]]

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 Secs. 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 504]]

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 Secs. 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 505]]

    (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 Secs. 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 506]]

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 507]]

    (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 
Secs. 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 508]]



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 Secs. 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 Secs. 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 Secs. 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 509]]

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., Secs. 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 Secs. 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 510]]



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 511]]

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 512]]

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 Secs. 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 513]]

    (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 Secs. 35.936, 35.937 and

[[Page 514]]

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 Secs. 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 Secs. 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 Secs. 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 Secs. 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 515]]

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 
Secs. 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 516]]

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 Secs. 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 517]]

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 Secs. 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 518]]

    (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 Secs. 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 519]]

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 Secs. 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 520]]

    (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 521]]



and
    (6) A copy of Secs. 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 522]]

    (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 Secs. 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 523]]

    (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 524]]

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.
    (b) The foregoing retention policy shall be implemented with respect 
to

[[Page 525]]

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 Secs. 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 by paragraph (d) of this section must be 
received by the grantee within 1

[[Page 526]]

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.
    (3) The grantee's determination must be accompanied by a legal 
opinion addressing issues arising under State,

[[Page 527]]

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
    (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.

[[Page 528]]

    (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.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. 35.940  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;

[[Page 529]]

    (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]



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).

[[Page 530]]



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.



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 Secs. 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 Secs. 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 Secs. 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

[[Page 531]]

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 
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 Secs. 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

[[Page 532]]

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.
    (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 to Subpart E of Part 35--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.

[[Page 533]]

    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 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.

[[Page 534]]

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.
    (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

[[Page 535]]

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 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.

[[Page 536]]

    (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             60-70
 populations of 5,000 or less..............................
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 
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

[[Page 537]]

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 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

[[Page 538]]

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 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 
Secs. 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 to Subpart E of Part 35--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,

[[Page 539]]

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 
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:

[[Page 540]]

                            Cs = 
    [Bc(B)=Sc(S)=Pc(P)]Vu

    (3) Model No. 3.--This model is commonly called the ``quantity/
quality formula'':

       Cu = Vc Vu=Bc 
  Bu=Sc Su=Pc Pu

    (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 to Subpart E of Part 35--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
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

[[Page 541]]

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 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

[[Page 542]]

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 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

[[Page 543]]

(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.
    (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

[[Page 544]]

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 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 to Subpart E of Part 35--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.

[[Page 545]]

    (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 
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

[[Page 546]]

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, 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;

[[Page 547]]

    (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 
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

[[Page 548]]

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 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

[[Page 549]]

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.
    (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

[[Page 550]]

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, 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.

[[Page 551]]

    (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)).
    (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 to Subpart E of Part 35--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

[[Page 552]]

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 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

[[Page 553]]

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.
    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 to Subpart E of Part 35--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 Secs. 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

[[Page 554]]

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 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

[[Page 555]]

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).
    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

[[Page 556]]

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. 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.

[[Page 557]]



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 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

[[Page 558]]

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.



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.

[[Page 559]]

    (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 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.

[[Page 560]]

    (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.



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:

[[Page 561]]

    (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;
    (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.

[[Page 562]]

    (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.
    (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.

[[Page 563]]

    (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.
    (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.

[[Page 564]]

    (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 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 to Subpart H of Part 35--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 Secs. 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

[[Page 565]]

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 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

[[Page 566]]

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 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?

[[Page 567]]

    (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?
    (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

[[Page 568]]

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, 1200 Pennsylvania Ave., NW., 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.



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 Secs. 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

[[Page 569]]

    (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.
    (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 
Secs. 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:


[[Page 570]]


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 
(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.

[[Page 571]]

    (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 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 Secs. 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 
Secs. 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.

[[Page 572]]

    (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 Secs. 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 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]

[[Page 573]]



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 
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.

[[Page 574]]

    (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 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

[[Page 575]]

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 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

[[Page 576]]

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 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

[[Page 577]]

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 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 Secs. 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.

[[Page 578]]

    (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 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

[[Page 579]]

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 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

[[Page 580]]

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 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 
Secs. 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

[[Page 581]]

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 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

[[Page 582]]

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;
    (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 
(Secs. 35.2100 through 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 
(Secs. 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

[[Page 583]]

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/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 Secs. 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

[[Page 584]]

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;
    (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]

[[Page 585]]



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 
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:

[[Page 586]]

    (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 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.

[[Page 587]]



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, 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)

[[Page 588]]



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 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 Secs. 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

[[Page 589]]

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 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 Secs. 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;

[[Page 590]]

    (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. 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

[[Page 591]]

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 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 Secs. 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 Secs. 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 Secs. 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

[[Page 592]]

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 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)

[[Page 593]]



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 Secs. 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.



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

[[Page 594]]

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 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: 
Secs. 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: Secs. 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

[[Page 595]]

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 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.

[[Page 596]]

  Appendix A to Subpart I of Part 35--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 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

[[Page 597]]

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.
    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.

[[Page 598]]

    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 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.

[[Page 599]]

    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 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

[[Page 600]]

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 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 to Subpart I of Part 35--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

[[Page 601]]

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.
    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.


[[Page 602]]


                   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
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.

[[Page 603]]

    (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 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

[[Page 604]]

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;
    (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

[[Page 605]]

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 grant applications); and 
Secs. 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

[[Page 606]]

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 
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

[[Page 607]]

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, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
    (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

[[Page 608]]

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 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

[[Page 609]]

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.



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

[[Page 610]]

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.



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

[[Page 611]]

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 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),

[[Page 612]]

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, 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

[[Page 613]]

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);
    (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

[[Page 614]]

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 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: 
Secs. 35.3135(c); 35.3135(d); 35.3135(e); 35.3135(f); and 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.

[[Page 615]]

    (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)



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 
Secs. 35.3160(e) and 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

[[Page 616]]

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 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.

[[Page 617]]

    (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.



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)

[[Page 618]]



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 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 to Subpart K of Part 35--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--Drinking Water State Revolving Funds

    Authority: Section 1452 of the Safe Drinking Water Act, as amended, 
42 U.S.C. 300j-12.

    Source: 65 FR 48299, Aug. 7, 2000, unless otherwise noted.



Sec. 35.3500  Purpose, policy, and applicability.

    (a) This subpart codifies and implements requirements for the 
national Drinking Water State Revolving Fund program under section 1452 
of the Safe Drinking Water Act, as amended in 1996. It applies to States 
(i.e., each of the 50 States and the Commonwealth of Puerto Rico) which 
receive capitalization grants and are authorized to establish a Fund 
under section 1452. The purpose of this subpart is to ensure that each 
State's program is designed and operated in such a manner as to

[[Page 619]]

further the public health protection objectives of the Safe Drinking 
Water Act, promote the efficient use of all funds, and ensure that the 
Fund corpus is available in perpetuity for providing financial 
assistance to public water systems.
    (b) This subpart supplements section 1452 of the Safe Drinking Water 
Act by codifying statutory and program requirements that were published 
in the Final Guidelines for the Drinking Water State Revolving Fund 
program (EPA 816-R-97-005) signed by the Assistant Administrator for 
Water on February 28, 1997, as well as in subsequent policies. This 
subpart also supplements general grant regulations at 40 CFR part 31 
which contain administrative requirements that apply to governmental 
recipients of Environmental Protection Agency (EPA) grants and 
subgrants. EPA will not impose additional major program requirements 
without providing an opportunity for affected parties to comment.
    (c) EPA intends to implement the national Drinking Water State 
Revolving Fund program in a manner that preserves for States a high 
degree of flexibility to operate their programs in accordance with each 
State's unique needs and circumstances. To the maximum extent 
practicable, EPA also intends to administer the financial aspects of the 
national Drinking Water State Revolving Fund program in a manner that is 
consistent with the policies and procedures of the national Clean Water 
State Revolving Fund program established under Title VI of the Clean 
Water Act, as amended, 33 U.S.C. 1381-1387.



Sec. 35.3505  Definitions.

    The following definitions apply to terms used in this subpart:
    Act. The Safe Drinking Water Act (Public Law 93-523), as amended in 
1996 (Public Law 104-182). 42 U.S.C. 300f et seq.
    Administrator. The Administrator of the EPA or an authorized 
representative.
    Allotment. Amount available to a State from funds appropriated by 
Congress to carry out section 1452 of the Act.
    Automated Clearing House (ACH). A Federal payment mechanism that 
transfers cash to recipients of Federal assistance using electronic 
transfers from the Treasury through the Federal Reserve System.
    Binding commitment. A legal obligation by the State to an assistance 
recipient that defines the terms for assistance from the Fund.
    Capitalization grant. An award by EPA of funds to a State for 
purposes of capitalizing that State's Fund and for other purposes 
authorized in section 1452 of the Act.
    Cash draw. The transfer of cash from the Treasury through the ACH to 
the DWSRF program. Upon a State's request for a cash draw, the Treasury 
will transfer funds to the DWSRF program account established in the 
State's bank.
    CWSRF program. Each State's clean water state revolving fund program 
authorized under Title VI of the Clean Water Act, as amended, 33 U.S.C. 
1381-1387.
    Disadvantaged community. The entire service area of a public water 
system that meets affordability criteria established by the State after 
public review and comment.
    Disbursement. The transfer of cash from the DWSRF program account 
established in the State's bank to an assistance recipient.
    DWSRF program. Each State's drinking water state revolving fund 
program authorized under section 1452 of the Act, as amended, 42 U.S.C. 
300j-12. This term includes the Fund and set-asides.
    Fund. A revolving account into which a State deposits DWSRF program 
funds (e.g., capitalization grants, State match, repayments, net bond 
proceeds, interest earnings, etc.) for the purposes of providing loans 
and other types of assistance for drinking water infrastructure 
projects.
    Intended Use Plan (IUP). A document prepared annually by a State, 
after public review and comment, which identifies intended uses of all 
DWSRF program funds and describes how those uses support the overall 
goals of the DWSRF program.
    Net bond proceeds. The funds raised from the sale of the bonds minus 
issuance costs (e.g., the underwriting

[[Page 620]]

discount, underwriter's legal counsel fees, bond counsel fee, and other 
costs incidental to the bond issuance).
    Payment. An action taken by EPA to increase the amount of funds 
available for cash draw through the ACH. A payment is not a transfer of 
cash to the State, but an authorization by EPA to make capitalization 
grant funds available for transfer to a State after the State submits a 
cash draw request.
    Public water system. A system as defined in 40 CFR 141.2. A public 
water system is either a ``community water system'' or a ``noncommunity 
water system'' as defined in 40 CFR 141.2.
    Regional Administrator (RA). The Administrator of the appropriate 
Regional Office of the EPA or an authorized representative of the 
Regional Administrator.
    Set-asides. State and local activities identified in sections 
1452(g)(2) and (k) of the Act for which a portion of a capitalization 
grant may be used.
    Small system. A public water system that regularly serves 10,000 or 
fewer persons.
    State. Each of the 50 States and the Commonwealth of Puerto Rico, 
which receive capitalization grants and are authorized to establish a 
Fund under section 1452 of the Act.



Sec. 35.3510  Establishment of the DWSRF program.

    (a) General. To be eligible to receive a capitalization grant, a 
State must establish a Fund and comply with the other requirements of 
section 1452 of the Act and this subpart.
    (b) Administration. Capitalization grants must be awarded to an 
agency of the State that is authorized to enter into capitalization 
grant agreements with EPA, accept capitalization grant awards made under 
section 1452 of the Act, and otherwise manage the Fund in accordance 
with the requirements and objectives of the Act and this subpart. The 
State agency that is awarded the capitalization grant (i.e., grantee) is 
accountable for the use of the funds provided in the capitalization 
grant agreement under general grant regulations at 40 CFR part 31.
    (1) The authority to establish assistance priorities and to carry 
out oversight and related activities of the DWSRF program, other than 
financial administration of the Fund, must reside with the State agency 
having primary responsibility for administration of the State's public 
water system supervision (PWSS) program (i.e., primacy) after 
consultation with other appropriate State agencies.
    (2) If a State is eligible to receive a capitalization grant but 
does not have primacy, the Governor will determine which State agency 
will have the authority to establish priorities for financial assistance 
from the Fund. Evidence of the Governor's determination must be included 
with the capitalization grant application.
    (3) If more than one State agency participates in implementation of 
the DWSRF program, the roles and responsibilities of each agency must be 
described in a Memorandum of Understanding or interagency agreement.
    (c) Combined financial administration. A State may combine the 
financial administration of the Fund with the financial administration 
of any other revolving fund established by the State if otherwise not 
prohibited by State law under which the Fund was established. A State 
must assure that all monies in the Fund, including capitalization 
grants, State match, net bond proceeds, loan repayments, and interest 
are separately accounted for and used solely for the purposes specified 
in section 1452 of the Act and this subpart. Funds available from the 
administration and technical assistance set-aside may not be used for 
combined financial administration of any other revolving fund.
    (d) Use of funds. (1) Assistance provided to a public water system 
from the DWSRF program may be used only for expenditures that will 
facilitate compliance with national primary drinking water regulations 
applicable under section 1412 or otherwise significantly further the 
public health protection objectives of the Act.
    (2) The inability or failure of any public water system to receive 
assistance from the DWSRF program, or any delay in obtaining assistance, 
does not alter the obligation of the system to comply in a timely manner 
with all applicable drinking water standards and requirements of section 
1452 of the Act.

[[Page 621]]



Sec. 35.3515  Allotment and withholdings of funds.

    (a) Allotment--(1) General. Each State will receive a minimum of one 
percent of the funds available for allotment to all of the States.
    (2) Allotment formula. Funds available to States from fiscal year 
1998 appropriations and subsequent appropriations are allotted according 
to a formula that reflects the infrastructure needs of public water 
systems identified in the most recent Needs Survey submitted in 
accordance with section 1452(h) of the Act.
    (3) Period of availability. Funds are available for obligation to 
States during the fiscal year in which they are authorized and during 
the following fiscal year. The amount of any allotment not obligated to 
a State by EPA at the end of this period of availability will be 
reallotted to eligible States based on the formula originally used to 
allot these funds, except that the Administrator may reserve up to 10 
percent of any funds available for reallotment to provide additional 
assistance to Indian Tribes. In order to be eligible to receive 
reallotted funds, a State must have been obligated all funds it is 
eligible to receive from EPA during the period of availability.
    (4) Loss of primacy. The following provisions do not apply to any 
State that did not have primacy as of August 6, 1996:
    (i) A State may not receive a capitalization grant from allotments 
that have been made if the State had primacy and subsequently loses 
primacy.
    (ii) For a State that loses primacy, the Administrator may reserve 
funds from the State's allotment for use by EPA to administer primacy in 
that State. The balance of the funds not used by EPA to administer 
primacy will be reallotted to the other States.
    (iii) A State will be eligible for future allotments from funds 
appropriated in the next fiscal year after primacy is restored.
    (b) Withholdings--(1) General. EPA will withhold funds under each of 
the following provisions:
    (i) Capacity development authority. EPA will withhold 20 percent of 
a State's allotment from any State that has not obtained the legal 
authority or other means to ensure that all new community water systems 
and new nontransient, noncommunity water systems commencing operations 
after October 1, 1999, demonstrate technical, financial, and managerial 
capacity with respect to each national primary drinking water regulation 
in effect, or likely to be in effect, on the date of commencement of 
operations. The determination of withholding will be based on an 
assessment of the status of the State program as of October 1 of the 
fiscal year for which the funds were allotted.
    (ii) Capacity development strategy. EPA will withhold funds from any 
State unless the State is developing and implementing a strategy to 
assist public water systems in acquiring and maintaining technical, 
financial, and managerial capacity. The amount of a State's allotment 
that will be withheld is 10 percent for fiscal year 2001, 15 percent for 
fiscal year 2002, and 20 percent for each subsequent fiscal year. The 
determination of withholding will be based on an assessment of the 
status of the State strategy as of October 1 of the fiscal year for 
which the funds were allotted. Decisions of a State regarding any 
particular public water system as part of a capacity development 
strategy are not subject to review by EPA and may not serve as a basis 
for withholding funds.
    (iii) Operator certification program. Beginning on February 5, 2001, 
EPA will withhold 20 percent of a State's allotment unless the State has 
adopted and is implementing a program for certifying operators of 
community and nontransient, noncommunity public water systems that meets 
the requirements of section 1419 of the Act. The determination of 
withholding will be based on an assessment of the status of the State 
program for each fiscal year.
    (2) Maximum withholdings. The maximum amount of funds that will be 
withheld if a State fails to meet the requirements of both the capacity 
development authority and the capacity development strategy provisions 
is 20 percent of the allotment in any fiscal year. The maximum amount of 
funds that will be withheld if a State fails to meet the requirements of 
the operator

[[Page 622]]

certification program provision and either the capacity development 
authority provision or the capacity development strategy provision is 40 
percent of the allotment in any fiscal year.
    (3) Reallotment of withheld funds. The Administrator will reallot 
withheld funds to eligible States based on the formula originally used 
to allot these funds. In order to be eligible to receive reallotted 
funds under the withholding provisions, a State must have been obligated 
all funds it is eligible to receive from EPA during the period of 
availability. A State that has funds withheld under any one of the 
withholding provisions in paragraphs (b)(1)(i) through (b)(1)(iii) of 
this section is not eligible to receive reallotted funds made available 
by that provision.
    (4) Termination of withholdings. A withholding will cease to apply 
to funds appropriated in the next fiscal year after a State complies 
with the specific provision under which funds were withheld.



Sec. 35.3520  Systems, projects, and project-related costs eligible for 
assistance from the Fund.

    (a) Eligible systems. Assistance from the Fund may only be provided 
to:
    (1) Privately-owned and publicly-owned community water systems and 
non-profit noncommunity water systems.
    (2) Projects that will result in the creation of a community water 
system in accordance with paragraph (b)(2)(vi) of this section.
    (3) Systems referred to in section 1401(4)(B) of the Act for the 
purposes of point of entry or central treatment under section 
1401(4)(B)(i)(III).
    (b) Eligible projects--(1) General. Projects that address present or 
prevent future violations of health-based drinking water standards are 
eligible for assistance. These include projects needed to maintain 
compliance with existing national primary drinking water regulations for 
contaminants with acute and chronic health effects. Projects to replace 
aging infrastructure are eligible for assistance if they are needed to 
maintain compliance or further the public health protection objectives 
of the Act.
    (2) Only the following project categories are eligible for 
assistance from the Fund:
    (i) Treatment. Examples of projects include installation or upgrade 
of facilities to improve the quality of drinking water to comply with 
primary or secondary standards and point of entry or central treatment 
under section 1401(4)(B)(i)(III) of the Act.
    (ii) Transmission and distribution. Examples of projects include 
installation or replacement of transmission and distribution pipes to 
improve water pressure to safe levels or to prevent contamination caused 
by leaks or breaks in the pipes.
    (iii) Source. Examples of projects include rehabilitation of wells 
or development of eligible sources to replace contaminated sources.
    (iv) Storage. Examples of projects include installation or upgrade 
of eligible storage facilities, including finished water reservoirs, to 
prevent microbiological contaminants from entering a public water 
system.
    (v) Consolidation. Eligible projects are those needed to consolidate 
water supplies where, for example, a supply has become contaminated or a 
system is unable to maintain compliance for technical, financial, or 
managerial reasons.
    (vi) Creation of new systems. Eligible projects are those that, upon 
completion, will create a community water system to address existing 
public health problems with serious risks caused by unsafe drinking 
water provided by individual wells or surface water sources. Eligible 
projects are also those that create a new regional community water 
system by consolidating existing systems that have technical, financial, 
or managerial difficulties. Projects to address existing public health 
problems associated with individual wells or surface water sources must 
be limited in scope to the specific geographic area affected by 
contamination. Projects that create new regional community water systems 
by consolidating existing systems must be limited in scope to the 
service area of the systems being consolidated. A project

[[Page 623]]

must be a cost-effective solution to addressing the problem. A State 
must ensure that the applicant has given sufficient public notice to 
potentially affected parties and has considered alternative solutions to 
addressing the problem. Capacity to serve future population growth 
cannot be a substantial portion of a project.
    (c) Eligible project-related costs. In addition to costs needed for 
the project itself, the following project-related costs are eligible for 
assistance from the Fund:
    (1) Costs for planning and design and associated pre-project costs. 
A State that makes a loan for only planning and design is not required 
to provide assistance for completion of the project.
    (2) Costs for the acquisition of land only if needed for the 
purposes of locating eligible project components. The land must be 
acquired from a willing seller.
    (3) Costs for restructuring systems that are in significant 
noncompliance with any national primary drinking water regulation or 
variance or that lack the technical, financial, and managerial 
capability to ensure compliance with the requirements of the Act, unless 
the systems are ineligible under paragraph (d)(2) or (d)(3) of this 
section.
    (d) Ineligible systems. Assistance from the Fund may not be provided 
to:
    (1) Federally-owned public water systems and for-profit noncommunity 
water systems.
    (2) Systems that lack the technical, financial, and managerial 
capability to ensure compliance with the requirements of the Act, unless 
the assistance will ensure compliance and the owners or operators of the 
systems agree to undertake feasible and appropriate changes in 
operations to ensure compliance over the long-term.
    (3) Systems that are in significant noncompliance with any national 
primary drinking water regulation or variance, unless:
    (i) The purpose of the assistance is to address the cause of the 
significant noncompliance and will ensure that the systems return to 
compliance; or
    (ii) The purpose of the assistance is unrelated to the cause of the 
significant noncompliance and the systems are on enforcement schedules 
(for maximum contaminant level and treatment technique violations) or 
have compliance plans (for monitoring and reporting violations) to 
return to compliance.
    (e) Ineligible projects. The following projects are ineligible for 
assistance from the Fund:
    (1) Dams or rehabilitation of dams.
    (2) Water rights, except if the water rights are owned by a system 
that is being purchased through consolidation as part of a capacity 
development strategy.
    (3) Reservoirs or rehabilitation of reservoirs, except for finished 
water reservoirs and those reservoirs that are part of the treatment 
process and are on the property where the treatment facility is located.
    (4) Projects needed primarily for fire protection.
    (5) Projects needed primarily to serve future population growth. 
Projects must be sized only to accommodate a reasonable amount of 
population growth expected to occur over the useful life of the 
facility.
    (6) Projects that have received assistance from the national set-
aside for Indian Tribes and Alaska Native Villages under section 1452(i) 
of the Act.
    (f) Ineligible project-related costs. The following project-related 
costs are ineligible for assistance from the Fund:
    (1) Laboratory fees for routine compliance monitoring.
    (2) Operation and maintenance expenses.



Sec. 35.3525  Authorized types of assistance from the Fund.

    A State may only provide the following types of assistance from the 
Fund:
    (a) Loans. (1) A State may make loans at or below the market 
interest rate, including zero interest rate loans. Loans may be awarded 
only if:
    (i) An assistance recipient begins annual repayment of principal and 
interest no later than one year after project completion. A project is 
completed when operations are initiated or are capable of being 
initiated.
    (ii) A recipient completes loan repayment no later than 20 years 
after

[[Page 624]]

project completion except as provided in paragraph (b)(3) of this 
section.
    (iii) A recipient establishes a dedicated source of revenue for 
repayment of the loan which is consistent with local ordinances and 
State laws or, for privately-owned systems, a recipient demonstrates 
that there is adequate security to assure repayment of the loan.
    (2) A State may include eligible project reimbursement costs within 
loans if:
    (i) A system received approval, authorization to proceed, or any 
similar action by a State prior to initiation of project construction 
and the construction costs were incurred after such State action; and
    (ii) The project met all of the requirements of this subpart and was 
on the State's fundable list, developed using a priority system approved 
by EPA. A project on the comprehensive list which is funded when a 
project on the fundable list is bypassed using the State's bypass 
procedures in accordance with Sec. 35.3555(c)(2)(ii) may be eligible for 
reimbursement of costs incurred after the system has been informed that 
it will receive funding.
    (3) A State may include eligible planning and design and other 
associated pre-project costs within loans regardless of when the costs 
were incurred.
    (4) All payments of principal and interest on each loan must be 
credited to the Fund.
    (5) Of the total amount available for assistance from the Fund each 
year, a State must make at least 15 percent available solely for 
providing loan assistance to small systems, to the extent such funds can 
be obligated for eligible projects. A State that provides assistance in 
an amount that is greater than 15 percent of the available funds in one 
year may credit the excess toward the 15 percent requirement in future 
years.
    (6) A State may provide incremental assistance for a project (e.g., 
for a particularly large, expensive project) over a period of years.
    (b) Assistance to disadvantaged communities. (1) A State may provide 
loan subsidies (e.g., loans which include principal forgiveness, 
negative interest rate loans) to benefit communities meeting the State's 
definition of ``disadvantaged'' or which the State expects to become 
``disadvantaged'' as a result of the project. Loan subsidies in the form 
of reduced interest rate loans that are at or above zero percent do not 
fall under the 30 percent allowance described in paragraph (b)(2) of 
this section.
    (2) A State may take an amount equal to no more than 30 percent of 
the amount of a particular fiscal year's capitalization grant to provide 
loan subsidies to disadvantaged communities. If a State does not take 
the entire 30 percent allowance associated with a particular fiscal 
year's capitalization grant, it cannot reserve the authority to take the 
remaining balance of the allowance from future capitalization grants. In 
addition, a State must:
    (i) Indicate in the Intended Use Plan (IUP) the amount of the 
allowance it is taking for loan subsidies;
    (ii) Commit capitalization grant and required State match dollars 
taken for loan subsidies in accordance with the binding commitment 
requirements in Sec. 35.3550(e); and
    (iii) Commit any other dollars (e.g., principal and interest 
repayments, investment earnings) taken for loan subsidies to projects 
over the same time period during which binding commitments are made for 
the capitalization grant from which the allowance was taken.
    (3) A State may extend the term for a loan to a disadvantaged 
community, provided that a recipient completes loan repayment no later 
than 30 years after project completion and the term of the loan does not 
exceed the expected design life of the project.
    (c) Refinance or purchase of local debt obligations--(1) General. A 
State may buy or refinance local debt obligations of municipal, 
intermunicipal, or interstate agencies where the debt obligation was 
incurred and the project was initiated after July 1, 1993. Projects must 
have met the eligibility requirements under section 1452 of the Act and 
this subpart to be eligible for refinancing. Privately-owned systems are 
not eligible for refinancing.
    (2) Multi-purpose debt. If the original debt for a project was in 
the form of a

[[Page 625]]

multi-purpose bond incurred for purposes in addition to eligible 
purposes under section 1452 of the Act and this subpart, a State may 
provide refinancing only for the eligible portion of the debt, not the 
entire debt.
    (3) Refinancing and State match. If a State has credited repayments 
of loans made under a pre-existing State loan program as part of its 
State match, the State cannot also refinance the projects under the 
DWSRF program. If the State has already counted certain projects toward 
its State match which it now wants to refinance, the State must provide 
replacement funds for the amounts previously credited as match.
    (d) Purchase insurance or guarantee for local debt obligations. A 
State may provide assistance by purchasing insurance or guaranteeing a 
local debt obligation to improve credit market access or to reduce 
interest rates. Assistance of this type is limited to local debt 
obligations that are undertaken to finance projects eligible for 
assistance under section 1452 of the Act and this subpart.
    (e) Revenue or security for Fund debt obligations (leveraging). A 
State may use Fund assets as a source of revenue or security for the 
payment of principal and interest on revenue or general obligation bonds 
issued by the State in order to increase the total amount of funds 
available for providing assistance. The net proceeds of the sale of the 
bonds must be deposited into the Fund and must be used for providing 
loans and other assistance to finance projects eligible under section 
1452 of the Act and this subpart.



Sec. 35.3530  Limitations on uses of the Fund.

    (a) Earn interest. A State may earn interest on monies deposited 
into the Fund prior to disbursement of assistance (e.g., on reserve 
accounts used as security or guarantees). Monies deposited must not 
remain in the Fund primarily to earn interest. Amounts not required for 
current obligation or expenditure must be invested in interest bearing 
obligations.
    (b) Program administration. A State may not use monies deposited 
into the Fund to cover its program administration costs. In addition to 
using the funds available from the administration and technical 
assistance set-aside under Sec. 35.3535(b), a State may use the 
following methods to cover its program administration and other program 
costs.
    (1) A State may use the proceeds of bonds guaranteed by the Fund to 
absorb expenses incurred issuing the bonds. The net proceeds of the 
bonds must be deposited into the Fund.
    (2) A State may assess fees on an assistance recipient which are 
paid directly by the recipient and are not included as principal in a 
loan as allowed in paragraph (b)(3) of this section. These fees, which 
include interest earned on fees, must be deposited into the Fund or into 
an account outside of the Fund. If the fees are deposited into the Fund, 
they are subject to the authorized uses of the Fund. If the fees are 
deposited into an account outside of the Fund, they must be used for 
program administration, other purposes for which capitalization grants 
can be awarded under section 1452, State match under sections 1452(e) 
and (g)(2) of the Act, or combined financial administration of the DWSRF 
program and CWSRF program Funds where the programs are administered by 
the same State agency.
    (3) A State may assess fees on an assistance recipient which are 
included as principal in a loan. These fees, which include interest 
earned on fees, must be deposited into the Fund or into an account 
outside of the Fund. If the fees are deposited into the Fund, they are 
subject to the authorized uses of the Fund. If the fees are deposited 
into an account outside of the Fund, they must be used for program 
administration or other purposes for which capitalization grants can be 
awarded under section 1452. Fees included as principal in a loan cannot 
be used for State match under sections 1452(e) and (g)(2) of the Act or 
combined financial administration of the DWSRF program and CWSRF program 
Funds. Additionally, fees included as principal in a loan:
    (i) Cannot be assessed on a disadvantaged community which receives a 
loan subsidy provided from the 30 percent allowance in 
Sec. 35.3525(b)(2);

[[Page 626]]

    (ii) Cannot cause the effective rate of a loan (which includes both 
interest and fees) to exceed the market rate; and
    (iii) Cannot be assessed if the effective rate of a loan could 
reasonably be expected to cause a system to fail to meet the technical, 
financial, and managerial capability requirements under section 1452 of 
the Act.
    (c) Transfers. The Governor of a State, or a State official acting 
pursuant to authorization from the Governor, may transfer an amount 
equal to 33 percent of a fiscal year's DWSRF program capitalization 
grant to the CWSRF program or an equivalent amount from the CWSRF 
program to the DWSRF program. The following conditions apply:
    (1) When a State initially decides to transfer funds:
    (i) The State's Attorney General, or someone designated by the 
Attorney General, must sign or concur in a certification for the DWSRF 
program and the CWSRF program that State law permits the State to 
transfer funds; and
    (ii) The Operating Agreements or other parts of the capitalization 
grant agreements for the DWSRF program and the CWSRF program must be 
amended to detail the method the State will use to transfer funds.
    (2) A State may not use the transfer provision to acquire State 
match for either program or use transferred funds to secure or repay 
State match bonds.
    (3) Funds may be transferred after one year has elapsed since a 
State established its Fund (i.e., one year after the State has received 
its first DWSRF program capitalization grant for projects), and may 
include an amount equal to the allowance associated with its fiscal year 
1997 capitalization grant.
    (4) A State may reserve the authority to transfer funds in future 
years.
    (5) Funds may be transferred on a net basis between the DWSRF 
program and CWSRF program, provided that the 33 percent transfer 
allowance associated with DWSRF program capitalization grants received 
is not exceeded.
    (6) Funds may not be transferred or reserved after September 30, 
2001.
    (d) Cross-collateralization. A State may combine the Fund assets of 
the DWSRF program and CWSRF program as security for bond issues to 
enhance the lending capacity of one or both of the programs. The 
following conditions apply:
    (1) When a State initially decides to cross-collateralize:
    (i) The State's Attorney General, or someone designated by the 
Attorney General, must sign or concur in a certification for the DWSRF 
program and the CWSRF program that State law permits the State to cross-
collateralize the Fund assets of the DWSRF program and CWSRF program; 
and
    (ii) The Operating Agreements or other parts of the capitalization 
grant agreements for the DWSRF program and the CWSRF program must be 
amended to detail the method the State will use to cross-collateralize.
    (2) The proceeds generated by the issuance of bonds must be 
allocated to the purposes of the DWSRF program and CWSRF program in the 
same proportion as the assets from the Funds that are used as security 
for the bonds. A State must demonstrate at the time of bond issuance 
that the proportionality requirements have been or will be met. If a 
default should occur, and the Fund assets from one program are used for 
debt service in the other program to cure the default, the security 
would no longer need to be proportional.
    (3) A State may not combine the Fund assets of the DWSRF program and 
the CWSRF program as security for bond issues to acquire State match for 
either program or use the assets of one program to secure match bonds 
for the other program.
    (4) The debt service reserves for the DWSRF program and the CWSRF 
program must be accounted for separately.
    (5) Loan repayments must be made to the respective program from 
which the loan was made.



Sec. 35.3535  Authorized set-aside activities.

    (a) General. (1) A State may use a portion of its capitalization 
grants for the set-aside categories described in paragraphs (b) through 
(e) of this section, provided that the amount of set-aside funding does 
not exceed the ceilings specified in this section.

[[Page 627]]

    (2) A State may not use set-aside funds for those projects or 
project-related costs listed in Sec. 35.3520(b), (c), (e), and (f), with 
the following exceptions:
    (i) Project planning and design costs for small systems; and
    (ii) Costs for restructuring a system as part of a capacity 
development strategy.
    (b) Administration and technical assistance. A State may use up to 4 
percent of its allotment to cover the reasonable costs of administering 
the DWSRF program and to provide technical assistance to public water 
systems.
    (c) Small systems technical assistance. A State may use up to 2 
percent of its allotment to provide technical assistance to small 
systems. A State may use these funds for activities such as supporting a 
State technical assistance team or contracting with outside 
organizations or other parties to provide technical assistance to small 
systems.
    (d) State program management. A State may use up to 10 percent of 
its allotment for State program management activities.
    (1) This set-aside may only be used for the following activities:
    (i) To administer the State PWSS program;
    (ii) To administer or provide technical assistance through source 
water protection programs (including a Class V Underground Injection 
Control Program), except for enforcement actions;
    (iii) To develop and implement a capacity development strategy; and
    (iv) To develop and implement an operator certification program.
    (2) Match requirement. A State must provide a dollar for dollar 
match for expenditures made under this set-aside.
    (i) The match must be provided at the time of the capitalization 
grant award or in the same year that funds for this set-aside are 
expected to be expended in accordance with a workplan approved by EPA.
    (ii) A State is authorized to use the amount of State funds it 
expended on its PWSS program in fiscal year 1993 (including PWSS match) 
as a credit toward meeting its match requirement. The value of this 
credit can be up to, but not greater than, 50 percent of the amount of 
match that is required. After determining the value of the credit that 
it is eligible to receive, a State must provide the additional funds 
necessary to meet the remainder of the match requirement. The source of 
these additional funds can be State funds (excluding PWSS match) or 
documented in-kind services.
    (e) Local assistance and other State programs. A State may use up to 
15 percent of its capitalization grant to assist in the development and 
implementation of local drinking water protection initiatives and other 
State programs. No more than 10 percent of the capitalization grant 
amount can be used for any one authorized activity.
    (1) This set-aside may only be used for the following activities:
    (i) A State may provide assistance only in the form of loans to 
community water systems and non-profit noncommunity water systems to 
acquire land or conservation easements from willing sellers or grantors. 
A system must demonstrate how the purchase of land or easements will 
protect the source water of the system from contamination and ensure 
compliance with national primary drinking water regulations. A State 
must develop a priority setting process for determining what parcels of 
land or easements to purchase or use an established priority setting 
process that meets the same goals. A State must seek public review and 
comment on its priority setting process and must identify the systems 
that received loans and include a description of the specific parcels of 
land or easements purchased in the Biennial Report.
    (ii) A State may provide assistance only in the form of loans to 
community water systems to assist in implementing voluntary, incentive-
based source water protection measures in areas delineated under a 
source water assessment program under section 1453 of the Act and for 
source water petitions under section 1454 of the Act. A State must 
develop a list of systems that may receive loans, giving priority to 
activities that facilitate compliance with national primary drinking 
water regulations applicable to the systems or otherwise significantly 
further the health protection objectives of the Act. A State must seek 
public review and

[[Page 628]]

comment on its priority setting process and its list of systems that may 
receive loans.
    (iii) A State may make expenditures to establish and implement 
wellhead protection programs under section 1428 of the Act.
    (iv) A State may provide assistance, including technical and 
financial assistance, to public water systems as part of a capacity 
development strategy under section 1420(c) of the Act.
    (v) A State may make expenditures from its fiscal year 1997 
capitalization grant to delineate and assess source water protection 
areas for public water systems under section 1453 of the Act. 
Assessments include the identification of potential sources of 
contamination within the delineated areas. These assessment activities 
are limited to the identification of contaminants regulated under the 
Act or unregulated contaminants that a State determines may pose a 
threat to public health. A State must obligate funds within 4 years of 
receiving its fiscal year 1997 capitalization grant.
    (2) A State may make loans under this set-aside only if an 
assistance recipient begins annual repayment of principal and interest 
no later than one year after completion of the activity and completes 
loan repayment no later than 20 years after completion of the activity. 
A State must deposit repayments into the Fund or into a separate account 
dedicated for this set-aside. The separate account is subject to the 
same management oversight requirements as the Fund. Amounts deposited 
into the Fund are subject to the authorized uses of the Fund.



Sec. 35.3540  Requirements for funding set-aside activities.

    (a) General. If a State makes a grant or enters into a cooperative 
agreement with an assistance recipient to conduct set-aside activities, 
the recipient must comply with general grant regulations at 40 CFR part 
30 or part 31, as appropriate.
    (b) Set-aside accounts. A State must maintain separate and 
identifiable accounts for the portion of its capitalization grant to be 
used for set-aside activities.
    (c) Workplans--(1) General. A State must submit detailed annual or 
multi-year workplans to EPA for approval describing how set-aside funds 
will be expended. For the administration and technical assistance set-
aside under Sec. 35.3535(b), the State is only required to submit a 
workplan describing how it will expend funds needed to provide technical 
assistance to public water systems. In order to ensure that funds are 
expended efficiently, multi-year workplan terms negotiated with EPA must 
be less than four years, unless a longer term is approved by EPA.
    (2) Submitting workplans. A State must submit workplans in 
accordance with a schedule negotiated with EPA. If a schedule has not 
been negotiated, the State must submit workplans no later than 90 days 
after the capitalization grant award. If a State does not meet the 
deadline for submitting its workplans, the set-aside funds that were 
required to be described in the workplans must be transferred to the 
Fund to be used for projects.
    (3) Content. Workplans must at a minimum include:
    (i) The annual funding amount in dollars and as a percentage of the 
State allotment or capitalization grant;
    (ii) The projected number of work years needed for implementing each 
set-aside activity;
    (iii) The goals and objectives, outputs, and deliverables for each 
set-aside activity;
    (iv) A schedule for completing activities under each set-aside 
activity;
    (v) Identification and responsibilities of the agencies involved in 
implementing each set-aside activity, including activities proposed to 
be conducted by a third party; and
    (vi) A description of the evaluation process to assess the success 
of work funded under each set-aside activity.
    (4) Amending workplans. If a State changes the scope of work from 
what was originally described in its workplans, it must amend the 
workplans and submit them to EPA for approval.
    (d) Reserving set-aside funds. (1) A State may reserve set-aside 
funds from a capitalization grant and expend them over a period of time, 
provided that the

[[Page 629]]

State identifies the amount of funds reserved in the IUP and describes 
the use of the funds in workplans approved by EPA. For the 
administration and technical assistance set-aside under Sec. 35.3535(b), 
the State is only required to submit a workplan to reserve funds needed 
to provide technical assistance to public water systems.
    (2) With the exception of the local assistance and other State 
programs set-aside under Sec. 35.3535(e), a State may reserve the 
authority to take from future capitalization grants those set-aside 
funds that it has not included in workplans. The State must identify in 
the IUP the amount of authority reserved from a capitalization grant for 
future use.
    (e) Fund and set-aside account transfers. (1) A State may transfer 
funds among set-aside categories described in Sec. 35.3535(b) through 
(e) and among activities within these categories, provided that set-
aside ceilings are not exceeded.
    (2) A State may transfer funds between the Fund and set-asides, 
provided that set-aside ceilings are not exceeded. Set-aside funds may 
be transferred at any time to the Fund. If a State has taken payment for 
the set-aside funds to be transferred to the Fund, it must make binding 
commitments for these funds within one year of the transfer. Monies 
intended for the Fund may be transferred to set-asides only if the State 
has not yet taken a payment that includes those funds to be transferred 
in accordance with the payment schedule negotiated with EPA.
    (3) The capitalization grant agreement must be amended prior to any 
transfer among the set-aside categories or any transfer between the Fund 
and set-asides.



Sec. 35.3545  Capitalization grant agreement.

    (a) General. A State must submit a capitalization grant application 
to EPA in order to receive a capitalization grant award. Approval of an 
application results in EPA and the State entering into a capitalization 
grant agreement which is the principal instrument by which the State 
commits to manage the DWSRF program in accordance with the requirements 
of section 1452 of the Act and this subpart.
    (b) Content. In addition to the items listed in paragraphs (c) 
through (f) of this section, the capitalization grant agreement must 
contain or incorporate by reference the Application for Federal 
Assistance (EPA Form 424) and other related forms, IUP, negotiated 
payment schedule, State environmental review process (SERP), 
demonstrations of the specific capitalization grant agreement 
requirements listed in Sec. 35.3550, and other documentation required by 
the Regional Administrator (RA). The capitalization grant agreement must 
also define the types of performance measures, reporting requirements, 
and oversight responsibilities that will be required to determine 
compliance with section 1452 of the Act.
    (c) Operating agreement. At the option of a State, the framework and 
procedures of the DWSRF program that are not expected to change annually 
may be described in an Operating Agreement. The Operating Agreement may 
be amended if the State negotiates the changes with EPA.
    (d) Attorney General certification. With the capitalization grant 
application, the State's Attorney General, or someone designated by the 
Attorney General, must sign or concur in a certification that:
    (1) The authority establishing the DWSRF program and the powers it 
confers are consistent with State law;
    (2) The State may legally bind itself to the proposed terms of the 
capitalization grant agreement; and
    (3) An agency of the State is authorized to enter into 
capitalization grant agreements with EPA, accept capitalization grant 
awards made under section 1452 of the Act, and otherwise manage the Fund 
in accordance with the requirements and objectives of the Act and this 
subpart.
    (e) Roles and responsibilities of agencies. If more than one State 
agency participates in the implementation of the DWSRF program, the 
State must describe the roles and responsibilities of each agency in the 
capitalization grant application and include a Memorandum

[[Page 630]]

of Understanding or interagency agreement describing these roles and 
responsibilities.
    (f) Process for evaluating capability and compliance. A State must 
include in the capitalization grant application a description of the 
following:
    (1) The process it will use to assess the technical, financial, and 
managerial capability of all systems requesting assistance to ensure 
that the systems are in compliance with the requirements of the Act.
    (2) If a State provides assistance to systems that lack technical, 
financial, and managerial capability, the process it will use to ensure 
that the systems undertake feasible and appropriate changes in 
operations to comply with the requirements of the Act over the long-
term.
    (3) If a State provides assistance to systems in significant 
noncompliance with any national primary drinking water regulation or 
variance, the process it will use to ensure that the systems return to 
compliance.



Sec. 35.3550  Specific capitalization grant agreement requirements.

    (a) General. A State must agree to comply with this subpart, the 
general grant regulations at 40 CFR part 31, and specific conditions of 
the grant. A State must also agree to the following requirements and, in 
some cases, provide documentation as part of the capitalization grant 
application.
    (b) Comply with State statutes and regulations. A State must agree 
to comply with all State statutes and regulations that are applicable to 
DWSRF program funds including capitalization grant funds, State match, 
interest earnings, net bond proceeds, repayments, and funds used for 
set-aside activities.
    (c) Demonstrate technical capability. A State must agree to provide 
documentation demonstrating that it has adequate personnel and resources 
to establish and manage the DWSRF program.
    (d) Accept payments. A State must agree to accept capitalization 
grant payments in accordance with a payment schedule negotiated between 
EPA and the State.
    (e) Make binding commitments. A State must agree to enter into 
binding commitments with assistance recipients to provide assistance 
from the Fund.
    (1) Binding commitments must be made in an amount equal to the 
amount of each capitalization grant payment and accompanying State match 
that is deposited into the Fund and must be made within one year after 
the receipt of each grant payment.
    (2) A State may make binding commitments for more than the required 
amount and credit the excess towards the binding commitment requirements 
of subsequent grant payments.
    (3) If a State is concerned about its ability to comply with the 
binding commitment requirement, it must notify the RA and propose a 
revised payment schedule for future grant payments.
    (f) Deposit of funds. A State must agree to promptly deposit DWSRF 
program funds into appropriate accounts.
    (1) A State must agree to deposit the portion of the capitalization 
grant to be used for projects into the Fund.
    (2) A State must agree to maintain separate and identifiable 
accounts for the portion of the capitalization grant to be used for set-
aside activities.
    (3) A State must agree to deposit net bond proceeds, interest 
earnings, and repayments into the Fund.
    (4) A State must agree to deposit any fees, which include interest 
earned on fees, into the Fund or into separate and identifiable 
accounts.
    (g) Provide State match. A State must agree to deposit into the Fund 
an amount from State monies that equals at least 20 percent of each 
capitalization grant payment.
    (1) A State must identify the source of State match in the 
capitalization grant application.
    (2) A State must deposit the match into the Fund on or before the 
date that a State receives each payment for the capitalization grant, 
except when a State chooses to use a letter of credit (LOC) mechanism or 
similar financial arrangement for the State match. Under this mechanism, 
payments to this LOC account must be made proportionally on the same 
schedule as the payments for the capitalization grant. Cash from this 
State match LOC account must be drawn into the Fund

[[Page 631]]

as cash is drawn into the Fund through the Automated Clearing House 
(ACH).
    (3) A State may issue general obligation or revenue bonds to derive 
the State match. The net proceeds from the bonds issued by a State to 
derive the match must be deposited into the Fund and the bonds may only 
be retired using the interest portion of loan repayments and interest 
earnings of the Fund. Loan principal must not be used to retire State 
match bonds.
    (4) If the State deposited State monies in a dedicated revolving 
fund after July 1, 1993, and prior to receiving a capitalization grant, 
the State may credit these monies toward the match requirement if:
    (i) The monies were deposited in a separate revolving fund that 
subsequently became the Fund after receiving a capitalization grant and 
they were expended in accordance with section 1452 of the Act;
    (ii) The monies were deposited in a separate revolving fund that has 
not received a capitalization grant, they were expended in accordance 
with section 1452 of the Act, and an amount equal to all repayments of 
principal and payments of interest from loans will be deposited into the 
Fund; or
    (iii) The monies were deposited in a separate revolving fund and 
used as a reserve for a leveraged program consistent with section 1452 
of the Act and an amount equal to the reserve is transferred to the Fund 
as the reserve's function is satisfied.
    (5) If a State provides a match in excess of the required amount, 
the excess balance may be credited towards match requirements associated 
with subsequent capitalization grants.
    (h) Provide match for State program management set-aside. A State 
must agree to provide a dollar for dollar match for expenditures made 
under the State program management set-aside in accordance with 
Sec. 35.3535(d)(2). This match is separate from the 20 percent State 
match requirement for the capitalization grant in paragraph (g) of this 
section and must be identified as an eligible credit, deposited into 
set-aside accounts, or documented as in-kind services.
    (i) Use generally accepted accounting principles. A State must agree 
to ensure that the State and public water systems receiving assistance 
will use accounting, audit, and fiscal procedures conforming to 
Generally Accepted Accounting Principles (GAAP) as promulgated by the 
Governmental Accounting Standards Board or, in the case of privately-
owned systems, the Financial Accounting Standards Board. The accounting 
system used for the DWSRF program must allow for proper measurement of:
    (1) Revenues earned and other receipts, including but not limited 
to, loan repayments, capitalization grants, interest earnings, State 
match deposits, and net bond proceeds;
    (2) Expenses incurred and other disbursements, including but not 
limited to, loan disbursements, repayment of bonds, and other 
expenditures allowed under section 1452 of the Act; and
    (3) Assets, liabilities, capital contributions, and retained 
earnings.
    (j) Conduct audits. In accordance with Sec. 35.3570(b), a State must 
agree to comply with the provisions of the Single Audit Act Amendments 
of 1996. A State may voluntarily agree to conduct annual independent 
audits.
    (k) Dedicated repayment source. A State must agree to adopt policies 
and procedures to assure that assistance recipients have a dedicated 
source of revenue for repayment of loans, or in the case of privately-
owned systems, assure that recipients demonstrate that there is adequate 
security to assure repayment of loans.
    (l) Efficient expenditure. A State must agree to commit and expend 
all funds as efficiently as possible and in an expeditious and timely 
manner.
    (m) Use funds in accordance with IUP. A State must agree to use all 
funds in accordance with an IUP that was prepared after providing for 
public review and comment.
    (n) Biennial report. A State must agree to complete and submit a 
Biennial Report that describes how it has met the goals and objectives 
of the previous two fiscal years as stated in the IUPs and 
capitalization grant agreements. The State must submit this report to 
the RA according to the schedule established in the capitalization grant 
agreement.

[[Page 632]]

    (o) Comply with cross-cutters. A State must agree to comply with all 
applicable Federal cross-cutting authorities.
    (p) Comply with provisions to avoid withholdings. A State must agree 
to demonstrate how it is complying with the requirements of capacity 
development authority, capacity development strategy, and operator 
certification program provisions in order to avoid withholdings of funds 
under Sec. 35.3515(b)(1)(i) through (b)(1)(iii).



Sec. 35.3555  Intended Use Plan (IUP).

    (a) General. A State must prepare an annual IUP which describes how 
it intends to use DWSRF program funds to support the overall goals of 
the DWSRF program and contains the information outlined in paragraph (c) 
of this section. In those years in which a State submits a 
capitalization grant application, EPA must receive an IUP prior to the 
award of the capitalization grant. A State must prepare an annual IUP as 
long as the Fund or set-aside accounts remain in operation. The IUP must 
conform to the fiscal year adopted by the State for the DWSRF program 
(e.g., the State's fiscal year or the Federal fiscal year).
    (b) Public review requirements. A State must seek meaningful public 
review and comment during the development of the IUP. A State must 
include a description of the public review process and an explanation of 
how it responded to major comments and concerns. If a State prepares 
separate IUPs (one for Fund monies and one for set-aside monies), the 
State must seek public review and comment during the development of each 
IUP.
    (c) Content. Information in the IUP must be provided in a format and 
manner that is consistent with the needs of the RA.
    (1) Priority system. The IUP must include a priority system for 
ranking individual projects for funding that provides sufficient detail 
for the public and EPA to readily understand the criteria used for 
ranking. The priority system must provide, to the maximum extent 
practicable, that priority for the use of funds will be given to 
projects that: address the most serious risk to human health; are 
necessary to ensure compliance with the requirements of the Act 
(including requirements for filtration); and assist systems most in 
need, on a per household basis, according to State affordability 
criteria. A State that does not adhere to the three criteria must 
demonstrate why it is unable to do so.
    (2) Priority lists of projects. All projects, with the exception of 
projects funded on an emergency basis, must be ranked using a State's 
priority system and go through a public review process prior to 
receiving assistance.
    (i) The IUP must contain a fundable list of projects that are 
expected to receive assistance from available funds designated for use 
in the current IUP and a comprehensive list of projects that are 
expected to receive assistance in the future. The fundable list of 
projects must include: the name of the public water system; the priority 
assigned to the project; a description of the project; the expected 
terms of financial assistance based on the best information available at 
the time the IUP is developed; and the population of the system's 
service area at the time of the loan application. The comprehensive list 
must include, at a minimum, the priority assigned to each project and, 
to the extent known, the expected funding schedule for each project. A 
State may combine the fundable and comprehensive lists into one list, 
provided that projects which are expected to receive assistance from 
available funds designated for use in the current IUP are identified.
    (ii) The IUP may include procedures which would allow a State to 
bypass projects on the fundable list. The procedures must clearly 
identify the conditions which would allow a project to be bypassed and 
the method for identifying which projects would receive funding. If a 
bypass occurs, a State must fund the highest ranked project on the 
comprehensive list that is ready to proceed. If a State elects to bypass 
a project for reasons other than readiness to proceed, the State must 
explain why the project was bypassed in the Biennial Report and during 
the annual review. To the maximum extent practicable, a State must work 
with bypassed projects to ensure that they will be prepared to receive 
funding in future years.

[[Page 633]]

    (iii) The IUP may allow for the funding of projects which require 
immediate attention to protect public health on an emergency basis, 
provided that a State defines what conditions constitute an emergency 
and identifies the projects in the Biennial Report and during the annual 
review.
    (iv) The IUP must demonstrate how a State will meet the requirement 
of providing loan assistance to small systems as described in 
Sec. 35.3525(a)(5). A State that is unable to comply with this 
requirement must describe the steps it is taking to ensure that a 
sufficient number of projects are identified to meet this requirement in 
future years.
    (3) Distribution of funds. The IUP must describe the criteria and 
methods that a State will use to distribute all funds including:
    (i) The process and rationale for distribution of funds between the 
Fund and set-aside accounts;
    (ii) The process for selection of systems to receive assistance;
    (iii) The rationale for providing different types of assistance and 
terms, including the method used to determine the market rate and the 
interest rate;
    (iv) The types, rates, and uses of fees assessed on assistance 
recipients; and
    (v) A description of the financial planning process undertaken for 
the Fund and the impact of funding decisions on the long-term financial 
health of the Fund.
    (4) Financial status. The IUP must describe the sources and uses of 
DWSRF program funds including: the total dollar amount in the Fund; the 
total dollar amount available for loans, including loans to small 
systems; the amount of loan subsidies that may be made available to 
disadvantaged communities from the 30 percent allowance in 
Sec. 35.3525(b)(2); the total dollar amount in set-aside accounts, 
including the amount of funds or authority reserved; and the total 
dollar amount in fee accounts.
    (5) Short- and long-term goals. The IUP must describe the short-term 
and long-term goals it has developed to support the overall goals of the 
DWSRF program of ensuring public health protection, complying with the 
Act, ensuring affordable drinking water, and maintaining the long-term 
financial health of the Fund.
    (6) Set-aside activities. (i) The IUP must identify the amount of 
funds a State is electing to use for set-aside activities. A State must 
also describe how it intends to use these funds, provide a general 
schedule for their use, and describe the expected accomplishments that 
will result from their use.
    (ii) For loans made in accordance with the local assistance and 
other State programs set-aside under Sec. 35.3535(e)(1)(i) and 
(e)(1)(ii), the IUP must, at a minimum, describe the process by which 
recipients will be selected and how funds will be distributed among 
them.
    (7) Disadvantaged community assistance. The IUP must describe how a 
State's disadvantaged community program will operate including:
    (i) The State's definition of what constitutes a disadvantaged 
community;
    (ii) A description of affordability criteria used to determine the 
amount of disadvantaged assistance;
    (iii) The amount and type of loan subsidies that may be made 
available to disadvantaged communities from the 30 percent allowance in 
Sec. 35.3525(b)(2); and
    (iv) To the maximum extent practicable, an identification of 
projects that will receive disadvantaged assistance and the respective 
amounts.
    (8) Transfer process. If a State decides to transfer funds between 
the DWSRF program and CWSRF program, the IUPs for the DWSRF program and 
the CWSRF program must describe the process including:
    (i) The total amount and type of funds being transferred during the 
period covered by the IUP;
    (ii) The total amount of authority being reserved for future 
transfer, including the authority reserved from previous years; and
    (iii) The impact of the transfer on the amount of funds available to 
finance projects and set-asides and the long-term impact on the Fund.
    (9) Cross-collateralization process. If a State decides to cross-
collateralize Fund assets of the DWSRF program and CWSRF program, the 
IUPs for the

[[Page 634]]

DWSRF program and the CWSRF program must describe the process including:
    (i) The type of monies which will be used as security;
    (ii) How monies will be used in the event of a default; and
    (iii) Whether or not monies used for a default in the other program 
will be repaid, and if they will not be repaid, what will be the 
cumulative impact on the Funds.
    (d) Amending the IUP. The priority lists of projects may be amended 
during the year under provisions established in the IUP as long as 
additions or other substantive changes to the lists, except projects 
funded on an emergency basis, go through a public review process. A 
State may change the use of funds from what was originally described in 
the IUP as long as substantive changes go through a public review 
process.



Sec. 35.3560  General payment and cash draw rules.

    (a) Payment schedule. A State will receive each capitalization grant 
payment in the form of an increase to the ceiling of funds available 
through the ACH, made in accordance with a payment schedule negotiated 
between EPA and the State. A payment schedule that is based on a State's 
projection of binding commitments and use of set-aside funds as stated 
in the IUP must be included in the capitalization grant agreement. 
Changes to the payment schedule must be made through an amendment to the 
grant agreement.
    (b) Timing of payments. All payments to a State will be made by the 
earlier of 8 quarters after the capitalization grant is awarded or 12 
quarters after funds are allotted to a State.
    (c) Funds available for cash draw. Cash draws will be available only 
up to the amount of payments that have been made to a State.
    (d) Estimated cash draw schedule. On a schedule negotiated with EPA, 
a State must provide EPA with a quarterly schedule of estimated cash 
draws for the Federal fiscal year. The State must notify EPA when 
significant changes from the estimated cash draw schedule are 
anticipated. This schedule must be developed to conform with the 
procedures applicable to cash draws and must have sufficient detail to 
allow EPA and the State to jointly develop and maintain a forecast of 
cash draws.
    (e) Cash draw for set-asides. A State may draw cash through the ACH 
for the full amount of costs incurred for set-aside expenditures based 
on EPA approved workplans. A State may draw cash in advance to ensure 
funds are available to meet State payroll expenses. However, cash should 
be drawn no sooner than necessary to meet immediate payroll disbursement 
needs.
    (f) Cash draw for Fund. A State may draw cash through the ACH for 
the proportionate Federal share of eligible incurred project costs. A 
State need not have disbursed funds for incurred project costs prior to 
drawing cash. A State may not draw cash for a particular project until 
the State has executed a loan agreement for that project.
    (g) Calculation of proportionate Federal share--(1) General. The 
proportionate Federal share is equal to the Federal monies intended for 
the Fund (capitalization grant minus set-asides) divided by the total 
amount of monies intended for the Fund (capitalization grant minus set-
asides plus required State match). A State may calculate the 
proportionate Federal share on a rolling average basis or on a grant by 
grant basis.
    (2) State overmatch. (i) The proportionate Federal share does not 
change if a State is providing funds in excess of the required State 
match.
    (ii) Federal monies may be drawn at a rate that is greater than that 
determined by the proportionate Federal share calculation when a State 
is given credit toward its match amount as a result of funding projects 
in prior years (but after July 1, 1993), or for crediting excess match 
in the Fund in prior years and disbursing these amounts prior to drawing 
cash. If the entire amount of a State's required match has been 
disbursed in advance, the proportionate Federal share of cash draws 
would be 100 percent.

[[Page 635]]



Sec. 35.3565  Specific cash draw rules for authorized types of assistance 
from the Fund.

    A State may draw cash for the authorized types of assistance from 
the Fund described in Sec. 35.3525 according to the following rules:
    (a) Loans--(1) Eligible project costs. A State may draw cash based 
on the proportionate Federal share of incurred project costs. In the 
case of incurred planning and design and associated pre-project costs, 
cash may be drawn immediately upon execution of the loan agreement.
    (2) Eligible project reimbursement costs. A State may draw cash to 
reimburse assistance recipients for eligible project costs at a rate no 
greater than equal amounts over the maximum number of quarters that 
capitalization grant payments are made. A State may immediately draw 
cash for up to 5 percent of each fiscal year's capitalization grant or 2 
million dollars, whichever is greater, to reimburse project costs.
    (b) Refinance or purchase of local debt obligations--(1) Completed 
projects. A State may draw cash up to the portion of the capitalization 
grant committed to the refinancing or purchase of local debt obligations 
of municipal, intermunicipal, or interstate agencies at a rate no 
greater than equal amounts over the maximum number of quarters that 
capitalization grant payments are made. A State may immediately draw 
cash for up to 5 percent of each fiscal year's capitalization grant or 2 
million dollars, whichever is greater, to refinance or purchase local 
debt.
    (2) Portions of projects not completed. A State may draw cash based 
on the proportionate Federal share of incurred project costs according 
to the rule for loans in paragraph (a)(1) of this section.
    (3) Purchase of incremental disbursement bonds from local 
governments. A State may draw cash based on a schedule that coincides 
with the rate at which costs are expected to be incurred for the 
project.
    (c) Purchase insurance for local debt obligations. A State may draw 
cash for the proportionate Federal share of insurance premiums as they 
are due.
    (d) Guarantee for local debt obligations--(1) In the event of 
default. In the event of imminent default in debt service payments on a 
guaranteed local debt, a State may draw cash immediately up to the total 
amount of the capitalization grant that is dedicated for the guarantee. 
If a balance remains after the default is satisfied, the State must 
negotiate a revised cash draw schedule for the remaining amount 
dedicated for the guarantee.
    (2) In the absence of default. A State may draw cash up to the 
amount of the capitalization grant dedicated for the guarantee based on 
actual incurred project costs. The amount of the cash draw would be 
based on the proportionate Federal share of incurred project costs 
multiplied by the ratio of the guarantee reserve to the amount 
guaranteed.
    (e) Revenue or security for Fund debt obligations (leveraging)--(1) 
In the event of default. In the event of imminent default in debt 
service payments on a secured debt, a State may draw cash immediately up 
to the total amount of the capitalization grant that is dedicated for 
the security. If a balance remains after the default is satisfied, the 
State must negotiate a revised schedule for the remaining amount 
dedicated for the security.
    (2) In the absence of default. A State may draw cash up to the 
amount of the capitalization grant dedicated for the security using 
either of the following methods:
    (i) All projects method. A State may draw cash based on the incurred 
project costs multiplied by the ratio of the Federal portion of the 
reserve to the total reserve multiplied by the ratio of the total 
reserve to the net bond proceeds.
    (ii) Group of projects method. A State may identify a group of 
projects whose cost is approximately equal to the total of that portion 
of the capitalization grant and the State match dedicated as a security. 
The State may then draw cash based on the incurred costs of the selected 
projects only, multiplied by the ratio of the Federal portion of the 
security to the entire security.
    (3) Aggressive leveraging. Where the cash draw rules in paragraphs 
(e)(1) and (e)(2) of this section would significantly frustrate a 
State's leveraged

[[Page 636]]

program, EPA may permit an exception to these cash draw rules and 
provide for a more accelerated cash draw. A State must 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) The Fund will provide substantially more assistance if 
accelerated cash draws are allowed; and
    (iv) The long-term viability of the State program to meet drinking 
water needs will be protected.
    (f) Loans to privately-owned systems. In cases where State monies 
cannot be used to provide loans to privately-owned systems, a State may 
draw 100 percent Federal monies for costs incurred by privately-owned 
systems. When Federal monies are drawn for incurred costs, the State 
must deposit or have previously deposited into the Fund the required 
match associated with the amount of cash drawn. Every 18 months, the 
State must submit documentation showing that it has met its 
proportionate Federal share within the last 6 months. If a State is 
unable to document that it has met its proportionate Federal share, 
State match deposited into the Fund must be expended before Federal 
monies are drawn for costs incurred by publicly-owned systems until the 
State meets its proportionate Federal share.



Sec. 35.3570  Reports and audits.

    (a) Biennial report--(1) General. A State must submit a Biennial 
Report to the RA describing how it has met the goals and objectives of 
the previous two fiscal years as stated in the IUPs and capitalization 
grant agreements, including the most recent audit of the Fund and the 
entire State allotment. The State must submit this report to the RA 
according to the schedule established in the capitalization grant 
agreement. Information provided in the Biennial Report on other EPA 
programs eligible for assistance from the DWSRF program may not replace 
the reporting requirements for those other programs.
    (2) Financial report. As part of the Biennial Report, a State must 
present the financial status of the DWSRF program, including the total 
dollar amount in fee accounts. This report must, at a minimum, include 
the financial statements and footnotes required under GAAP to present 
fairly the financial condition and results of operations.
    (3) Matters to establish in the biennial report. A State must 
establish in the Biennial Report that it has complied with section 1452 
of the Act and this subpart. In particular, the Biennial Report must 
demonstrate that a State has:
    (i) Managed the DWSRF program in a fiscally prudent manner and 
adopted policies and processes which promote the long-term financial 
health of the Fund;
    (ii) Deposited its match (cash or State LOC) into the Fund in 
accordance with the requirements of Sec. 35.3550(g);
    (iii) Made binding commitments with assistance recipients to provide 
assistance from the Fund consistent with the requirements of 
Sec. 35.3550(e);
    (iv) Funded only the highest priority projects listed in the IUP and 
documented why priority projects were bypassed in accordance with 
Sec. 35.3555(c)(2);
    (v) Provided assistance only to eligible public water systems and 
for eligible projects and project-related costs under Sec. 35.3520;
    (vi) Provided assistance only for eligible set-aside activities 
under Sec. 35.3535 and conducted activities consistent with workplans 
and other requirements of Sec. 35.3535 and Sec. 35.3540;
    (vii) Provided loan assistance to small systems consistent with the 
requirements of Sec. 35.3525(a)(5) and Sec. 35.3555(c)(2)(iv);
    (viii) Provided assistance to disadvantaged communities consistent 
with the requirements of Sec. 35.3525(b) and Sec. 35.3555(c)(7);
    (ix) Used fees for eligible purposes under Sec. 35.3530(b)(2) and 
(b)(3) and assessed fees included as principal in a loan in accordance 
with the limitations in Sec. 35.3530(b)(3)(i) through (b)(3)(iii);
    (x) Adopted and implemented procedures consistent with the 
requirements of Sec. 35.3530(c) and Sec. 35.3555(c)(8) if funds

[[Page 637]]

were transferred between the DWSRF program and CWSRF program;
    (xi) Adopted and implemented procedures consistent with the 
requirements of Sec. 35.3530(d) and Sec. 35.3555(c)(9) if Fund assets of 
the DWSRF program and CWSRF program were cross-collateralized;
    (xii) Reviewed all DWSRF program funded projects and activities for 
compliance with Federal cross-cutting authorities that apply to the 
State as a grant recipient and those which apply to assistance 
recipients in accordance with Sec. 35.3575;
    (xiii) Reviewed all DWSRF program funded projects and activities in 
accordance with approved State environmental review procedures under 
Sec. 35.3580; and
    (xiv) Complied with general grant regulations at 40 CFR part 31 and 
specific conditions of the grant.
    (4) Joint report. A State which jointly administers the DWSRF 
program and the CWSRF program may submit a report that addresses both 
programs. However, programmatic and financial information for each 
program must be identified separately.
    (b) Audit. (1) A State must comply with the provisions of the Single 
Audit Act Amendments of 1996, 31 U.S.C. 7501-7, and Office of Management 
and Budget's Circular A-133 and Compliance Supplement.
    (2) A State may voluntarily agree to conduct annual independent 
audits which provide an auditor's opinion on the DWSRF program financial 
statements, reports on internal controls, and reports on compliance with 
section 1452 of the Act, applicable regulations, and general grant 
requirements. The agreement to conduct voluntary independent audits 
should be documented in the Operating Agreement or in another part of 
the capitalization grant agreement.
    (3) Those States that do not conduct independent audits will be 
subject to periodic audits by the EPA Office of Inspector General.
    (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, Biennial Report (in years when it is submitted), 
and Operating Agreement (if used) and to determine compliance with the 
capitalization grant agreement, requirements of section 1452 of the Act, 
and this subpart. The RA will complete the annual review according to 
the schedule established in the capitalization grant agreement.
    (2) Records access. After reasonable notice by the RA, the State or 
assistance recipient must make available such records as the RA 
reasonably considers pertinent to review and determine State compliance 
with the capitalization grant agreement and requirements of section 1452 
of the Act and this subpart. The RA may conduct on-site visits as deemed 
necessary to perform the annual review.
    (d) Information management system--(1) Purpose. The purpose of the 
information management system is to assess the DWSRF programs, to 
monitor State progress in years in which Biennial Reports are not 
submitted, and to assist in conducting annual reviews.
    (2) Reporting. A State must annually submit information to EPA on 
the amount of funds available and assistance provided by the DWSRF 
program.



Sec. 35.3575  Application of Federal cross-cutting authorities (cross-cutters).

    (a) General. A number of Federal laws, executive orders, and 
government-wide policies apply by their own terms to projects and 
activities receiving Federal financial assistance, regardless of whether 
the statute authorizing the assistance makes them applicable. A few 
cross-cutters apply by their own terms only to the State as the grant 
recipient because the authorities explicitly limit their application to 
grant recipients.
    (b) Application of cross-cutter requirements. Except as provided in 
paragraphs (c) and (d) of this section and in Sec. 35.3580, cross-cutter 
requirements apply in the following manner:
    (1) All projects for which a State provides assistance in amounts up 
to the amount of the capitalization grant deposited into the Fund must 
comply with the requirements of the cross-cutters. Activities for which 
a State provides assistance from capitalization

[[Page 638]]

grant funds deposited into set-aside accounts must comply with the 
requirements of the cross-cutters, to the extent that the requirements 
of the cross-cutters are applicable.
    (2) Projects and activities for which a State provides assistance in 
amounts that are greater than the amount of the capitalization grant 
deposited into the Fund or set-aside accounts are not subject to the 
requirements of the cross-cutters.
    (3) A State that elects to impose the requirements of the cross-
cutters on projects and activities for which it provides assistance in 
amounts that are greater than the amount of the capitalization grant 
deposited into the Fund or set-aside accounts may credit this excess to 
meet future cross-cutter requirements on assistance provided from the 
respective accounts.
    (c) Federal anti-discrimination law requirements. All programs, 
projects, and activities for which a State provides assistance are 
subject to the following Federal anti-discrimination laws: 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 the Age 
Discrimination Act of 1975, as amended, 42 U.S.C. 6102.
    (d) Minority and Women's Business Enterprise (MBE/WBE) procurement 
requirements. A State must negotiate a fair share goal with the RA for 
the participation of MBE/WBEs. The fair share goal must be based on the 
availability of MBE/WBEs in the relevant market area to do the work 
under the DWSRF program. Each capitalization grant agreement must 
describe how a State will comply with MBE/WBE procurement requirements, 
including how it will apply the fair share goal to assistance recipients 
to which the requirements apply and how it will assure that assistance 
recipients take the following six affirmative steps:
    (1) Include small, minority and women's businesses on solicitation 
lists;
    (2) Assure that small, minority and women's businesses are solicited 
whenever they are potential sources;
    (3) Divide total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small, 
minority and women's businesses;
    (4) Establish delivery schedules, when the requirements of the work 
permits, which will encourage participation by small, minority and 
women's businesses;
    (5) Use the services of the Small Business Administration and the 
Minority Business Development Agency of the U.S. Department of Commerce, 
as appropriate; and
    (6) Require the contractor to take the affirmative steps in 
paragraphs (d)(1) through (d)(5) of this section if the contractor 
awards subagreements.
    (e) Complying with cross-cutters. A State is responsible for 
ensuring that assistance recipients comply with the requirements of 
cross-cutters, including initiating any required consultations with 
State or Federal agencies responsible for individual cross-cutters. A 
State must inform EPA when consultation or coordination with other 
Federal agencies is necessary to resolve issues regarding compliance 
with cross-cutter requirements.



Sec. 35.3580  Environmental review requirements.

    (a) General. With the exception of activities identified in 
paragraph (b) of this section, a State must conduct environmental 
reviews of the potential environmental impacts of projects and 
activities receiving assistance.
    (b) Activities excluded from environmental reviews. A State must 
conduct environmental reviews of source water protection activities 
under Sec. 35.3535, unless the activities solely involve administration 
(e.g., personnel, equipment, travel) or technical assistance. A State is 
not required to conduct environmental reviews of all the other eligible 
set-aside activities under Sec. 35.3535 because EPA has determined that, 
due to their nature, they do not individually, cumulatively over time, 
or in conjunction with other actions have a significant effect on the 
quality of the human environment. A State does not need to include 
provisions in its SERP for excluding these activities. Activities 
excluded from environmental reviews remain subject to other applicable 
Federal cross-cutting authorities under Sec. 35.3575.

[[Page 639]]

    (c) Tier I environmental reviews. All projects that are assisted by 
the State in amounts up to the amount of the capitalization grant 
deposited into the Fund must be reviewed in accordance with a SERP that 
is functionally equivalent to the review undertaken by EPA under the 
National Environmental Policy Act (NEPA). With the exception of 
activities excluded from environmental reviews in paragraph (b) of this 
section, activities for which a State provides assistance from 
capitalization grant funds deposited into set-aside accounts must also 
be reviewed in accordance with a SERP that is functionally equivalent to 
the review undertaken by EPA under the NEPA. A State may elect to apply 
the procedures at 40 CFR part 6 and related subparts or apply its own 
``NEPA-like'' SERP for conducting environmental reviews, provided that 
the following elements are met:
    (1) Legal foundation. A State must have the legal authority to 
conduct environmental reviews of projects and activities receiving 
assistance. The legal authority and supporting documentation must 
specify:
    (i) The mechanisms to implement mitigation measures to ensure that a 
project or activity is environmentally sound;
    (ii) The legal remedies available to the public to challenge 
environmental review determinations and enforcement actions;
    (iii) The State agency that is primarily responsible for conducting 
environmental reviews; and
    (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. A State must employ an 
interdisciplinary approach for identifying and mitigating adverse 
environmental effects including, but not limited to, those associated 
with other cross-cutting Federal environmental authorities.
    (3) Decision documentation. A State must fully document the 
information, processes, and premises that influence its decisions to:
    (i) Proceed with a project or activity contained in a finding of no 
significant impact (FNSI) following documentation in an environmental 
assessment (EA);
    (ii) Proceed or not proceed with a project or activity contained in 
a record of decision (ROD) following preparation of a full environmental 
impact statement (EIS);
    (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 or activity; and
    (iv) If a State elects to implement processes for either 
partitioning an environmental review or categorically excluding projects 
or activities from environmental review, the State must similarly 
document these processes in its proposed SERP.
    (4) Public notice and participation. A State must provide public 
notice when: a CE is issued or rescinded; a FNSI is issued but before it 
becomes effective; a decision that is issued 5 years earlier is 
reaffirmed or revised; and prior to initiating an EIS. Except with 
respect to a public notice of a CE or reaffirmation of a previous 
decision, a formal public comment period must be provided during which 
no action on a project or activity will be allowed. A public hearing or 
meeting must be held for all projects and activities except for those 
having little or no environmental effect.
    (5) Alternatives consideration. A 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.
    (d) Tier II environmental reviews. A State may elect to apply an 
alternative SERP to all projects and activities (except those activities 
excluded from environmental reviews in paragraph (b) of this section) 
for which a State provides assistance in amounts that are greater than 
the amount of the capitalization

[[Page 640]]

grant deposited into the Fund or set-aside accounts, provided that the 
process:
    (1) Is supported by a legal foundation which establishes the State's 
authority to review projects and activities;
    (2) Responds to other environmental objectives of the State;
    (3) Provides for comparative evaluations among alternatives and 
accounts 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 
activities and for the opportunity to comment on alternatives and to 
examine environmental review documents. For projects or activities 
determined by the State to be controversial, a public hearing must be 
held.
    (e) Categorical exclusions (CEs). A State may identify categories of 
actions which do not individually, cumulatively over time, or in 
conjunction with other actions have a significant effect on the quality 
of the human environment and which the State will exclude from the 
substantive environmental review requirements of its SERP. Any 
procedures under this paragraph must provide for extraordinary 
circumstances in which a normally excluded action may have a significant 
environmental effect.
    (f) Environmental reviews for refinanced projects or reimbursed 
project costs. A State must conduct an environmental review which 
considers the impacts of a project based on conditions of the site prior 
to initiation of the project. Failure to comply with the environmental 
review requirements cannot be justified on the grounds that costs have 
already been incurred, impacts have already been caused, or contractual 
obligations have been made prior to the binding commitment.
    (g) EPA approval process. The RA must review and approve any State 
``NEPA-like'' and alternative procedures to ensure that the requirements 
for Tier I and Tier II environmental reviews 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 subpart.
    (h) Modifications to approved SERPs. Significant changes to State 
environmental review procedures must be approved by the RA.



Sec. 35.3585  Compliance assurance procedures.

    (a) Causes. The RA may take action under this section and the 
enforcement provisions of the general grant regulations at 40 CFR 31.43 
if a determination is made that a State has not complied with its 
capitalization grant agreement, other requirements under section 1452 of 
the Act, this subpart, or 40 CFR part 31 or has not managed the DWSRF 
program in a financially sound manner (e.g., allows consistent and 
substantial failures of loan repayments).
    (b) RA's course of action. For cause under paragraph (a) of this 
section, the RA will issue a notice of non-compliance and may prescribe 
appropriate corrective action. A State's corrective action must remedy 
the specific instance of non-compliance and adjust program management to 
avoid non-compliance in the future.
    (c) Consequences for failure to comply. (1) If within 60 days of 
receipt of the non-compliance notice a State fails to take the necessary 
actions to obtain the results required by the RA or fails to provide an 
acceptable plan to achieve the results required, the RA may suspend 
payments until the State has taken acceptable actions. Once a State has 
taken the corrective action deemed necessary and adequate by the RA, the 
suspended payments will be released and scheduled payments will 
recommence.
    (2) If a State fails to take the necessary corrective action deemed 
adequate by the RA within 12 months of receipt of the original notice, 
any suspended payments will be deobligated and reallotted to eligible 
States. Once a payment has been made for the Fund, that payment and cash 
draws from that payment will not be subject to withholding. All future 
payments will be withheld from a State and reallotted

[[Page 641]]

until such time that adequate corrective action is taken and the RA 
determines that the State is back in compliance.
    (d) Dispute resolution. A State or an assistance recipient that has 
been adversely affected by an action or omission by EPA may request a 
review of the action or omission under general grant regulations at 40 
CFR part 31, subpart F.

  Appendix A to Subpart L--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) Alternatives consideration. 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 relevant 
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 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: 65 FR 58858, Oct. 2, 2000, unless otherwise noted.

                                 General



Sec. 35.4000  Authority.

    The Environmental Protection Agency (``EPA'') issues this subpart 
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  What is a Technical Assistance Grant?

    A Technical Assistance Grant (TAG) provides money for your group to 
obtain technical assistance in interpreting information with regard to a 
Superfund site. EPA awards TAGs to promote public participation in 
decision making at eligible sites. A TAG allows your group to procure 
independent technical advisors to help you interpret and comment on 
site-related information and decisions. Examples of how a technical 
advisor can help your group include, but are not limited to:
    (a) Reviewing preliminary site assessment/site investigation data;
    (b) Participating in public meetings to help interpret information 
about site conditions, proposed remedies, and the implementation of a 
remedy;
    (c) Visiting the site vicinity periodically during cleanup, if 
possible, to observe progress and provide technical updates to your 
group; and
    (d) Evaluate future land use options based on land use assumptions 
found in the ``remedial investigation/feasibility study.''



Sec. 35.4010  What does this subpart do?

    This subpart establishes the program-specific regulations for TAGs 
awarded by EPA.

[[Page 642]]



Sec. 35.4011  Do the general grant regulations for nonprofit organizations 
apply to TAGs?

    Yes, the regulations at 40 CFR part 30 also apply to TAGs. 40 CFR 
part 30 establishes uniform administrative requirements for Federal 
grants and agreements to institutions of higher education, hospitals, 
and other nonprofit organizations. Because EPA awards TAGs to nonprofit 
organizations, 40 CFR part 30 applies to all TAGs.



Sec. 35.4012  If there appears to be a difference between the requirements 
in 40 CFR part 30 and this subpart, which regulations should my group follow?

    You should follow the regulations in 40 CFR part 30, except for the 
following provisions from which this subpart deviates:
    (a) 40 CFR 30.11, Pre-Award Policies;
    (b) 40 CFR 30.22 (b) and (c), Payment;
    (c) 40 CFR 30.44 (e) (2), Procurement Procedures;
    (d) 40 CFR 30.53 (b), Retention and Access Requirements for Records; 
and
    (e) 40 CFR 31.70 (c) and 31.70 (i) as referenced by 40 CFR 30.63, 
Disputes.



Sec. 35.4015  Do certain words in this subpart have specific meaning?

    Yes, some words in this subpart have specific meanings that are 
described inSec. 35.4270, Definitions. The first time these words are 
used they are marked with quotation marks, for example, ``EPA.''

                            Who Is Eligible?



Sec. 35.4020  Is my community group eligible for a TAG?

    (a) Yes, your community group is eligible for a TAG if:
    (1) You are a group of people who may be ``affected'' by a release 
or a threatened release at any facility listed on the National 
Priorities List (``NPL'') or proposed for listing under the National 
Contingency Plan (NCP) where a ``response action'' under CERCLA has 
begun;
    (2) Your group meets the minimum administrative and management 
capability requirements found in 40 CFR 30.21 by demonstrating you have 
or will have reliable procedures for record keeping and financial 
accountability related to managing your TAG (you must have these 
procedures in place before your group incurs any expenses); and
    (3) Your group is not ineligible according to paragraph (b) of this 
section.
    (b) No, your community group is not eligible for a TAG if your group 
is:
    (1) A ``potentially responsible party'' (PRP), receives money or 
services from a PRP, or represents a PRP;
    (2) Not incorporated as a nonprofit organization for the specific 
purpose of representing affected people except as provided in 
Sec. 35.4045;
    (3) ``Affiliated'' with a national organization;
    (4) An academic institution;
    (5) A political subdivision (for example, township or municipality); 
or
    (6) Established or presently sustained by ineligible entities that 
paragraphs (b) (1) through (5) of this section describe, or if any of 
these ineligible entities are represented in your group.



Sec. 35.4025  Is there any way my group can get a TAG if it is currently ineligible?

    You can make your group eligible by establishing an identity 
separate from that of the PRP or other ineligible entity by making a 
reasonable demonstration of independence from the ineligible entity. 
Such a demonstration requires, at a minimum, a showing that your group 
has a separate and distinct:
    (a) Formal legal identity (for example, your group has different 
officers); and
    (b) Substantive existence (meaning, is not affiliated with an 
ineligible entity), including its own finances.
    (1) In determining whether your group has a different substantive 
existence from the ineligible entity, you must establish for us that 
your group:
    (i) Is not controlled either directly or indirectly, by the 
ineligible entity; and
    (ii) Does not control, either directly or indirectly, an ineligible 
entity.
    (2) You must also establish for EPA that a third group does not have 
the power to control both your group and an ineligible entity.

[[Page 643]]



Sec. 35.4030  Can I be part of a TAG group if I belong to an ineligible group?

    You may participate in your capacity as an individual in a group 
receiving a TAG, but you may not represent the interests of an 
ineligible entity. However, we may prohibit you from participating in a 
TAG group if the ``award official'' determines you have a significant 
financial involvement in a PRP.



Sec. 35.4035  Does EPA use the same eligibility criteria for TAGs at 
``Federal facility'' sites?

    Yes, EPA uses the same criteria found in Sec. 35.4020 in evaluating 
the eligibility of your group or 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. 30.4040  How many groups can receive a TAG at one Superfund site?

    (a) Only one TAG may be awarded for a site at any one time. However, 
the recipient of the grant can be changed when:
    (1) EPA and the recipient mutually agree to terminate the current 
TAG or the recipient or EPA unilaterally terminates the TAG; or
    (2) The recipient elects not to renew its grant even though it is 
eligible for additional funding.
    (b) In each of the situations described in paragraph (a) of this 
section the following information applies:
    (1) If you are a subsequent recipient of a TAG, you are not 
responsible for actions taken by the first recipient, nor are you 
responsible for how the first recipient expended the funds received from 
EPA; and
    (2) The process for changing recipients begins when an interested 
applicant submits a Letter of Intent (``LOI'') to the Agency expressing 
interest in a TAG as described in Sec. 35.4105. We will then follow the 
application procedure set forth at Secs. 35.4105 through 35.4165.

                Your Responsibilities as a TAG Recipient



Sec. 35.4045  What requirements must my group meet as a TAG recipient?

    Your group, including those groups which form out of a coalition 
agreement, must incorporate as a nonprofit corporation for the purpose 
of participating in decision making at the Superfund site for which we 
provide a TAG. However, a group that was previously incorporated as a 
nonprofit organization and includes all individuals and groups who 
joined in applying for the TAG is not required to reincorporate for the 
specific purpose of representing affected individuals at the site, if in 
EPA's discretionary judgment, the group has a history of involvement at 
the site. You must also:
    (a) At the time of award, demonstrate that your group has 
incorporated as a nonprofit organization or filed the necessary 
documents for incorporation with the appropriate State agency; and
    (b) At the time of your first request for reimbursement or advance 
payment, submit proof that the State has incorporated your group as a 
nonprofit organization.



Sec. 35.4050  Must my group contribute toward the cost of a TAG?

    (a) Yes, your group must contribute 20 percent of the total cost of 
the TAG project unless EPA waives the match under Sec. 35.4055.
    (b) Under 40 CFR 30.23, your group may use ``cash'' and/or ``in-kind 
contributions'' (for example, your board members can count their time 
toward your matching share) to meet the matching funds requirement. 
Without specific statutory authority, you may not use Federal funds to 
meet the required match.



Sec. 35.4055  What if my group can't come up with the ``matching funds?''

    (a) EPA may waive all or part of your matching funds requirement if 
we:

[[Page 644]]

    (1) Have not issued the ``Record of Decision'' (``ROD'') at the last 
``operable unit'' for the site (in other words, if EPA has not already 
made decisions on the final cleanup actions at the site); and
    (2) Determine, based on evidence in the form of documentation 
provided by your group, that:
    (i) Your group needs a waiver because providing the match would be a 
financial hardship to your group (for example, your local economy is 
depressed and coming up with in-kind contributions would be difficult); 
and
    (ii) The waiver is necessary to help your community participate in 
selecting a remedial action at the site.
    (b) If your group receives a waiver of the matching funds after your 
initial award, your grant agreement must be amended.

                       How Much Money TAGs Provide



Sec. 35.4060  How much money can my group receive through a TAG?

    The following table shows how much money your group can receive 
through a TAG:

------------------------------------------------------------------------
                                          Then your initial award will .
         If your group is . . .                        . .
------------------------------------------------------------------------
(a) the first recipient of a TAG at a    not exceed $50,000 per site.
 site or a subsequent recipient at a
 site where the initial recipient spent
 the entire award amount.
------------------------------------------------------------------------
(b) a subsequent recipient at a site     be the unspent amount remaining
 with remaining funds from an initial     from an initial from the
 $50,000 award.                           initial award (for example, if
                                          the Agency awarded the first
                                          recipient $50,000 but that
                                          recipient only spent $27,000,
                                          then your group's initial
                                          award would be $23,000).
------------------------------------------------------------------------



Sec. 35.4065  How can my group get more than $50,000?

    (a) The EPA regional office award official for your grant may waive 
your group's $50,000 limit if your group demonstrates that:
    (1) If it received previous TAG funds, you managed those funds 
effectively; and
    (2) Site(s) characteristics indicate additional funds are necessary 
due to the nature or volume of site-related information. In this case, 
three of the ten factors below must occur:
    (i) A Remedial Investigation/Feasibility Study (``RI/FS'') costing 
more than $2 million is performed;
    (ii) Treatability studies or evaluation of new and innovative 
technologies are required as specified in the Record of Decision;
    (iii) EPA reopens the Record of Decision;
    (iv) The site public health assessment (or related activities) 
indicates the need for further health investigations and/or health 
promotion activities;
    (v) EPA designates one or more additional operable units after 
awarding the TAG;
    (vi) The agency leading the cleanup issues an ``Explanation of 
Significant Differences'' (ESD);
    (vii) A legislative or regulatory change results in new site 
information after EPA awards the TAG;
    (viii) EPA expects a cleanup lasting more than eight years from the 
beginning of the RI/FS through construction completion;
    (ix) Significant public concern exists, where large groups of people 
in the community require many meetings, copies, etc.; and
    (x) Any other factor that, in EPA's judgment, indicates that the 
site is unusually complex.
    (b) Your group can also receive more than $50,000 if you are 
geographically close to more than one eligible site (for example, two or 
more sites x $50,000 =

[[Page 645]]

grant of $100,000) and your group wishes to receive funding for 
technical assistance to address multiple eligible sites.

                          What TAGs Can Pay For



Sec. 35.4070  How can my group spend TAG money?

    (a) Your group must use all or most of your funds to procure a 
technical advisor(s) to help you understand the nature of the 
environmental and public health hazards at the site, the various stages 
of health and environmental investigations and activities, cleanup, and 
``operation and maintenance'' of a site, including exposure 
investigation, health study, surveillance program, health promotion 
activities (for example, medical monitoring and pediatric health units), 
remedial investigation, and feasibility study, record of decision, 
remedial design, selection and construction of remedial action, 
operation and maintenance, and removal action. This technical assistance 
should contribute to the public's ability to participate in the decision 
making process by improving the public's understanding of overall 
conditions and activities at the site.
    (b) Your group may use a portion of your funds to:
    (1) Undertake activities that communicate site information to the 
public through newsletters, public meetings or other similar activities;
    (2) Procure a grant administrator to manage your group's grant; and/
or
    (3) Provide one-time health and safety training for your technical 
advisor to gain site access to your local Superfund site. To provide 
this training, you must:
    (i) Obtain written approval from the EPA regional office; and
    (ii) Not spend more than $1,000.00 for this training, including 
travel, lodging and other related costs.



Sec. 35.4075  Are there things my group can't spend TAG money for?

    Your TAG funds cannot be used for the following activities:
    (a) Lawsuits or other legal actions;
    (b) Attorney fees for services:
    (1) Connected to any kind of legal action; or
    (2) That could, if such a relationship were allowable, be 
interpreted as resulting in an attorney/client relationship to which the 
attorney/client privilege would apply;
    (c) The time of your technical advisor to assist an attorney in 
preparing a legal action or preparing and serving as an expert witness 
at any legal proceeding;
    (d) Political activity and lobbying that is unallowable under Office 
of Management and Budget (OMB) Circular A-122, Cost Principles for Non-
Profit Organizations (this restriction includes activities such as 
attempting to influence the outcomes of any Federal, State or local 
election, referendum, initiative, or similar procedure through in-kind 
or cash contributions, endorsements, or publicity, or attempting to 
influence the introduction or passage of Federal or state legislation; 
your EPA regional office can supply you with a copy of this circular);
    (e) Other activities that are unallowable under the cost principles 
stated in OMB Circular A-122 (such as costs of amusement, diversion, 
social activities, fund raising and ceremonials);
    (f) Tuition or other training expenses for your group's members or 
your technical advisor except as Sec. 35.4070(b)(3) allows;
    (g) Any activities or expenditures for your group's members' travel;
    (h) Generation of new primary data such as well drilling and 
testing, including split sampling;
    (i) Reopening or challenging final EPA decisions such as:
    (1) Records of Decision; and/or
    (2) Disputes with EPA under its dispute resolution procedures set 
forth in 40 CFR 30.63 (see Sec. 35.4245); and
    (j) Generation of new health data through biomedical testing (for 
example, blood or urine testing), clinical evaluations, health studies, 
surveillance, registries, and/or public health interventions.

                          How You Get the Money



Sec. 35.4080  Does my group get a lump sum up front, or does EPA reimburse 
us for costs we incur?

    (a) EPA pays your group by reimbursing you for ``allowable'' costs, 
which are costs that are:
    (1) Grant related;

[[Page 646]]

    (2) ``Allocable'';
    (3) ``Reasonable''; and
    (4) Necessary for the operation of the organization or the 
performance of the award.
    (b) You will be reimbursed for the allowable costs up to the amount 
of the TAG if your group incurred the costs during the approved 
``project period'' of the grant (except for allowable costs of 
incorporation which may be incurred prior to the project period), and 
your group is legally required to pay those costs.



Sec. 35.4085  Can my group get an ``advance payment'' to help us get started?

    Yes, a maximum of $5,000.00 in the form of an advance payment is 
available to new recipients.



Sec. 35.4090  If my group is eligible for an advance payment, how do we get 
our funds?

    (a) Your group must submit in writing a request for an advance 
payment and identify what activities, goods or services your group 
requires.
    (b) Your EPA regional office project officer identified in your 
award document must approve the items for which your group seeks advance 
funding.
    (c) Upon approval of your request, EPA will advance cash (in the 
form of a check or electronic funds transfer) to your group, up to 
$5,000, to cover its estimated need to spend funds for an initial period 
generally geared to your group's cycle of spending funds.
    (d) After the initial advance, EPA reimburses your group for its 
actual cash disbursements.



Sec. 35.4095  What can my group pay for with an advance payment?

    (a) Advance payments may be used only for the purchase of supplies, 
postage, the payment of the first deposit to open a bank account, the 
rental of equipment, the first month's rent of office space, 
advertisements for technical advisors and other items associated with 
the start up of your organization specifically requested in your advance 
payment request and approved by your EPA project officer.
    (b) Advance payments must not be used for contracts for technical 
advisors or other contractors.
    (c) Advance payments are not available for the costs of 
incorporation.



Sec. 35.4100  Can my group incur any costs prior to the award of our grant?

    (a) The only costs you may incur prior to the award of a grant from 
EPA are costs associated with incorporation but you do so at your own 
risk.
    (b) If you are awarded a TAG, EPA may reimburse you for preaward 
incorporation costs or allow you to count the costs toward your matching 
funds requirement if the costs are:
    (1) Necessary and reasonable for incorporation; and
    (2) Incurred for the sole purpose of complying with this subpart's 
requirement that your group be incorporated as a nonprofit corporation.

                         How to Apply for a TAG



Sec. 35.4105  What is the first step for getting a TAG?

    To let EPA know of your group's interest in obtaining a TAG, your 
group should first submit to its EPA regional office a Letter of Intent. 
(The addresses of EPA's regional offices' TAG Coordinators are listed in 
Sec. 35.4275.)



Sec. 35.4106  What information should an LOI include?

    The LOI should clearly state that your group intends to apply for a 
TAG, and should identify:
    (a) The name of your group;
    (b) The Superfund site(s) for which your group intends to submit an 
application; and
    (c) Provide the name of a contact person in the group and his or her 
mailing address and telephone number.



Sec. 35.4110  What does EPA do once it receives the first LOI from a group?

    The following table shows what EPA does when it receives the first 
LOI from a group:

[[Page 647]]



------------------------------------------------------------------------
           If your site . . .                     Then EPA . . .
------------------------------------------------------------------------
(a) Is not proposed for listing on the   will advise you in writing that
 NPL or is proposed but no response is    we are not yet accepting TAG
 underway or scheduled to begin.          ``applications'' for your
                                          site. EPA may informally
                                          notify other interested groups
                                          that it has received an LOI.
------------------------------------------------------------------------
(b) Is listed on the NPL or is proposed  will publish a notice in your
 for listing on the NPL and a response    local newspaper to formally
 action is underway.                      notify other interested
                                          parties that they may contact
                                          the first group that sent the
                                          LOI to form a coalition or
                                          they may submit a separate
                                          LOI.
------------------------------------------------------------------------



Sec. 35.4115  After the public notice that EPA has received an LOI, how much 
time does my group have to form a coalition or submit a separate LOI?

    Your group has 30 days (from the date the public notice appears in 
your local newspaper) to submit documentation that you have formed a 
coalition with the first group and any other groups, or to submit a 
separate LOI. This 30-day period is the first 30 days with which your 
group must be concerned.



Sec. 35.4120  What does my group do next?

    (a) After you submit an LOI, one of the first steps in applying for 
your TAG is determining whether your state requires review of your grant 
application. This review allows your governor to stay informed about the 
variety of grants awarded within your state. This process is called 
intergovernmental review. Your EPA regional office can provide you with 
the contact for your state's intergovernmental review process.
    (b) You should call that state contact as early as possible in the 
application process so that you can allow time for this review process 
which may take up to 60 days.
    (c) EPA cannot process your application package without evidence 
that you have submitted it to the state for review, if your state 
requires it.
    (d) EPA cannot award a TAG until the state has completed its 
intergovernmental review.



Sec. 35.4125  What else does my group need to do?

    Once you've determined your state's intergovernmental review 
requirements, you must prepare a TAG application on EPA SF-424, 
Application for Federal Assistance, or those forms and instructions 
provided by EPA that include:
    (a) A ``budget';
    (b) A scope of work;
    (c) Assurances, certifications and other preaward paperwork as 40 
CFR part 30 requires. Your EPA regional office will provide you with the 
required forms.



Sec. 35.4130  What must be included in my group's budget?

    Your budget must clearly show how:
    (a) You will spend the money and how the spending meets the 
objectives of the TAG project;
    (b) Your group will provide the required cash and/or in-kind 
contributions; and
    (c) Your group derived the figures included in the budget.



Sec. 35.4135  What period of time should my group's budget cover?

    The period of time your group's budget covers (the ``funding 
period'' of your grant) will be:
    (a) One which best accommodates your needs;
    (b) Negotiated between your group and EPA; and
    (c) Stated in the ``award document.''

[[Page 648]]



Sec. 35.4140  What must be included in my group's work plan?

    (a) Your scope of work must clearly explain how your group:
    (1) Will organize;
    (2) Intends to use personnel you will procure for management/
coordination and technical advice; and
    (3) Will share and disseminate information to the rest of the 
affected community.
    (b) Your scope of work must also clearly explain your project's 
milestones and the schedule for meeting those milestones.
    (c) Finally, your scope of work must explain how your board of 
directors, technical advisor(s) and ``project manager'' will interact 
with each other.



Sec. 35.4145  How much time do my group or other interested groups have to 
submit a TAG application to EPA?

    (a) Your group must file your application with your EPA regional 
office within the second 30 days after the date the public notice 
appears in your local newspaper announcing that EPA has received an LOI. 
This second 30-day period begins on the day after the first 30-day 
period Sec. 35.4115 describes ends. EPA will only accept applications 
from groups that submitted an LOI within 30 days from the date of that 
public notice.
    (b) If your group requires more time to file a TAG application, you 
may submit a written request asking for an extension. If EPA decides to 
extend the time period for applications in response to your request, it 
will notify, in writing, all groups that submitted an LOI of the new 
deadline for submitting TAG applications.
    (c) EPA will not accept other applications or requests for 
extensions after the final application deadline has passed.



Sec. 35.4150  What happens after my group submits its application to EPA?

    (a) EPA will review your application and send you a letter 
containing written comments telling you what changes need to be made to 
the application to make it complete.
    (b) Your group has 90 days from the date on the EPA letter to make 
the changes to your application and resubmit it to EPA.
    (c) Once the 90-day period ends, EPA will begin the process to 
select a TAG recipient, or, in the case of a single applicant, if, EPA 
does not receive a complete application (meaning, an application that 
does not have the changes provided in the letter described in paragraph 
(b) of this section), then EPA will readvertise the fact that a TAG is 
available and the award process will begin again.



Sec. 35.4155  How does EPA decide whether to award a TAG to our group?

    Once EPA determines your group meets the eligibility requirements in 
Sec. 35.4020 the Agency considers whether and how successfully your 
group meets these criteria, each of which are of equal weight:
    (a) Representation of groups and individuals affected by the site;
    (b) Your group's plans to use the services of a technical advisor 
throughout the Superfund response action; and
    (c) Your group's ability and plan to inform others in the community 
of the information provided by the technical advisor.



Sec. 35.4160  What does EPA do if more than one group applies for a TAG at 
the same site?

    When multiple groups apply, EPA will rank each applicant relative to 
other applicants using the criteria in Sec. 35.4155.



Sec. 35.4161  Does the TAG application process affect the schedule for work 
at my site?

    No, the schedule for response activities at your site is not 
affected by the TAG process.



Sec. 35.4165  When does EPA award a TAG?

    (a) EPA may award TAGs throughout the Superfund process, including 
during operation and maintenance, but we will not award a TAG before the 
start of your site's response action if the site is proposed for listing 
on the NPL.
    (b) Based on the availability of funds, EPA may delay awards of 
grants to qualified applicants.

[[Page 649]]

                            Managing Your TAG



Sec. 35.4170  What kinds of reporting does EPA require?

    There are several types of reports you need to complete at various 
points during the life of your group's grant; the number varies based on 
whether you receive an advance payment:

------------------------------------------------------------------------
                                       Required           Timing and
         Type of report               information          frequency
------------------------------------------------------------------------
(a) Federal Cash Transactions     The amount of       Semiannually
 Report.                           funds advanced to   within 15 working
                                   you or              days following
                                   electronically      the end of the
                                   transferred to      semiannual period
                                   your bank account   which ends June
                                   and how you spent   30 and December
                                   those funds.        31 of each year.
------------------------------------------------------------------------
(b) Minority-Owned Business       Whether your group  Annually, even if
 Enterprise/Women-Owned Business   contracted with a   no contracts have
 Enterprise (MBE/WBE)              MBE/WBE in the      been signed.
 Utilization.                      past Federal
                                   fiscal year, the
                                   value of the
                                   contract, if any,
                                   and the
                                   percentage of
                                   total project
                                   dollars on MBE/
                                   WBEs.
------------------------------------------------------------------------
(c) Progress Report.............  Full description    Quarterly, within
                                   in chart or         45 days after the
                                   narrative format    end of each
                                   of the progress     calendar quarter.
                                   your group made
                                   in relation to
                                   your approved
                                   schedule, budget
                                   and the TAG
                                   project
                                   milestones,
                                   including an
                                   explanation of
                                   special problems
                                   your group
                                   encountered.
------------------------------------------------------------------------
(d) Financial Status Report.....  Status of           Annually, within
                                   project's funds     90 days after the
                                   through             anniversary date
                                   identification of   of the start of
                                   project             your TAG project.
                                   transactions and
                                   within 90 days
                                   after the end of
                                   your TAG's
                                   funding period.
------------------------------------------------------------------------
(e) Final Report................  Description of      Within 90 days
                                   project goals and   after the end of
                                   objectives,         your project.
                                   activities
                                   undertaken to
                                   achieve goals and
                                   objectives,
                                   difficulties
                                   encountered,
                                   technical
                                   advisors' work
                                   products and
                                   funds spent.
------------------------------------------------------------------------


[[Page 650]]



Sec. 35.4175  What other reporting and record keeping requirements are there?

    In addition to the report requirements Sec. 35.4170 describes, EPA 
requires your group to:
    (a) Comply with any reporting requirements in the terms and 
conditions of the ``grant agreement'';
    (b) Keep complete financial records accurately showing how you used 
the Federal funds and the match, whether it is in the form of cash or 
in-kind assistance; and
    (c) Comply with any reporting and record keeping requirements in OMB 
Circular A-122 and 40 CFR part 30.



Sec. 35.4180  Must my group keep financial records after we finish our TAG?

    (a) You must keep TAG financial records for ten years from the date 
of the final Financial Status Report, or until any audit, litigation, 
cost recovery, and/or disputes initiated before the end of the ten-year 
retention period are settled, whichever, is longer.
    (b) At the ten-year mark, you may dispose of your TAG financial 
records if you first get written approval from EPA.
    (c) If you prefer, you may submit the financial records to EPA for 
safekeeping when you give us the final Financial Status Report.



Sec. 35.4185  What does my group do with reports our technical advisor 
prepares for us?

    You must send to EPA a copy of each final written product your 
advisor prepares for you as part of your TAG. We will send them to the 
local Superfund site information repository(ies) where all site-related 
documents are available to the public.

    Procuring a Technical Advisor or Other Contractor With TAG Funds



Sec. 35.4190  How does my group identify a qualified technical advisor?

    (a) Your group must select a technical advisor who possesses the 
following credentials:
    (1) Demonstrated knowledge of hazardous or toxic waste issues, 
relocation issues, redevelopment issues or public health issues as those 
issues relate to hazardous substance/toxic waste issues, as appropriate;
    (2) Academic training in a relevant discipline (for example, 
biochemistry, toxicology, public health, environmental sciences, 
engineering, environmental law and planning); and
    (3) Ability to translate technical information into terms your 
community can understand.
    (b) Your technical advisor for public health issues must have 
received his or her public health or related training at accredited 
schools of medicine, public health or accredited academic institutions 
of other allied disciplines (for example, toxicology).
    (c) Your group should select a technical advisor who has experience 
working on hazardous or toxic waste problems, relocation, redevelopment 
or public health issues, and communicating those problems and issues to 
the public.



Sec. 35.4195  Are there certain people my group cannot select to be our 
technical advisor, grant administrator, or other contractor under the grant?

    Your group may not hire the following:
    (a) The person(s) who wrote the specifications for the ``contract'' 
and/or who helped screen or select the contractor;
    (b) In the case of a technical advisor, a person or entity doing 
work for the Federal or State government or any other entity at the same 
NPL site for which your group is seeking a technical advisor; and
    (c) Any person who is on the List of Parties Excluded from Federal 
Procurement or NonProcurement Programs.



Sec. 35.4200  What restrictions apply to contractors my group procures for 
our TAG?

    When procuring contractors your group:
    (a) Cannot award cost-plus-percentage-of-cost contracts; and
    (b) Must award only to responsible contractors that possess the 
ability to perform successfully under the terms and conditions of a 
proposed contract.

[[Page 651]]



Sec. 35.4205  How does my group procure a technical advisor or any other 
contractor?

    When procuring contractors your group must also:
    (a) Provide opportunity for all qualified contractors to compete for 
your work (see Sec. 35.4210);
    (b) Keep written records of the reasons for all your contracting 
decisions;
    (c) Make sure that all costs are reasonable in a proposed contract;
    (d) Inform EPA of any proposed contract over $1,000.00;
    (e) Provide EPA the opportunity to review a contract before your 
group awards or amends it;
    (f) Perform a ``cost analysis'' to evaluate each element of a 
contractor's cost to determine if it is reasonable, allocable and 
allowable for all contracts over $25,000; and
    (g) Comply with the small business enterprises (SBE), minority-owned 
business enterprises, women-owned business enterprise requirements in 40 
CFR 30.44(b) which outlines steps your group must take to make positive 
efforts to use small businesses, minority-owned firms and women's 
business enterprises. These steps generally say:
    (1) Make sure to use small businesses, minority-owned firms, and 
women's businesses as often as possible.
    (2) Make information on upcoming opportunities available and plan 
time frames for purchases and contracts to encourage and facilitate 
participation by small businesses, minority-owned firms, and women's 
business enterprises.
    (3) When procuring firms for larger contracts, consider whether 
those firms intend to subcontract with small businesses, minority-owned 
firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of those to handle on its own.
    (5) Use the services and help, 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 your contractor awards a contract, require the contractor to 
take the steps in 40 CFR 30.44(b) as summarized in paragraphs (g)(1) 
through (5) of this section.



Sec. 35.4210  Must my group solicit and document bids for our procurements?

    (a) The steps needed to be taken to procure goods and/or services 
depends on the amount of the proposed procurement:

------------------------------------------------------------------------
     If the aggregate amount of the              Then your group
------------------------------------------------------------------------
(1) purchase is $1,000 or less.........  may make the purchase as long
                                          as you make sure the price is
                                          reasonable; no oral or written
                                          bids are necessary.
------------------------------------------------------------------------
(2) proposed contract is over $1,000     must obtain and document oral
 but less than $25,000.                   or written bids from two or
                                          more qualified sources.
------------------------------------------------------------------------
(3) proposed contract is $25,000 to      must:
 $100,000.
------------------------------------------------------------------------
                                         (i) Solicit written bids from
                                          three or more sources who are
                                          willing and able to do the
                                          work;
                                         (ii) Provide potential sources
                                          in the scope of work to be
                                          performed and the criteria
                                          your group will use to
                                          evaluate the bids;
                                         (iii) Objectively evaluate all
                                          bids; and

[[Page 652]]

 
                                         (iv) Notify all unsuccessful
                                          bidders.
------------------------------------------------------------------------
(4) proposed contract is greater than    must follow the procurement
 $100,000.                                regulations in 40 CFR part 30
                                          (these regulations outline the
                                          standards for your group to
                                          use when contracting for
                                          services with Federal funds;
                                          they also contain provisions
                                          on: codes of conduct for the
                                          award and administration of
                                          contracts; competition;
                                          procurement procedures; cost
                                          and price analysis;
                                          procurement records; contract
                                          administration; and contracts
                                          generally).
------------------------------------------------------------------------

    (b) Your group must not divide any procurements into smaller parts 
to get under any of the dollar limits in paragraph (a) of this section.



Sec. 35.4215  What if my group can't find an adequate number of potential 
sources for a technical advisor or other contractor?

    In situations where only one adequate bidder can be found, your 
group may request written authority from the EPA award official to 
contract with the sole bidder.



Sec. 35.4220  How does my group ensure a prospective contractor does not 
have a conflict of interest?

    Your group must require any prospective contractor on any contract 
to provide, with its bid or proposal:
    (a) Information on its financial and business relationship with all 
PRPs at the site, with PRP parent companies, subsidiaries, affiliates, 
subcontractors, contractors, and current clients or attorneys and 
agents. This disclosure requirement includes past and anticipated 
financial and business relationships, and services provided to or on 
behalf of such parties in connection with any proposed or pending 
litigation;
    (b) Certification that, to the best of its knowledge and belief, it 
has disclosed such information or no such information exists; and
    (c) A statement that it will disclose to you immediately any such 
information discovered after submission of its bid or after award.



Sec. 35.4225  What if my group decides a prospective contractor has a 
conflict of interest?

    If, after evaluating the information in Sec. 35.4220, your group 
decides a prospective contractor has a significant conflict of interest 
that cannot be avoided or otherwise resolved, you must exclude him or 
her from consideration.



Sec. 35.4230  What are my group's contractual responsibilities once we 
procure a contractor?

    For contractual responsibilities, your group, not EPA:
    (a) Is responsible for resolving all contractual and administrative 
issues arising out of contracts you enter into under a TAG; you must 
establish a procedure for resolving such issues with your contractor 
which complies with the provisions of 40 CFR 30.41. These provisions say 
your group, not EPA, is responsible for settling all issues related to 
decisions you make in procuring advisors or other contractors with TAG 
funds; and
    (b) Must ensure your contractor(s) perform(s) in accordance with the 
terms and conditions of the contract.

[[Page 653]]



Sec. 35.4235  Are there specific provisions my group's contract(s) must 
contain?

    Your group must include the following provisions in each of its 
contracts:
    (a) Statement of work;
    (b) Schedule for performance;
    (c) Due dates for deliverables;
    (d) Total cost of the contract;
    (e) Payment provisions;
    (f) The following clauses from 40 CFR part 30, appendix A, which 
your EPA regional office can provide to you:
    (1) Equal Employment Opportunity; and
    (2) Suspension and Debarment;
    (g) The following clauses from 40 CFR 30.48:
    (1) Remedies for breaches of contract (40 CFR 30.48(a));
    (2) Termination by the recipient (40 CFR 30.48(b)); and
    (3) Access to records (40 CFR 30.48(d)); and
    (h) Provisions that require your contractor(s) to keep the following 
detailed records as Sec. 35.4180 requires for ten years after the end of 
the contract:
    (1) Acquisitions;
    (2) Work progress reports;
    (3) Expenditures; and
    (4) Commitments indicating their relationship to established costs 
and schedules.

                    Requirements for TAG Contractors



Sec. 35.4240  What provisions must my group's TAG contractor comply with if 
it subcontracts?

    A TAG contractor must comply with the following provisions when 
awarding subcontracts:
    (a) Section 35.4205 (b) pertaining to documentation;
    (b) Section 35.4205 (c) and (f) pertaining to cost;
    (c) Section 35.4195 (c) pertaining to suspension and debarment;
    (d) Section 35.4200 (b) pertaining to responsible contractors;
    (e) Section 35.4205 (g) pertaining to disadvantaged business 
enterprises;
    (f) Section 35.4200 (a) pertaining to unallowable contracts;
    (g) Section 35.4235 pertaining to contract provisions; and
    (h) Cost principles in 48 CFR part 31, the Federal Acquisition 
Regulation, if the contractor and subcontractors are profit-making 
organizations.

              Grant Disputes, Termination, and Enforcement



Sec. 35.4245  How does my group resolve a disagreement with EPA regarding 
our TAG?

    The regulations at 40 CFR 30.63 and 31.70 will govern disputes 
except that, before you may obtain judicial review of the dispute, you 
must have requested the Regional Administrator to review the dispute 
decision official's determination under 40 CFR 31.70(c), and, if you 
still have a dispute, you must have requested the Assistant 
Administrator for the Office of Solid Waste and Emergency Response to 
review the Regional Administrator's decision under 40 CFR 31.70(h).



Sec. 35.4250  Under what circumstances would EPA terminate my group's TAG?

    (a) EPA may terminate your grant if your group materially fails to 
comply with the terms and conditions of the TAG and the requirements of 
this subpart.
    (b) EPA may also terminate your grant with your group's consent in 
which case you and EPA must agree upon the termination conditions, 
including the effective date as 40 CFR 30.61 describes.



Sec. 35.4255  Can my group terminate our TAG?

    Yes, your group may terminate your TAG by sending EPA written 
notification explaining the reasons for the termination and the 
effective date.



Sec. 35.4260  What other steps might EPA take if my group fails to comply 
with the terms and conditions of our award?

    EPA may take one or more of the following actions, under 40 CFR 
30.62, depending on the circumstances:
    (a) Temporarily withhold advance payments until you correct the 
deficiency;
    (b) Not allow your group to receive reimbursement for all or part of 
the activity or action not in compliance;
    (c) Wholly or partly ``suspend'' your group's award;

[[Page 654]]

    (d) Withhold further awards (meaning, funding) for the project or 
program;
    (e) Take enforcement action;
    (f) Place special conditions in your grant agreement; and
    (g) Take other remedies that may be legally available.

                            Closing Out a TAG



Sec. 35.4265  How does my group close out our TAG?

    (a) Within 90 calendar days after the end of the approved project 
period of the TAG, your group must submit all financial, performance and 
other reports as required by Sec. 35.4180. Upon request from your group, 
EPA may approve an extension of this time period.
    (b) Unless EPA authorizes an extension, your group must pay all your 
bills related to the TAG by no later than 90 calendar days after the end 
of the funding period.
    (c) Your group must promptly return any unused cash that EPA 
advanced or paid; OMB Circular A-129, Policies for Federal Credit 
Programs and Non-Tax Receivables, governs unreturned amounts that become 
delinquent debts.

                      Other Things You Need To Know



Sec. 35.4270  Definitions.

    The following definitions apply to this subpart:
    Advance payment means a payment made to a recipient before 
``outlays'' are made by the recipient.
    Affected means subject to an actual or potential health, economic or 
environmental threat. Examples of affected parties include people:
    (1) Who live in areas near NPL facilities, whose health may be 
endangered by releases of hazardous substances at the facility; or
    (2) Whose economic interests are threatened or harmed.
    Affiliated means a relationship between persons or groups where one 
group, directly or indirectly, controls or has the power to control the 
other, or, a third group controls or has the power to control both. 
Factors indicating control include, but are not limited to:
    (1) Interlocking management or ownership (e.g., centralized 
decisionmaking and control);
    (2) Shared facilities and equipment; and
    (3) Common use of employees.
    Allocable cost means a cost which is attributable to a particular 
cost objective, such as a grant, project, service, or other activity, in 
accordance with the relative benefits received. A cost is allocable to a 
Government award if it is treated consistently with other costs incurred 
for the same purpose in like circumstances and if it:
    (1) Is incurred specifically for the award;
    (2) Benefits both the award and other work and can be distributed in 
reasonable proportion to the benefits received; or
    (3) Is necessary to the overall operation of the organization, 
although a direct relationship to any particular cost objective cannot 
be shown.
    Allowable cost means those project costs that are: eligible, 
reasonable, allocable to the project, and necessary to the operation of 
the organization or the performance of the award as provided in the 
appropriate Federal cost principles, in most cases OMB Circular A-122 
(see 40 CFR 30.27), and approved by EPA in the assistance agreement.
    Applicant means any group of people that files an application for a 
TAG.
    Application means a completed formal written request for a TAG that 
you submit to a State or the EPA on EPA form SF-424, Application for 
Federal Assistance (Non-construction Programs).
    Award document or grant agreement is the legal document that 
transfers money or anything of value to your group to accomplish the 
purpose of the TAG project. It specifies funding and project periods, 
EPA's and your group's budget share of ``eligible costs,'' a description 
of the work to be accomplished, and any additional terms and conditions 
that may apply to the grant.
    Award Official means the EPA official who has the authority to sign 
grant agreements.
    Budget means the financial plan for spending all Federal funds and 
your

[[Page 655]]

group's matching share funds (including in-kind contributions) for a TAG 
project that your group proposes and EPA approves.
    Cash contribution means actual non-Federal dollars, or Federal 
dollars if expressly authorized by Federal statute, that your group 
spends for goods, services, or personal property (such as office 
supplies or professional services) used to satisfy the matching funds 
requirement.
    Contract means a written agreement between your group 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.
    Contractor means any party (for example, a technical advisor) to 
whom your group awards a contract.
    Cost analysis is the evaluation of each element of cost to determine 
whether it is reasonable, allocable, and allowable.
    Eligible cost is a cost permitted by statute, program guidance or 
regulations.
    EPA means the Environmental Protection Agency.
    Explanation of Significant Differences (ESD) means the document 
issued by the agency leading a cleanup that describes to the public 
significant changes made to a Record of Decision after the ROD has been 
signed. The ESD must also summarize the information that led to the 
changes and affirm that the revised remedy complies with the ``National 
Contingency Plan'' (NCP) and the statutory requirements of CERCLA.
    Federal facility means a facility that is owned or operated by a 
department, agency, or instrumentality of the United States.
    Funding period (previously called a ``budget period'') means the 
length of time specified in a grant agreement during which your group 
may spend Federal funds. A TAG project period may be comprised of 
several funding periods.
    Grant agreement or award document is the legal document that 
transfers money or anything of value to your group to accomplish the 
purpose of the TAG project. It specifies funding and project periods, 
EPA's and your group's budget share of eligible costs, a description of 
the work to be accomplished, and any additional terms and conditions 
that may apply to the grant.
    In-kind contribution means the value of a non-cash contribution used 
to meet your group's matching funds requirement in accordance with 40 
CFR 30.23. An in-kind contribution may consist of charges for equipment 
or the value of goods and services necessary to the EPA-funded project.
    Letter of intent (LOI) means a letter addressed to your EPA regional 
office which clearly states your group's intention to apply for a TAG. 
The letter tells EPA the name of your group, the Superfund site(s) for 
which your group intends to submit an application, and the name of a 
contact person in the group including a mailing address and telephone 
number.
    Matching funds means the portion of allowable project cost 
contributed toward completing the TAG project using non-Federal funds or 
Federal funds if expressly authorized by Federal statutes. The match may 
include in-kind as well as cash contributions.
    National Contingency Plan (NCP) means the federal government's 
blueprint for responding to both oil spills and hazardous substance 
releases. It lays out the country's national response capability and 
promotes overall coordination among the hierarchy of responders and 
contingency plans.
    National Priorities List (NPL) means the Federal list of priority 
hazardous substance sites, nationwide. Sites on the NPL are eligible for 
long-term cleanup actions financed through the Superfund program.
    Operable unit means a discrete action defined by EPA that comprises 
an incremental step toward completing site cleanup.
    Operation and maintenance means the steps taken after site actions 
are complete to make certain that all actions are effective and working 
properly.
    Outlay means a charge made to the project or program that is an 
allowable cost in terms of costs incurred or in-kind contributions used.

[[Page 656]]

    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 (42 U.S.C. 
9606 or 42 U.S.C. 9607) for the contamination problems at a Superfund 
site.
    Project manager means the person legally authorized to obligate your 
group to the terms and conditions of EPA's regulations and the grant 
agreement, and designated by your group to serve as its principal 
contact with EPA.
    Project period means the period established in the TAG award 
document during which TAG money may be used. The project period may be 
comprised of more than one funding period.
    Reasonable cost means a cost that, in its nature or amount, does not 
exceed that which would be incurred by a prudent person under the 
circumstances prevailing at the time the decision was made to incur the 
costs.
    Recipient means any group that has been awarded a TAG.
    Record of decision (ROD) means a public document that explains the 
cleanup method that will be used at a Superfund site; it is based on 
technical data gathered and analyses performed during the remedial 
investigation and feasibility study, as well as public comments and 
community concerns.
    Remedial investigation/feasibility study (RI/FS) means the phase 
during which EPA conducts risk assessments and numerous studies into the 
nature and extent of the contamination on site, and analyzes alternative 
methods for cleaning up a site.
    Response action means all activities undertaken by EPA, other 
Federal agencies, States, or PRPs to address the problems created by 
hazardous substances at an NPL site.
    Start of response action means the point in time when funding is 
set-aside by either EPA, other Federal agencies, States, or PRPs to 
begin response activities at a site.
    Suspend means an action by EPA 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 (3 
CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), 
Debarment and Suspension.



Sec. 35.4275  Where can my group get the documents this subpart references 
(for example, OMB circulars, other subparts, forms)?

    EPA Headquarters and the regional offices that follow have the 
documents this subpart references available if you need them:
    (a) TAG Coordinator or Grants Office, U.S. EPA Region I, John F. 
Kennedy Federal Building, Boston, MA 02203.
    (b) TAG Coordinator or Grants Office, U.S. EPA Region II, 290 
Broadway, New York, NY 10007-1866.
    (c) TAG Coordinator or Grants Office, U.S. EPA Region III, 1650 Arch 
Street, Philadelphia, PA 19106.
    (d) TAG Coordinator or Grants Office, U.S. EPA Region IV, Atlanta 
Federal Center, 61 Forsyth Street, Atlanta, GA 30303.
    (e) TAG Coordinator or Grants Office, U.S. EPA Region V, Metcalfe 
Federal Building, 77 W. Jackson Blvd., Chicago, IL 60604.
    (f) TAG Coordinator or Grants Office, U.S. EPA Region VI, Wells 
Fargo Bank, Tower at Fountain Place, 1445 Ross Avenue, Suite 1200, 
Dallas, TX 752020-2733.
    (g) TAG Coordinator or Grants Office, U.S. EPA Region VII, 901 N. 
5th Street, Kansas City, KS 66101.
    (h) TAG Coordinator or Grants Office, U.S. EPA Region VIII, 999 18th 
Street, Suite 500, Denver, CO 80202-2466.
    (i) TAG Coordinator or Grants Office, U.S. EPA Region IX, 75 
Hawthorne Street, San Francisco, CA 94105.
    (j) TAG Coordinator or Grants Office, U.S. EPA Region X, 1200 6th 
Avenue, Seattle, WA 98101.
    (k) National TAG Coordinator, U.S. EPA Mail Code: 5204-G, Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW, Washington, DC 20460.

Subpart N [Reserved]

[[Page 657]]



  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''), 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

[[Page 658]]

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 (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

[[Page 659]]

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.
    (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.

[[Page 660]]

    (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.
    (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

[[Page 661]]

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 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,

[[Page 662]]

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 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

[[Page 663]]

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 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

[[Page 664]]

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 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

[[Page 665]]

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 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 
Secs. 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 waste.

    (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,

[[Page 666]]

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 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.

[[Page 667]]

                 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.
    (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 (Secs. 35.6270 
through 35.6290 of this subpart), property (Secs. 35.6300 through 
35.6450), procurement (Secs. 35.6550 through 35.6610), reporting

[[Page 668]]

(Secs. 35.6650 through 35.6670), records (Secs. 35.6700 through 
35.6710), and other administrative requirements under a Cooperative 
Agreement (Secs. 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 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

[[Page 669]]

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 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 (Secs. 35.6270 
through 35.6290 of this subpart), property (Secs. 35.6300 through 
35.6450), procurement (Secs. 35.6550 through 35.6610), reporting 
(Secs. 35.6650 through 35.6670), records (Secs. 35.6700 through 
35.6710), and other administrative requirements under a Cooperative 
Agreement (Secs. 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

[[Page 670]]

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.
    (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 Secs. 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).

[[Page 671]]

    (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).
    (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

[[Page 672]]

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 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 Secs. 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 Secs. 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

[[Page 673]]

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 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 Secs. 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.

[[Page 674]]

    (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 
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

[[Page 675]]

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 
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 Secs. 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.

[[Page 676]]

          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.

   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

[[Page 677]]

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.
    (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 Secs. 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.

[[Page 678]]

    (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 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 Secs. 35.6270(a) (1) and 
(2); 35.6320 (a) and (b); 35.6335; 35.6700; and 35.6705. For additional 
contractor requirements, see also Secs. 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.

[[Page 679]]

    (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.
    (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

[[Page 680]]

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 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.

[[Page 681]]

    (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.



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

[[Page 682]]

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.



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:

[[Page 683]]

    (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) 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

[[Page 684]]

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.



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

[[Page 685]]

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 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 Secs. 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

[[Page 686]]

    (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;
    (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

[[Page 687]]

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.



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 
Secs. 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 Secs. 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;

[[Page 688]]

    (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:
    (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

[[Page 689]]

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
    (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:

[[Page 690]]

    (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. 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

[[Page 691]]

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 
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.

[[Page 692]]

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 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

[[Page 693]]

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 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.



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.
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

[[Page 694]]

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 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

[[Page 695]]

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]



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]

[[Page 696]]



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 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

[[Page 697]]

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 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.

[[Page 698]]

    (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 Secs. 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 
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

[[Page 699]]

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;
    (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]

[[Page 700]]



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 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,

[[Page 701]]

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 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 Secs. 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

[[Page 702]]

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 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

[[Page 703]]

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 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

[[Page 704]]

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, (3903R), 1200 Pennsylvania Ave., NW., 
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:

    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:

[[Page 705]]

    (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




                           Subpart A--General

Sec.
46.100  Purpose.
46.105  Authority.
46.110  Objectives.
46.115  Types of fellowships.
46.120  Definition.
46.125  Exceptions.
46.130  Debarment and suspension.

                   Subpart B--Applying for Fellowships

46.135  Eligibility.
46.140  Benefits.
46.145  International travel and work.
46.150  Request for applications.
46.155  Submission of applications.
46.160  Evaluation of applications.
46.165  Notification.

                            Subpart C--Award

46.170  Fellowship agreement.
46.175  Terms and conditions.
46.180  Acceptance of fellowship award.

                    Subpart D--During the Fellowship

46.185  Activation notice.
46.190  Fellowship agreement amendments.
46.195  Project period.
46.200  Payment.
46.205  Intangible property.
46.210  Termination.
46.215  Enforcement.
46.220  Disputes.

                     Subpart E--After the Fellowship

46.225  Equipment.
46.230  Closeout procedures.

    Authority: Section 103(b)(5) of the Clean Air Act, as amended (42 
U.S.C. 7403(b)(5)); sections 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)); section 1442 of 
the Safe Drinking Water Act, as amended (42 U.S.C. 300j-1); section 8001 
of the Solid Waste Disposal Act, as amended (42 U.S.C. 6981); section 10 
of the Toxic Substances Control Act, as amended (15 U.S.C. 2609); 
section 20 of the Federal Insecticide, Fungicide, and Rodenticide Act, 
as amended (7 U.S.C. 136r); sections 104(k)(6)and 311 of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(42 U.S.C. 9604(k)(6) and 42 U.S.C. 9660).

    Source: 68 FR 16710, Apr. 4, 2003, unless otherwise noted.



                           Subpart A--General



Sec. 46.100  Purpose.

    This part establishes the requirements for all Environmental 
Protection Agency (EPA) fellowship awards.



Sec. 46.105  Authority.

    EPA is authorized to award fellowships under the statutes listed in 
this section. EPA is not required to award fellowships under all of the 
listed authorities, but does so at its discretion.
    (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 Water Act, as 
amended (33 U.S.C. 1254(b)(5) and (g)(3)(B));
    (c) Section 1442 of the Safe Drinking Water Act, as amended (42 
U.S.C. 300j-1);

[[Page 706]]

    (d) Section 8001 of the Solid Waste Disposal Act, as amended (42 
U.S.C. 6981);
    (e) Section 10 of the Toxic Substances Control Act, as amended (15 
U.S.C. 2609);
    (f) Section 20 of the Federal Insecticide, Fungicide, and 
Rodenticide Act, as amended (7 U.S.C. 136r); and
    (g) Sections 104(k)(6) and 311 of the Comprehensive Environmental 
Response, Compensation, and Liability Act (42 U.S.C. 9604(k)(6) and 42 
U.S.C. 9660).



Sec. 46.110  Objectives.

    EPA awards fellowships to help individuals participate in academic 
and professional educational opportunities in fields related to 
pollution control and environmental protection. Fellowships provide 
support for undergraduate and graduate students, including staff of 
state, local or Tribal agencies responsible for environmental pollution 
control and environmental protection.



Sec. 46.115  Types of fellowships.

    In general, EPA may award you one of two kinds of fellowships.
    (a) The first are fellowships to students who are selected on the 
basis of EPA requests for applications and program announcements. These 
fellowships may assist you with the costs of academic and professional 
career studies in pollution control and environmental protection in 
fields such as science, engineering, technology, social science, and 
specialty areas supporting environmental protection efforts.
    (b) The second are fellowships awarded to current or prospective 
employees of state, local and Tribal environmental pollution control or 
regulatory agencies who are nominated to receive fellowships by their 
agency. These fellowships may assist you with the costs of academic and 
professional career studies in pollution control and environmental 
protection in fields such as science, engineering, technology, social 
science, and specialty areas supporting environmental protection 
efforts.



Sec. 46.120  Definition.

    Fellow: You are a fellow if you receive an EPA fellowship award.



Sec. 46.125  Exceptions.

    The Director, Grants Administration Division, may approve exceptions 
from this part on a case-by-case or class basis.



Sec. 46.130  Debarment and suspension.

    EPA will not award you a fellowship if you are debarred, suspended 
or otherwise excluded from participation in federal programs. Names of 
individuals who are excluded are included on the List of Parties 
Excluded from Federal Procurement and Nonprocurement Programs maintained 
and distributed by the General Services Administration.



                   Subpart B--Applying for Fellowships



Sec. 46.135  Eligibility.

    If you wish to apply for an EPA fellowship, you must be:
    (a) A citizen of the United States, its territories, or possessions, 
or lawfully admitted to the United States for permanent residence;
    (b) Accepted by or an applicant to an accredited educational 
institution for academic credit in an educational program directly 
related to pollution control or environmental protection; and
    (c) If you are applying for a fellowship offered specifically to 
employees or prospective employees of state, local and Tribal 
organizations, you must be nominated by the head of the state, local or 
Tribal agency, or designee, based on the need for academic and 
professional career study to enhance your skills related to the needs of 
the organization.



Sec. 46.140  Benefits.

    EPA fellowships may include funds to help you pay such things as:
    (a) A part, or all, of your tuition and fees, as determined 
appropriate by EPA.
    (b) An expense allowance for books, supplies, and equipment 
(equipment is an item with a unit acquisition cost of more than $5,000) 
as determined appropriate by EPA. You may use this allowance for 
expenses that are necessary for your education, such as the cost of 
health insurance, supplies, and travel

[[Page 707]]

to conduct research and attend technical meetings relating to the 
fellowship. You may acquire equipment only with EPA's written approval 
and there will be very few instances where the purchase of equipment is 
authorized (see Sec. 46.225.)
    (c) A stipend determined by the EPA program office based on EPA's 
resources and your course load.



Sec. 46.145  International travel and work.

    (a) You may use fellowship funds for travel to or work in a foreign 
country only if the travel or work is approved by the EPA Office of 
International Activities (OIA). You will be notified of OIA approval in 
the fellowship award or in a letter from the EPA project officer or the 
award official.
    (b) If you travel to or from a foreign country and the travel cost 
is paid under the fellowship agreement, you must comply with the Fly 
America Act. In accordance with that Act, you must travel on U.S. air 
carriers certificated under 49 U.S.C. 1371, to the extent that such 
carriers provide service, even if the foreign air carrier costs less 
than the American air carrier.



Sec. 46.150  Request for applications.

    EPA generally requests fellowship applications through electronic 
and printed announcements or other means designed to inform potential 
applicants.



Sec. 46.155  Submission of applications.

    The request for applications or program announcement will advise you 
how to file an application and what information you must include. You 
must submit applications for fellowships on EPA's ``Fellowship 
Application'' (EPA Form 5770-2) or in any other form EPA designates. EPA 
will provide instructions for completing the application. You must 
submit the original and two copies of the application unless the 
instructions require otherwise. Alternatively, EPA may allow you to 
submit applications electronically. It is also likely that EPA will 
require you to submit undergraduate and graduate transcripts to the 
office identified in the request for applications or program 
announcement.



Sec. 46.160  Evaluation of applications.

    EPA will evaluate your application based on criteria identified in 
the request for applications or program announcement. Evaluation 
criteria may include:
    (a) The relevance of your proposed studies to EPA's mission.
    (b) Your potential for success, as reflected by your academic 
record, letters of reference, and any other available information.
    (c) The availability of EPA funds.



Sec. 46.165  Notification.

    If EPA does not select you to receive a fellowship, we generally 
will notify you within 60 days after final selections are made. If you 
are a successful applicant, EPA will send you a fellowship agreement in 
accordance with Sec. 46.170.



                            Subpart C--Award



Sec. 46.170  Fellowship agreement.

    (a) The ``Fellowship Agreement'' (EPA Form 5770-8) is the written 
agreement, including amendments, between EPA and you. The fellowship 
agreement will state the amount of Federal funds awarded and the terms 
and conditions governing the fellowship.
    (b) The EPA award official may approve any pre-award costs you 
incurred, if determined appropriate by the award official. You incur 
pre-award costs at your own risk (see also Sec. 46.195).



Sec. 46.175  Terms and conditions.

    (a) If EPA awards you a fellowship on the basis of a nomination by 
your current or prospective state, local or Tribal government employer, 
by accepting the fellowship agreement you agree to remain in the 
employment of the state, local, or Tribal employer for twice the period 
of the fellowship. If you fail to meet this obligation, EPA may, after 
consultation with your employer or prospective employer, require you to 
repay the amount of the fellowship.
    (b) You must submit a copy of your transcript to the EPA project 
officer after the completion of each year of

[[Page 708]]

the fellowship, if required by the fellowship agreement. You must also 
submit copies of any publications and other products from the research, 
if required.
    (c) EPA may require you to provide various performance reports under 
your fellowship, but we will not require reports more frequently than 
quarterly. At the end of the fellowship, you must submit a final report 
and other documentation, if required in the fellowship agreement.



Sec. 46.180  Acceptance of fellowship award.

    You must accept your fellowship by signing and returning the EPA 
award form (EPA Form 5770-8) to the EPA award official within three 
weeks after receipt, or within an extension of time approved by the 
award official. If you do not sign and return the Fellowship agreement 
to the award official or request an extension of the acceptance time 
within three calendar weeks after receiving the agreement, the award 
official may void the agreement. EPA will not pay for costs incurred 
under voided agreements.



                    Subpart D--During the Fellowship



Sec. 46.185  Activation notice.

    (a) Each fellowship includes a ``Fellowship Activation Notice'' (EPA 
Form 5770-7). You must complete, sign, and obtain other appropriate 
signatures on the Activation Notice when the program supported by the 
fellowship agreement begins. In certain instances, e.g., if your program 
of study is at an EPA facility, the EPA project officer may sign as 
sponsor on the Activation Notice. You must submit the Activation Notice 
to the award official.
    (b) If you do not submit the Activation Notice (EPA Form 5770-7) 
within 90 days after the date of the award, the award official may 
initiate action to terminate the fellowship agreement in accordance with 
Sec. 46.210.



Sec. 46.190  Fellowship agreement amendments.

    (a) If you need to make any of the changes listed in paragraphs 
(a)(1) thorough (3) of this section, you must notify the project officer 
and receive a formal amendment (EPA Form 5770-8) approving the changes. 
You must sign and return one copy of each amendment to the award 
official. If you make the change before you receive the amendment, you 
do so at your own risk. Changes that require formal amendments are:
    (1) A change in the amount of the fellowship;
    (2) A change in the academic institution you attend; or
    (3) A change in the duration of your fellowship.
    (b) You must obtain the EPA project officer's written approval of 
changes in the field of study or approved research project.
    (c) You do not need EPA approval of minor changes that are 
consistent with the objective of the fellowship agreement. Minor changes 
do not, however, obligate EPA to provide additional funds for any costs 
you incur in excess of the fellowship agreement amount.



Sec. 46.195  Project period.

    Based on the ``Date Fellow Will Enter on Duty'' which you enter on 
the Activation Notice (see Sec. 46.185(a)), EPA will establish the 
project period for the fellowship. If you incur costs before the date of 
the fellowship award, the date on the Activation Notice must reflect 
that fact (see also Sec. 46.170(b)).



Sec. 46.200  Payment.

    EPA will not make payments under a fellowship agreement until the 
award official receives the signed ``Fellowship Activation Notice'' (EPA 
Form 5770-7) as required by Sec. 46.185. Unless the fellowship provides 
another payment process, EPA makes payments as follows:
    (a) EPA pays tuition and fees directly to the educational 
institution.
    (b) EPA pays any stipend directly to you on a monthly or other basis 
approved by the project officer and included in the fellowship 
agreement.
    (c) EPA pays any book or other expense allowance to you or to the 
educational institution, as specified in the fellowship agreement. If 
EPA pays your expense allowance to the educational institution, the 
institution may deduct not more than two percent

[[Page 709]]

of the expense allowance as a handling fee.



Sec. 46.205  Intangible property.

    In general, if you develop intangible property under a fellowship 
agreement (e.g., copyrighted software), 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. 
EPA's requirements for dealing with such intangible property are found 
at 40 CFR 30.36 of EPA's Uniform Administrative Requirements for Grants 
and Agreements with Institutions of Higher Education, Hospitals, and 
Other Non-Profit Organizations.



Sec. 46.210  Termination.

    (a) EPA may terminate your fellowship agreement in whole or in part 
in accordance with the following:
    (1) If you fail to submit the ``Fellowship Activation Notice'' as 
required by Sec. 46.185.
    (2) If you fail to comply with the terms and conditions of the 
fellowship agreement.
    (b) You may voluntarily terminate your fellowship by sending the 
award official written notification setting forth the reasons for 
termination and the effective date. In that case, the EPA project 
officer may discuss the terms of the termination with you, and EPA may 
send you a letter or other document which states any termination 
conditions.
    (c) Costs resulting from obligations you incur after termination of 
an award are not allowable unless EPA expressly authorizes them in the 
notice of termination or subsequently approves them. Costs after 
termination which are necessary and not reasonably avoidable are 
allowable if:
    (1) The cost results from obligations which you properly incurred 
before the effective date of termination, were not in anticipation of 
the termination, and are noncancellable; and
    (2) The cost would be allowable if the award expired normally.



Sec. 46.215  Enforcement.

    (a) You must use fellowship funds for the purposes stated in the 
fellowship agreement. If you fail to comply with the terms and 
conditions of an award, EPA may take one or more of the following 
actions, as appropriate:
    (1) Temporarily withhold or suspend payments pending your correction 
of the deficiency or pending other enforcement by EPA;
    (2) Disallow all or part of the cost of the activity or action not 
in compliance;
    (3) Wholly or partly terminate the fellowship agreement in 
accordance with Sec. 46.210(a);
    (4) Withhold the award of additional funds under the fellowship; or
    (5) Take other remedies that may be legally available.
    (b) In taking an enforcement action, EPA will provide you an 
opportunity for hearing, appeal, or other administrative proceeding to 
which you are entitled under any statute or regulation applicable to the 
action involved, including Sec. 46.220.
    (c) The enforcement remedies identified in this section, including 
withholding of payment and termination, do not preclude debarment and 
suspension action under Executive Orders 12549 and 12689 and EPA's 
implementing regulations (40 CFR part 32).



Sec. 46.220  Disputes.

    (a) If you and the EPA award official or project officer have a 
disagreement, you should make reasonable efforts to resolve it at that 
level.
    (b) If you cannot reach agreement, an 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. The dispute procedures 
outlined at 40 CFR part 31, subpart F, will apply.



                     Subpart E--After the Fellowship



Sec. 46.225  Equipment.

    (a) If EPA authorizes you to purchase equipment (see Sec. 46.140(b)) 
and the equipment retains a fair market value of more than $5,000, you 
must request disposition instructions from the EPA project officer when 
you no longer need it for the work under the fellowship.

[[Page 710]]

    (b) If you purchase an item with an acquisition cost of $5,000 or 
less, the item belongs to you.



Sec. 46.230  Closeout procedures.

    (a) You must submit the ``EPA Fellowship Completion of Studies 
Notice'' (EPA Form 5770-9) signed by your sponsor or department head of 
the educational institution when the project period ends. In certain 
instances, e.g., your program of study is at an EPA facility, the EPA 
project officer may sign as sponsor on the Completion of Studies Notice. 
You may request an extension to submit the form if you need it.
    (b) You must retain all records related to your fellowship agreement 
for three years after the completion date you insert on the ``Completion 
of Studies Notice'' (EPA Form 5770-9).
    (c) EPA, the Inspector General, Comptroller General of the United 
States, or any of their duly authorized representatives, has the right 
of timely and unrestricted access to your documents, papers, or other 
records related to your fellowship, in order to make audits, 
examinations, excerpts, transcripts and copies of 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.



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.

    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

[[Page 711]]

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 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

[[Page 712]]

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.



PART 49--TRIBAL CLEAN AIR ACT AUTHORITY--Table of Contents




                       Subpart A--Tribal Authority

Sec.
49.1  Program overview.
49.2  Definitions.
49.3  General Tribal Clean Air Act authority.
49.4  Clean Air Act provisions for which it is not appropriate to treat 
          tribes in the same manner as States.
49.5  Tribal requests for additional Clean Air Act provisions for which 
          it is not appropriate to treat tribes in the same manner as 
          States.
49.6  Tribal eligibility requirements.
49.7  Request by an Indian tribe for eligibility determination and Clean 
          Air Act program approval.
49.8  Provisions for tribal criminal enforcement authority.
49.9  EPA review of tribal Clean Air Act applications.
49.10  EPA review of State Clean Air Act programs.
49.11  Actions under section 301(d)(4) authority.
49.12-49.21  [Reserved]
49.22  Federal implementation plan for Tri-cities landfill, Salt River 
          Pima-Maricopa Indian Community.
49.23-49.50  [Reserved]

                      Subpart B--General Provisions

49.51-49.100  [Reserved]

        Subpart C--General Federal Implementation Plan Provisions

49.101-49.200  [Reserved]

          Subpart D--Implementation Plans for Tribes--Region I

49.201-49.470  [Reserved]

          Subpart E--Implementation Plans for Tribes--Region II

49.471-49.680  [Reserved]

         Subpart F--Implementation Plans for Tribes--Region III

49.681-49.710  [Reserved]

          Subpart G--Implementation Plans for Tribes--Region IV

49.711-49.920  [Reserved]

          Subpart H--Implementation Plans for Tribes--Region V

49.921-49.1970  [Reserved]

          Subpart I--Implementation Plans for Tribes--Region VI

49.1971-49.3920  [Reserved]

         Subpart J--Implementation Plans for Tribes--Region VII

49.3921-49.4160  [Reserved]

         Subpart K--Implementation Plans for Tribes--Region VIII

49.4161-49.5510  [Reserved]

          Subpart L--Implementation Plans for Tribes--Region IX

49.5511-49.9860  [Reserved]

          Subpart M--Implementation Plans for Tribes--Region X

49.9861-49.10700  [Reserved]

  Implementation Plan for the Shoshone-Bannock Tribes of the Fort Hall 
                           Indian Reservation

49.10701  Identification of plan.
49.10702  Approval status.
49.10703  Legal authority. [Reserved]
49.10704  Source surveillance. [Reserved]
49.10705  Classification of regions for episode plans.
49.10706  Contents of implementation plan.
49.10707  EPA-approved tribal rules and plans. [Reserved]
49.10708  Permits to construct.
49.10709  Permits to operate. [Reserved]
49.10710  Federally-promulgated regulations and federal implementation 
          plans.
49.10711  Federal Implementation Plan for the Astaris-Idaho LLC Facility 
          (formerly

[[Page 713]]

          owned by FMC Corporation) in the Fort Hall PM-10 Nonattainment 
          Area.
49.10712-49.17810  [Reserved]

Appendix to Subpart M--Alphabetical Listing of Tribes and Corresponding 
          Sections

    Authority: 42 U.S.C. 7401, et seq.

    Source: 63 FR 7271, Feb. 12, 1998, unless otherwise noted. Subparts 
B-L were added at 65 FR 51433, Aug 23, 2000.



                       Subpart A--Tribal Authority



Sec. 49.1  Program overview.

    (a) The regulations in this part identify those provisions of the 
Clean Air Act (Act) for which Indian tribes are or may be treated in the 
same manner as States. In general, these regulations authorize eligible 
tribes to have the same rights and responsibilities as States under the 
Clean Air Act and authorize EPA approval of tribal air quality programs 
meeting the applicable minimum requirements of the Act.
    (b) Nothing in this part shall prevent an Indian tribe from 
establishing additional or more stringent air quality protection 
requirements not inconsistent with the Act.



Sec. 49.2  Definitions.

    (a) Clean Air Act or Act means those statutory provisions in the 
United States Code at 42 U.S.C. 7401, et seq.
    (b) Federal Indian Reservation, Indian Reservation or Reservation 
means 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.
    (c) Indian tribe or tribe means any Indian tribe, band, nation, or 
other organized group or community, including any Alaska Native village, 
which is federally recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians.
    (d) Indian Tribe Consortium or Tribal Consortium means a group of 
two or more Indian tribes.
    (e) State means a State, the District of Columbia, the Commonwealth 
of Puerto Rico, the Virgin Islands, Guam, and American Samoa and 
includes the Commonwealth of the Northern Mariana Islands.



Sec. 49.3  General Tribal Clean Air Act authority.

    Tribes meeting the eligibility criteria of Sec. 49.6 shall be 
treated in the same manner as States with respect to all provisions of 
the Clean Air Act and implementing regulations, except for those 
provisions identified in Sec. 49.4 and the regulations that implement 
those provisions.



Sec. 49.4  Clean Air Act provisions for which it is not appropriate to treat 
tribes in the same manner as States.

    Tribes will not be treated as States with respect to the following 
provisions of the Clean Air Act and any implementing regulations 
thereunder:
    (a) Specific plan submittal and implementation deadlines for NAAQS-
related requirements, including but not limited to such deadlines in 
sections 110(a)(1), 172(a)(2), 182, 187, 189, and 191 of the Act.
    (b) The specific deadlines associated with the review and revision 
of implementation plans related to major fuel burning sources in section 
124 of the Act.
    (c) The mandatory imposition of sanctions under section 179 of the 
Act because of a failure to submit an implementation plan or required 
plan element by a specific deadline, or the submittal of an incomplete 
or disapproved plan or element.
    (d) The provisions of section 110(c)(1) of the Act.
    (e) Specific visibility implementation plan submittal deadlines 
established under section 169A of the Act.
    (f) Specific implementation plan submittal deadlines related to 
interstate commissions under sections 169B(e)(2), 184(b)(1) and (c)(5) 
of the Act. For eligible tribes participating as members of such 
commissions, the Administrator shall establish those submittal deadlines 
that are determined to be practicable or, as with other non-
participating tribes in an affected transport region, provide for 
Federal implementation of necessary measures.
    (g) Any provisions of the Act requiring as a condition of program 
approval the demonstration of criminal enforcement authority or any 
provisions of the Act providing for the delegation of

[[Page 714]]

such criminal enforcement authority. Tribes seeking approval of a Clean 
Air Act program requiring such demonstration may receive program 
approval if they meet the requirements of Sec. 49.8.
    (h) The specific deadline for the submittal of operating permit 
programs in section 502(d)(1) of the Act.
    (i) The mandatory imposition of sanctions under section 502(d)(2)(B) 
because of failure to submit an operating permit program or EPA 
disapproval of an operating permit program submittal in whole or part.
    (j) The ``2 years after the date required for submission of such a 
program under paragraph (1)'' provision in section 502(d)(3) of the Act.
    (k) Section 502(g) of the Act, which authorizes a limited interim 
approval of an operating permit program that substantially meets the 
requirements of Title V, but is not fully approvable.
    (l) The provisions of section 503(c) of the Act that direct 
permitting authorities to establish a phased schedule assuring that at 
least one-third of the permit applications submitted within the first 
full year after the effective date of an operating permit program (or a 
partial or interim program) will be acted on by the permitting authority 
over a period not to exceed three years after the effective date.
    (m) The provisions of section 507(a) of the Act that specify a 
deadline for the submittal of plans for establishing a small business 
stationary source technical and environmental compliance assistance 
program.
    (n) The provisions of section 507(e) of the Act that direct the 
establishment of a Compliance Advisory Panel.
    (o) The provisions of section 304 of the Act that, read together 
with section 302(e) of the Act, authorize any person who provides the 
minimum required advance notice to bring certain civil actions in the 
Federal district courts against States in their capacity as States.
    (p) The provisions of section 502(b)(6) of the Act that require that 
review of a final permit action under the Title V permitting program be 
``judicial'' and ``in State court,'' and the provisions of section 
502(b)(7) of the Act that require that review of a failure on the part 
of the permitting authority to act on permit applications or renewals by 
the time periods specified in section 503 of the Act be ``judicial'' and 
``in State court.''
    (q) The provision of section 105(a)(1) that limits the maximum 
Federal share for grants to pollution control agencies to three-fifths 
of the cost of implementing programs for the prevention and control of 
air pollution or implementation of national primary and secondary 
ambient air quality standards.



Sec. 49.5  Tribal requests for additional Clean Air Act provisions for which 
it is not appropriate to treat tribes in the same manner as States.

    Any tribe may request that the Administrator specify additional 
provisions of the Clean Air Act for which it would be inappropriate to 
treat tribes in general in the same manner as States. Such request 
should clearly identify the provisions at issue and should be 
accompanied with a statement explaining why it is inappropriate to treat 
tribes in the same manner as States with respect to such provisions.



Sec. 49.6  Tribal eligibility requirements.

    Sections 301(d)(2) and 302(r), 42 U.S.C. 7601(d)(2) and 7602(r), 
authorize the Administrator to treat an Indian tribe in the same manner 
as a State for the Clean Air Act provisions identified in Sec. 49.3 if 
the Indian tribe meets the following criteria:
    (a) The applicant is an Indian tribe recognized by the Secretary of 
the Interior;
    (b) The Indian tribe has a governing body carrying out substantial 
governmental duties and functions;
    (c) The functions to be exercised by the Indian tribe pertain to the 
management and protection of air resources within the exterior 
boundaries of the reservation or other areas within the tribe's 
jurisdiction; and
    (d) The Indian tribe is reasonably expected to be capable, in the 
EPA Regional Administrator's judgment, of carrying out the functions to 
be exercised in a manner consistent with the terms and purposes of the 
Clean Air Act and all applicable regulations.

[[Page 715]]



Sec. 49.7  Request by an Indian tribe for eligibility determination and 
Clean Air Act program approval.

    (a) An Indian tribe may apply to the EPA Regional Administrator for 
a determination that it meets the eligibility requirements of Sec. 49.6 
for Clean Air Act program approval. The application shall concisely 
describe how the Indian tribe will meet each of the requirements of 
Sec. 49.6 and should include the following information:
    (1) A statement that the applicant is an Indian tribe recognized by 
the Secretary of the Interior.
    (2) A descriptive statement demonstrating that the applicant is 
currently carrying out substantial governmental duties and powers over a 
defined area. This statement should:
    (i) Describe the form of the tribal government;
    (ii) Describe the types of government functions currently performed 
by the tribal governing body such as, but not limited to, the exercise 
of police powers affecting (or relating to) the health, safety, and 
welfare of the affected population; taxation; and the exercise of the 
power of eminent domain; and
    (iii) Identify the source of the tribal government's authority to 
carry out the governmental functions currently being performed.
    (3) A descriptive statement of the Indian tribe's authority to 
regulate air quality. For applications covering areas within the 
exterior boundaries of the applicant's reservation the statement must 
identify with clarity and precision the exterior boundaries of the 
reservation including, for example, a map and a legal description of the 
area. For tribal applications covering areas outside the boundaries of a 
reservation the statement should include:
    (i) A map or legal description of the area over which the 
application asserts authority; and
    (ii) A statement by the applicant's legal counsel (or equivalent 
official) that describes the basis for the tribe's assertion of 
authority (including the nature or subject matter of the asserted 
regulatory authority) which may include a copy of documents such as 
tribal constitutions, by-laws, charters, executive orders, codes, 
ordinances, and/or resolutions that support the tribe's assertion of 
authority.
    (4) A narrative statement describing the capability of the applicant 
to administer effectively any Clean Air Act program for which the tribe 
is seeking approval. The narrative statement must demonstrate the 
applicant's capability consistent with the applicable provisions of the 
Clean Air Act and implementing regulations and, if requested by the 
Regional Administrator, may include:
    (i) A description of the Indian tribe's previous management 
experience which may include the administration of programs and services 
authorized by the Indian Self-Determination and Education Assistance Act 
(25 U.S.C. 450, et seq.), the Indian Mineral Development Act (25 U.S.C. 
2101, et seq.), or the Indian Sanitation Facility Construction Activity 
Act (42 U.S.C. 2004a);
    (ii) A list of existing environmental or public health programs 
administered by the tribal governing body and a copy of related tribal 
laws, policies, and regulations;
    (iii) A description of the entity (or entities) that exercise the 
executive, legislative, and judicial functions of the tribal government;
    (iv) A description of the existing, or proposed, agency of the 
Indian tribe that will assume primary responsibility for administering a 
Clean Air Act program (including a description of the relationship 
between the existing or proposed agency and its regulated entities);
    (v) A description of the technical and administrative capabilities 
of the staff to administer and manage an effective air quality program 
or a plan which proposes how the tribe will acquire administrative and 
technical expertise. The plan should address how the tribe will obtain 
the funds to acquire the administrative and technical expertise.
    (5) A tribe that is a member of a tribal consortium may rely on the 
expertise and resources of the consortium in demonstrating under 
paragraph (a)(4) of this section that the tribe is reasonably expected 
to be capable of carrying out the functions to be exercised consistent 
with Sec. 49.6(d). A tribe relying on a consortium in this manner must 
provide reasonable assurances that the

[[Page 716]]

tribe has responsibility for carrying out necessary functions in the 
event the consortium fails to.
    (6) Where applicable Clean Air Act or implementing regulatory 
requirements mandate criminal enforcement authority, an application 
submitted by an Indian tribe may be approved if it meets the 
requirements of Sec. 49.8.
    (7) Additional information required by the EPA Regional 
Administrator which, in the judgment of the EPA Regional Administrator, 
is necessary to support an application.
    (8) Where the applicant has previously received authorization for a 
Clean Air Act program or for any other EPA-administered program, the 
applicant need only identify the prior authorization and provide the 
required information which has not been submitted in the previous 
application.
    (b) A tribe may simultaneously submit a request for an eligibility 
determination and a request for approval of a Clean Air Act program.
    (c) A request for Clean Air Act program approval must meet any 
applicable Clean Air Act statutory and regulatory requirements. A 
program approval request may be comprised of only partial elements of a 
Clean Air Act program, provided that any such elements are reasonably 
severable, that is, not integrally related to program elements that are 
not included in the plan submittal, and are consistent with applicable 
statutory and regulatory requirements.



Sec. 49.8  Provisions for tribal criminal enforcement authority.

    To the extent that an Indian tribe is precluded from asserting 
criminal enforcement authority, the Federal Government will exercise 
primary criminal enforcement responsibility. The tribe, with the EPA 
Region, shall develop a procedure by which the tribe will provide 
potential investigative leads to EPA and/or other appropriate Federal 
agencies, as agreed to by the parties, in an appropriate and timely 
manner. This procedure shall encompass all circumstances in which the 
tribe is incapable of exercising applicable enforcement requirements as 
provided in Sec. 49.7(a)(6). This agreement shall be incorporated into a 
Memorandum of Agreement with the EPA Region.



Sec. 49.9  EPA review of tribal Clean Air Act applications.

    (a) The EPA Regional Administrator shall process a request of an 
Indian tribe submitted under Sec. 49.7 in a timely manner. The EPA 
Regional Administrator shall promptly notify the Indian tribe of receipt 
of the application.
    (b) Within 30 days of receipt of an Indian tribe's initial, complete 
application, the EPA Regional Administrator shall notify all appropriate 
governmental entities.
    (1) For tribal applications addressing air resources within the 
exterior boundaries of the reservation, EPA's notification of other 
governmental entities shall specify the geographic boundaries of the 
reservation.
    (2) For tribal applications addressing non-reservation areas, EPA's 
notification of other governmental entities shall include the substance 
and bases of the tribe's jurisdictional assertions.
    (c) The governmental entities shall have 30 days to provide written 
comments to EPA's Regional Administrator regarding any dispute 
concerning the boundary of the reservation. Where a tribe has asserted 
jurisdiction over non-reservation areas, appropriate governmental 
entities may request a single 30-day extension to the general 30-day 
comment period.
    (d) In all cases, comments must be timely, limited to the scope of 
the tribe's jurisdictional assertion, and clearly explain the substance, 
bases, and extent of any objections. If a tribe's assertion is subject 
to a conflicting claim, the EPA Regional Administrator may request 
additional information from the tribe and may consult with the 
Department of the Interior.
    (e) The EPA Regional Administrator shall decide the jurisdictional 
scope of the tribe's program. If a conflicting claim cannot be promptly 
resolved, the EPA Regional Administrator may approve that portion of an 
application addressing all undisputed areas.
    (f) A determination by the EPA Regional Administrator concerning the 
boundaries of a reservation or tribal jurisdiction over non-reservation 
areas

[[Page 717]]

shall apply to all future Clean Air Act applications from that tribe or 
tribal consortium and no further notice to governmental entities, as 
described in paragraph (b) of this section, shall be provided, unless 
the application presents different jurisdictional issues or significant 
new factual or legal information relevant to jurisdiction to the EPA 
Regional Administrator.
    (g) If the EPA Regional Administrator determines that a tribe meets 
the requirements of Sec. 49.6 for purposes of a Clean Air Act provision, 
the Indian tribe is eligible to be treated in the same manner as a State 
with respect to that provision, to the extent that the provision is 
identified in Sec. 49.3. The eligibility will extend to all areas within 
the exterior boundaries of the tribe's reservation, as determined by the 
EPA Regional Administrator, and any other areas the EPA Regional 
Administrator has determined to be within the tribe's jurisdiction.
    (h) Consistent with the exceptions listed in Sec. 49.4, a tribal 
application containing a Clean Air Act program submittal will be 
reviewed by EPA in accordance with applicable statutory and regulatory 
criteria in a manner similar to the way EPA would review a similar State 
submittal.
    (i) The EPA Regional Administrator shall return an incomplete or 
disapproved application to the tribe with a summary of the deficiencies.



Sec. 49.10  EPA review of State Clean Air Act programs.

    A State Clean Air Act program submittal shall not be disapproved 
because of failure to address air resources within the exterior 
boundaries of an Indian Reservation or other areas within the 
jurisdiction of an Indian tribe.



Sec. 49.11  Actions under section 301(d)(4) authority.

    Notwithstanding any determination made on the basis of authorities 
granted the Administrator under any other provision of this section, the 
Administrator, pursuant to the discretionary authority explicitly 
granted to the Administrator under sections 301(a) and 301(d)(4):
    (a) Shall promulgate without unreasonable delay such Federal 
implementation plan provisions as are necessary or appropriate to 
protect air quality, consistent with the provisions of sections 304(a) 
and 301(d)(4), if a tribe does not submit a tribal implementation plan 
meeting the completeness criteria of 40 CFR part 51, appendix V, or does 
not receive EPA approval of a submitted tribal implementation plan.
    (b) May provide up to 95 percent of the cost of implementing 
programs for the prevention and control of air pollution or 
implementation of national primary and secondary ambient air quality 
standards. After two years from the date of each tribe's initial grant 
award, the maximum Federal share will be reduced to 90 percent, as long 
as the Regional Administrator determines that the tribe meets certain 
economic indicators that would provide an objective assessment of the 
tribe's ability to increase its share. The Regional Administrator may 
increase the maximum Federal share to 100 percent if the tribe can 
demonstrate in writing to the satisfaction of the Regional Administrator 
that fiscal circumstances within the tribe are constrained to such an 
extent that fulfilling the match would impose undue hardship.



Secs. 49.12-49.21  [Reserved]



Sec. 49.22  Federal implementation plan for Tri-Cities landfill, Salt River 
Pima-Maricopa Indian Community.

    (a) Applicability. This section applies to the owner or operator of 
the project located on the Reservation of the Salt River Pima Maricopa 
Indian Community (SRPMIC) in Arizona, including any new owner or 
operator in the event of a change in ownership of the project.
    (b) Definitions. The following definitions apply to this section. 
Except as specifically defined herein, terms used in this section retain 
the meaning accorded them under the Clean Air Act.
    Actual emissions means the actual rate of emissions of a pollutant 
from an emissions unit as determined in paragraphs (1)-(3) of this 
definition:
    (1) 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

[[Page 718]]

representative of normal source operation. EPA 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.
    (2) EPA may presume that the source-specific allowable emissions for 
the unit are equivalent to the actual emissions of the unit.
    (3) 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.
    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.
    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).
    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: (1) Begun, or 
caused to begin, a continuous program of actual on-site construction of 
the source, to be completed within a reasonable time; 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 actual construction of the 
source to be completed within a reasonable time.
    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.
    EPA means United States Environmental Protection Agency, Region 9.
    Fugitive emissions means those emissions which could not reasonably 
pass through a stack, chimney, vent, or other functionally equivalent 
opening.
    Lowest achievable emission rate means the more stringent rate of 
emissions based on the following:
    (1) The most stringent emissions limitation which is contained in 
any State, Tribal, or federal implementation plan for such class or 
category of stationary source, unless the owner or operator of the 
project demonstrates that such limitations are not achievable; or
    (2) 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 a 
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.
    Major stationary source means a 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. The fugitive 
emissions of a stationary source shall not be included in determining 
for any of the purposes of this project whether it is a major stationary 
source.
    Potential to emit means the maximum capacity of a stationary source 
to emit

[[Page 719]]

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.
    Project means the construction of electricity-generating engines 
owned and operated by the Salt River Project at the Tri-Cities landfill, 
which are fueled by collected landfill gas.
    Secondary emissions means emissions which would occur as a result of 
the construction or operation of a major stationary source, but do not 
come from the major stationary source 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 
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. 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.
    Stationary source means any building, structure, facility, or 
installation which emits or may emit any air pollutant subject to 
regulation under the Clean Air Act.
    (c) Requirement to submit an application. The owner or operator of 
the project shall submit an application for a permit to construct to EPA 
which contains all information necessary to perform any analysis or make 
any determination as required by this Federal Implementation Plan.
    (d) Source obligations. (1) The owner or operator of the project 
shall not begin actual construction on the project without obtaining a 
nonattainment New Source Review permit regulating emissions of air 
pollutants. The EPA Region 9 Regional Administrator has the authority to 
issue such a permit. Any permit issued by EPA shall ensure that the 
project meets the following requirements:
    (i) By the time the project is to commence operation, the owner or 
operator of the project must have obtained sufficient reductions in 
actual emissions from existing facilities within the same nonattainment 
area which satisfy the requirements of section 173 of the Clean Air Act, 
to offset the potential to emit of the project;
    (ii) The owner or operator of the project must comply with the 
lowest achievable emissions rate;
    (iii) The owner or operator of the project must demonstrate that all 
major stationary sources owned or operated by such person (or by any 
entity controlling, controlled by, or under common control with such 
person) located on the reservation of the SRPMIC are subject to emission 
limitations and are in compliance, or on a schedule for compliance, with 
all applicable emission limitations and standards under the Act; and
    (iv) The owner or operator of the project has provided an analysis 
of alternative sites, sizes, production processes, and environmental 
control techniques for the proposed source which demonstrates that 
benefits of the proposed source significantly outweigh the environmental 
and social costs imposed as a result of its location or construction.
    (2) If the owner or operator constructs or operates the project not 
in accordance with the application submitted pursuant to this section or 
with the terms of any approval to construct, or if the owner or operator 
subject to this section commences construction after January 24 , 2000 
without applying for and receiving approval under this section, then the 
owner or operator shall be subject to appropriate enforcement action.
    (3) Approval to construct shall become invalid if construction is 
not commenced within 18 months after receipt of such approval, if 
construction is discontinued for a period of 18 months or more, or if 
construction is not completed within a reasonable time. The 
Administrator may extend

[[Page 720]]

the 18-month period upon a satisfactory showing that an extension is 
justified.
    (4) Approval to construct shall not relieve any owner or operator of 
the responsibility to comply fully with applicable provisions of the 
Federal implementation plan and any other requirements under Tribal or 
Federal law.
    (e) Public participation. (1) When issuing a permit for the project, 
the EPA Region 9 Regional Administrator shall follow the procedures for 
decision making for PSD permits contained in 40 CFR part 124, including 
the requirements for public notice, consideration of and response to 
public comment, and the opportunity for public hearing.
    (2) Within 30 days after the EPA Region 9 Regional Administrator has 
issued a final permit decision, any person who filed comments on the 
draft permit or participated in the public hearing, if one has been 
held, may petition the Environmental Appeals Board to review any 
condition of the permit. Review of the permit decision will be governed 
by the regulations for review of PSD permits contained in 40 CFR part 
124.

[64 FR 65663, Nov. 23, 1999]



Secs. 49.23-49.50  [Reserved]



                      Subpart B--General Provisions



Secs. 49.51-49.100  [Reserved]



        Subpart C--General Federal Implementation Plan Provisions



Secs. 49.101-49.200  [Reserved]



          Subpart D--Implementation Plans for Tribes--Region I



Secs. 49.201-49.470  [Reserved]



          Subpart E--Implementation Plans for Tribes--Region II



Secs. 49.471-49.680  [Reserved]



         Subpart F--Implementation Plans for Tribes--Region III



Secs. 49.681-49.710  [Reserved]



          Subpart G--Implementation Plans for Tribes--Region IV



Secs. 49.711-49.920  [Reserved]



          Subpart H--Implementation Plans for Tribes--Region V



Secs. 49.921-49.1970  [Reserved]



          Subpart I--Implementation Plans for Tribes--Region VI



Secs. 49.1971-49.3920  [Reserved]



         Subpart J--Implementation Plans for Tribes--Region VII



Secs. 49.3921-49.4160  [Reserved]



         Subpart K--Implementation Plans for Tribes--Region VIII



Secs. 49.4161-49.5510  [Reserved]



          Subpart L--Implementation Plans for Tribes--Region IX



Secs. 49.5511-49.9860  [Reserved]

[[Page 721]]



          Subpart M--Implementation Plans for Tribes--Region X

    Source: 65 FR 51433, Aug. 23, 2000, unless otherwise noted.



Secs. 49.9861-49.10700  [Reserved]

  Implementation Plan for the Shoshone-Bannock Tribes of the Fort Hall 
                           Indian Reservation



Sec. 49.10701  Identification of plan.

    Sections 49.10701 through 49.10730 contain the implementation plan 
for the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation. 
This plan consists of a combination of Tribal rules and measures and 
federal regulations and measures which apply for the Shoshone-Bannock 
Tribes of the Fort Hall Indian Reservation.



Sec. 49.10702  Approval status.

    There are currently no EPA-approved Tribal rules or measures in the 
implementation plan for the Shoshone-Bannock Tribes of the Fort Hall 
Indian Reservation.



Sec. 49.10703  Legal authority. [Reserved]



Sec. 49.10704  Source surveillance. [Reserved]



Sec. 49.10705  Classification of regions for episode plans.

    The air quality control region which encompasses the Shoshone-
Bannock Tribes of the Fort Hall Indian Reservation is classified as 
follows for purposes of episode plans:

------------------------------------------------------------------------
                 Pollutant                         Classification
------------------------------------------------------------------------
Carbon monoxide...........................  III
Nitrogen dioxide..........................  III
Ozone.....................................  III
Particulate matter (PM-10)................  I
Sulfur dioxide............................  II
------------------------------------------------------------------------



Sec. 49.10706  Contents of implementation plan.

    The implementation plan for the Shoshone-Bannock Tribes of the Fort 
Hall Indian Reservation consists of the following rules, regulations, 
and measures:
    (a) Section 49.10711. Federal Implementation Plan for the Astaris-
Idaho LLC Facility (formerly owned by FMC Corporation) in the Fort Hall 
PM-10 Nonattainment Area.
    (b) 40 CFR 52.21. Prevention of Significant Deterioration Permits



Sec. 49.10707  EPA-approved tribal rules and plans. [Reserved]



Sec. 49.10708  Permits to construct.

    Permits to construct are required for new major stationary sources 
and major modifications to existing major stationary sources pursuant to 
40 CFR 52.21.



Sec. 49.10709  Permits to operate. [Reserved]



Sec. 49.10710  Federally-promulgated regulations and federal implementation 
plans.

    The following regulations are incorporated and made part of the 
implementation plan for the Shoshone-Bannock Tribes of the Fort Hall 
Indian Reservation:
    (a) Section 49.10711. Federal Implementation Plan for the Astaris-
Idaho LLC Facility (formerly owned by FMC Corporation) in the Fort Hall 
PM-10 Nonattainment Area.
    (b) 40 CFR 52.21. Prevention of Significant Deterioration Permits.



Sec. 49.10711  Federal Implementation Plan for the Astaris-Idaho LLC Facility 
(formerly owned by FMC Corporation) in the Fort Hall PM-10 Nonattainment Area.

    (a) Applicability. This section applies to the owner(s) or 
operator(s) of the Astaris-Idaho LLC's elemental phosphorus facility 
located on the Fort Hall Indian Reservation in Idaho, including any new 
owner(s) or operator(s) in the event of a change in ownership or 
operation of the Astaris-Idaho facility.
    (b) Definitions. The terms used in this section retain the meaning 
accorded them under the Clean Air Act, except as follows:
    Astaris-Idaho or Astaris-Idaho facility means all of the pollutant-
emitting activities that comprise the elemental phosphorus plant owned 
by or under the common control of Astaris-Idaho LLC in Township 6 south, 
Range 33 east, Sections 12, 13, and 14, and that lie within the exterior 
boundaries of the Fort Hall Indian Reservation, in Idaho, including, 
without limitation,

[[Page 722]]

all buildings, structures, facilities, installations, material handling 
areas, storage piles, roads, staging areas, parking lots, mechanical 
processes and related areas, and other processes and related areas. For 
purposes of this section, the term ``Astaris-Idaho'' or ``Astaris-Idaho 
facility'' shall not include pollutant emitting activities located on 
lands outside the exterior boundaries of the Fort Hall Indian 
Reservation.
    Bag leak detection guidance means Office of Air Quality Planning and 
Standards (OAQPS): Fabric Filter Bag Leak Detection Guidance, EPA 454/R-
98-015 (Sept. 1997).
    Begin actual construction means, in general, initiation of physical 
on-site construction activities on a source 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 the method of operating, this term refers to those on-site activities 
other than preparatory activities which mark the initiation of the 
change.
    Certified observer means a visual emissions observer who has been 
properly certified using the initial certification and periodic semi-
annual recertification procedures of 40 CFR part 60, appendix A, Method 
9.
    Construction means any physical change or change in the method of 
operation (including fabrication, erection, installation, demolition, or 
modification of a source) which would result in a change in actual 
emissions.
    Emergency means any situation arising from sudden and reasonably 
unforeseeable events beyond the control of the owner or operator of the 
Astaris-Idaho facility, including acts of God, which requires immediate 
corrective action to restore normal operation. An emergency shall not 
include events caused by improperly designed equipment, lack of 
preventative maintenance, careless or improper operation, or operator 
error.
    Emission limitation or emission standard means a requirement 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 operations or maintenance procedures to assure continuous 
emission reduction.
    EPA means United States Environmental Protection Agency, Region 10.
    Excess emissions means emissions of an air pollutant in excess of an 
emission limitation.
    Excursion means a departure from a parameter range approved under 
paragraphs (e)(3) or (g)(1) of this section, consistent with any 
averaging period specified for averaging the results of monitoring.
    Fugitive emissions means those emissions that do not actually pass 
through a stack, chimney, vent, or other functionally equivalent 
opening.
    Malfunction means any sudden and unavoidable breakdown of process or 
control equipment. A sudden breakdown which could have been avoided by 
better operation and maintenance is not a malfunction.
    Method 5 is the reference test method described in 40 CFR part 60, 
appendix A, conducted in accordance with the requirements of this 
section.
    Method 9 is the reference test method described in 40 CFR part 60, 
appendix A.
    Methods 201, 201A, and 202 are the reference test methods described 
in 40 CFR part 51, appendix M, conducted in accordance with the 
requirements of this section.
    Mini-flush means the process of flushing elemental phosphorus, which 
has solidified in the secondary condenser, to the elevated secondary 
condenser flare or to the ground flare, and thus into the atmosphere.
    Modification means any physical change in or a change in the method 
of operation of, an existing source which increases the amount of 
particulate matter emitted by that source. The following shall not, by 
themselves, be considered modifications:
    (1) Maintenance, repair, and replacement which the Regional 
Administrator determines to be routine for the particular source;
    (2) An increase in production rate of an existing source, if that 
increase can be accomplished without a physical

[[Page 723]]

change to the source or the Astaris-Idaho facility;
    (3) An increase in the hours of operation of an existing source, if 
that increase can be accomplished without a physical change to the 
source or the Astaris-Idaho facility;
    (4) Use of an alternative fuel or raw material, if the existing 
source is capable of accommodating that alternative without a physical 
change to the source or the Astaris-Idaho facility; or
    (5) The addition, replacement, or use of any system or device whose 
primary function is the reduction of an air pollutant, except when an 
emissions control system is removed or replaced by a system which the 
Regional Administrator determines to be less environmentally beneficial.
    Monitoring malfunction means any sudden, infrequent, not reasonably 
preventable failure of the monitoring to provide valid data. Monitoring 
failures that are caused in part by poor maintenance or careless 
operation are not monitoring malfunctions.
    O&M plan means an operation and maintenance plan developed by 
Astaris-Idaho and submitted to EPA in accordance with paragraph (e)(8) 
of this section.
    Opacity means the degree to which emissions reduce the transmission 
of light and obscure the view of an object in the background.
    Opacity action level means the level of opacity of emissions from a 
source requiring the owner or operator of the Astaris-Idaho facility to 
take prompt corrective action to minimize emissions, including without 
limitation those actions described in the approved operations and 
maintenance plan.
    Owner or operator means any person who owns, leases, operates, 
controls, or supervises the Astaris-Idaho facility or any portion 
thereof.
    Particulate matter means any airborne finely-divided solid or liquid 
material with an aerodynamic diameter smaller than 100 micrometers.
    PM-10 or PM-10 emissions means finely divided solid or liquid 
material, with an aerodynamic diameter less than or equal to a nominal 
ten micrometers emitted to the ambient air as measured by an applicable 
reference method such as Method 201, 201A, or 202, of 40 CFR Part 51, 
appendix M, or an equivalent or alternative method specifically approved 
by the Regional Administrator.
    Regional Administrator means the Regional Administrator, EPA Region 
10, or a duly designated representative of the Regional Administrator.
    Road means access and haul roads, driveways or established vehicle 
paths, permanent or temporary, which are graded, constructed, used, 
reconstructed, improved, or maintained for use in vehicle movement 
throughout the Astaris-Idaho facility.
    Shutdown means the cessation of operation of a source for any 
purpose.
    Slag Pit Area means the area of the Astaris-Idaho facility 
immediately bordering the south side of the furnace building extending 
out 100 yards.
    Source means any building, structure, facility, installation, 
material handling area, storage pile, road, staging area, parking lot, 
mechanical process or related area, or other process or related area 
which emits or may emit particulate matter.
    Startup means the setting in operation of a source for any purpose.
    Title V permit means an operating permit issued under 40 CFR part 70 
or 71.
    Tribes means the Shoshone-Bannock Tribes.
    Visible emissions means the emission of pollutants into the 
atmosphere, excluding uncombined condensed water vapor (steam), that is 
observable by the naked eye.
    Visual observation means the continuous observation of a source for 
the presence of visible emissions for a period of ten consecutive 
minutes conducted in accordance with section 5 of EPA Method 22, 40 CFR 
part 60, appendix A, by a person who meets the training guidelines 
described in section 1 of Method 22.
    (c) Emission limitations and work practice requirements.(1)(i) 
Except as otherwise provided in paragraphs (c)(1)(ii), (c)(1)(iii), and 
(c)(2) of this section, there shall be no visible emissions from any 
location at the Astaris-Idaho facility at any time, as determined by a 
visual observation.
    (ii) Emissions from the following equipment, activities, processes, 
or sources shall not exceed 20% opacity over a six minute average. 
Method 9, of

[[Page 724]]

40 CFR part 60, appendix A, is the reference test method for this 
requirement.
    (A) Brazing, welding, and welding equipment and oxygen-hydrogen 
cutting torches;
    (B) Plant upkeep, including routine housekeeping, preparation for 
and painting of structures;
    (C) Grinding, sandblasting, and cleaning operations that are not 
part of a routine operation or a process at the Astaris-Idaho facility;
    (D) Cleaning and sweeping of streets and paved surfaces;
    (E) Lawn and landscaping activities;
    (F) Repair and maintenance activities;
    (G) Landfill operations;
    (H) Laboratory vent stacks; and
    (I) Pond piping discharges.
    (iii) Except as otherwise provided in paragraph (c)(1)(ii) of this 
section, emissions from equipment, activities, processes, or sources not 
identified in Table 1 to this section shall not exceed 10% opacity over 
a six minute average provided that Astaris-Idaho has complied with the 
requirements of paragraph (c)(11) of this section and provided further 
that a more stringent opacity limit has not been established for the 
source in this section. Method 9, 40 CFR Part 60, appendix A, is the 
reference test method for this requirement.
    (2) For each source identified in Column II of Table 1 to this 
section, the owner or operator of the Astaris-Idaho facility shall 
comply with the emission limitations and work practice requirements for 
that source established in Column III of Table 1 to this section.
    (3) The opacity limits for the following fugitive emission sources, 
which are also identified in Column II of Table 1 to this section, apply 
to adding of material to, taking of material from, reforming, or 
otherwise disturbing the pile: main shale pile (Table 1 of this section, 
source 2), emergency/contingency raw ore shale pile (Table 1 of this 
section, source 3), stacker and reclaimer (Table 1 of this section, 
source 4), recycle material pile (Table 1 of this section, source 8b), 
nodule pile (Table 1 of this section, source 11), and screened shale 
fines pile (Table 1 of this section, source 14).
    (4)(i) Except as provided in paragraph (c)(4)(ii) of this section, 
beginning November 1, 2000, the following activities shall be 
prohibited:
    (A) The discharge of molten slag from furnaces or slag runners onto 
the ground, pit floors (whether dressed with crushed slag or not), or 
other non-mobile permanent surface.
    (B) The digging of solid slag in the slag pit area or the loading of 
slag into transport trucks in the slag pit area.
    (ii) The prohibition set forth in paragraph (c)(4)(i) of this 
section shall not apply to the lining of slag pots and the handling 
(including but not limited to loading, crushing, or digging) of cold 
slag for purposes of the lining of slag pots.
    (5)(i) Beginning January 1, 2001, no furnace gas shall be burned in 
the existing elevated secondary condenser flare or the existing ground 
flare (Table 1 of this section, source 26a).
    (ii) Until December 31, 2000, the owner or operator of the Astaris-
Idaho facility shall take the following measures to reduce PM-10 
emissions from mini-flushes and to ensure there is no bias toward 
conducting mini-flushes during night-time hours.
    (A) Mini-flushes shall be limited to no more than 50 minutes per day 
(based on a monthly average) beginning January 1, 1999. Failure to meet 
this limit for any given calendar month will be construed as a separate 
violation for each day during that month that mini-flushes lasted more 
than 50 minutes. The monthly average for any calendar month shall be 
calculated by summing the duration (in actual minutes) of each mini-
flush during that month and dividing by the number of days in that 
month.
    (B)(1) No mini-flush shall be conducted at any time unless one of 
the following operating parameters is satisfied:
    (i) The flow rate of recirculated phossy water is equal to or less 
than 1800 gallons per minute; or
    (ii) The secondary condenser outlet temperature is equal to or 
greater than 36 degrees Centigrade.
    (2) The prohibition set forth in paragraph (c)(5)(ii)(B)(1) of this 
section shall not apply during periods of malfunction or emergency, 
provided the

[[Page 725]]

owner or operator of the Astaris-Idaho facility complies with the 
requirements of paragraph (c)(9) of this section.
    (6) At all times, including periods of startup, shutdown, 
malfunction, or emergency, the owner or operator of the Astaris-Idaho 
facility shall, to the extent practicable, maintain and operate each 
source of PM-10 at the Astaris-Idaho facility, including without 
limitation those sources identified in Column II of Table 1 to this 
section and associated air pollution control equipment, in a manner 
consistent with good air pollution control practices for minimizing 
emissions. Determination of whether acceptable operating and maintenance 
procedures are being used will be based on information available to the 
Regional Administrator which may include, but is not limited to, 
monitoring results, opacity observations, review of operating and 
maintenance procedures, and inspection of the source.
    (7) Maintaining operation of a source within approved parameter 
ranges, promptly taking corrective action, and otherwise following the 
work practice, monitoring, record keeping, and reporting requirements of 
this section do not relieve the owner or operator of the Astaris-Idaho 
facility from the obligation to comply with applicable emission 
limitations and work practice requirements at all times.
    (8) An affirmative defense to a penalty action brought for emissions 
in excess of an emission limitation shall be available if the excess 
emissions were due to startup or shutdown and all of the following 
conditions are met:
    (i) The owner or operator of the Astaris-Idaho facility notifies EPA 
and the Tribes in writing of any startup or shutdown that is expected to 
cause excess emissions. The notification shall be given as soon as 
possible, but no later than 48 hours prior to the start of the startup 
or shutdown, unless the owner or operator demonstrates to EPA's 
satisfaction that a shorter advanced notice was necessary. The notice 
shall identify the expected date, time, and duration of the excess 
emissions event, the source involved in the excess emissions event, and 
the type of excess emissions event.
    (ii) The periods of excess emissions that occurred during startup or 
shutdown were short and infrequent and could not have been prevented 
through careful planning and design.
    (iii) The excess emissions were not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance.
    (iv) If the excess emissions were caused by a bypass (an intentional 
diversion of control equipment), then the bypass was unavoidable to 
prevent loss of life, personal injury, or severe property damage.
    (v) At all times, the facility was operated in a manner consistent 
with good practice for minimizing emissions.
    (vi) The frequency and duration of operation in startup or shutdown 
mode was minimized to the maximum extent practicable.
    (vii) All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality.
    (viii) All emission monitoring systems were kept in operation if at 
all possible.
    (ix) The owner or operator's actions during the period of excess 
emissions were documented by properly signed, contemporaneous operating 
logs, or other relevant evidence.
    (x) The owner or operator of the Astaris-Idaho facility submitted 
notice of the startup or shutdown to EPA and the Tribes within 48 hours 
of the time when emission limitations were exceeded due to startup or 
shutdown. This notice fulfills the requirement of paragraph (g)(5) of 
this section. This notice must contain a description of the startup or 
shutdown, any steps taken to mitigate emissions, and corrective actions 
taken.
    (xi) No exceedance of the 24-hour PM-10 National Ambient Air Quality 
Standard, 40 CFR 50.6(a) was recorded on any monitor located within the 
Fort Hall PM-10 nonattainment area that regularly reports information to 
the Aerometric Information Retrieval System-Air Quality Subsystem, as 
defined under 40 CFR 58.1(p), on any day for which the defense of 
startup or shutdown is asserted.
    (xii) In any enforcement proceeding, the owner or operator of the 
Astaris-

[[Page 726]]

Idaho facility has the burden of proof on all requirements of this 
paragraph (c)(8).
    (9) An affirmative defense to a penalty action brought for emissions 
in excess of an emission limitation shall be available if the excess 
emissions were due to an emergency or malfunction and all of the 
following conditions are met:
    (i) The excess emissions were caused by a sudden, unavoidable 
breakdown of technology, beyond the control of the owner or operator of 
the Astaris-Idaho facility.
    (ii) The excess emissions;
    (A) Did not stem from any activity or event that could have been 
foreseen and avoided or planned for; and
    (B) Could not have been avoided by better operation and maintenance 
practices.
    (iii) To the maximum extent practicable the air pollution control 
equipment or processes were maintained and operated in a manner 
consistent with good practice for minimizing emissions.
    (iv) Repairs were made in an expeditious fashion when the operator 
knew or should have known that applicable emission limitations were 
being exceeded. Off-shift labor and overtime must have been utilized, to 
the extent practicable, to ensure that such repairs were made as 
expeditiously as practicable.
    (v) The amount and duration of the excess emissions (including any 
bypass) were minimized to the maximum extent practicable during periods 
of such emissions.
    (vi) All possible steps were taken to minimize the impact of the 
excess emissions on ambient air quality.
    (vii) All emission monitoring systems were kept in operation if at 
all possible.
    (viii) The owner or operator's actions in response to the excess 
emissions were documented by properly signed, contemporaneous operating 
logs, or other relevant evidence.
    (ix) The excess emissions were not part of a recurring pattern 
indicative of inadequate design, operation, or maintenance.
    (x) The owner or operator of the Astaris-Idaho facility submitted 
notice of the emergency or malfunction to EPA and the Tribes within 48 
hours of the time when emission limitations were exceeded due to the 
emergency or malfunction. This notice fulfills the requirement of 
paragraph (g)(5) of this section. This notice must contain a description 
of the emergency or malfunction, any steps taken to mitigate emissions, 
and corrective actions taken.
    (xi) No exceedance of the 24-hour PM-10 National Ambient Air Quality 
Standard, 40 CFR 50.6(a), was recorded on any monitor located within the 
Fort Hall PM-10 nonattainment area that regularly reports information to 
the Aerometric Information Retrieval System-Air Quality Subsystem, as 
defined under 40 CFR 58.1(p), on any day for which the defense of 
emergency or malfunction is asserted.
    (xii) In any enforcement proceeding, the owner or operator of the 
Astaris-Idaho facility has the burden of proof on all requirements of 
this paragraph (c)(9).
    (10) For each source identified in Column II of Table 2 to this 
section, the owner or operator of the Astaris-Idaho facility shall take 
appropriate actions to reduce visible emissions from the source if 
opacity exceeds the opacity action level for that source identified in 
Column III of Table 2 of this section. Such actions shall be commenced 
as soon as possible but not to exceed 24 hours after an exceedance of 
the opacity action level is first identified and shall be completed as 
soon as possible. Such actions shall include, but not be limited to, 
those actions identified in the O&M plan for the source. Exceedance of 
an opacity action level does not constitute a violation of this section, 
but failure to take appropriate corrective action as identified in this 
paragraph (c)(10) does constitute a violation of this section.
    (11) The owner or operator of the Astaris-Idaho facility shall 
notify EPA prior to the construction of a new source of PM-10 at the 
Astaris-Idaho facility or the modification of an existing source at the 
Astaris-Idaho facility in a manner that increases emissions of PM-10 as 
follows:
    (i) Such notification shall be submitted to EPA at least 90 days 
prior to

[[Page 727]]

commencement of the construction or modification.
    (ii) Such notification shall include the following information:
    (A) A description of the source, including location of the process 
and associated control equipment, and any modification thereto;
    (B) An estimate of potential PM-10 emissions from the source on both 
a 24-hour and annual basis, without consideration of any proposed air 
pollution control equipment;
    (C) The expected daily hours of operation of the source, including 
any seasonal variation, and an estimate of actual PM-10 emissions from 
the source on both a 24-hour and annual basis, considering the effect of 
any proposed air pollution control equipment; and
    (D) A description of any PM-10 control technology to be implemented 
at the source along with an analysis of alternative control technologies 
considered but rejected.
    (iii) Any source identified in this section shall continue to be 
subject to the requirements of this section notwithstanding the 
modification of the source.
    (iv) The requirements of this paragraph (c)(11) are in addition to 
any other requirements to obtain a permit under the Clean Air Act.
    (v) This paragraph (c)(11) shall cease to apply if either of the 
following events occur:
    (A) EPA promulgates a minor new source review program for PM-10 that 
applies to the Astaris-Idaho facility; or
    (B) The Tribes promulgate a minor new source review program for PM-
10 that applies to the Astaris-Idaho facility and EPA approves the 
Tribes' program under of this part.
    (vi) If, after receipt of the notice referred to in this paragraph 
(c)(11), EPA notifies Astaris-Idaho in writing that a 90 day delay in 
the commencement of construction or modification is not required, 
Astaris-Idaho may proceed with the commencement of the construction or 
modification as described in the notice, subject to the other 
requirements of this section.
    (d) Reference test methods. (1) For each source identified in Column 
II of Table 1 to this section, the reference test method for the 
corresponding emission limitation in Column III of Table 1 to this 
section for that source is identified in Column IV of Table 1 to this 
section. For each source identified in Column II of Table 2 to this 
section, the reference test method for the corresponding opacity action 
level in Column III of Table 2 to this section for that source is 
identified in Column IV of Table 2 to this section.
    (2) When Method 201/201A or Methods 201/201A and 202 of 40 CFR Part 
60, appendix A, are specified as the reference test methods, the testing 
shall be conducted in accordance with the identified test methods and 
the following additional requirements:
    (i) Each test shall consist of three runs, with each run a minimum 
of one hour.
    (ii) Method 202 shall be run concurrently with Method 201 or Method 
201A. Unless Method 202 is specifically designated as part of the 
reference test method, Method 202 shall be performed on each source for 
informational purposes only and the results from the Method 202 test 
shall not be included in determining compliance with the mass emission 
limit for the source.
    (iii) The source shall be operated at a capacity of at least 90% of 
maximum during all tests unless the Regional Administrator determines in 
writing that other operating conditions are representative of normal 
operations.
    (iv) Only regular operating staff may adjust the processes or 
emission control device parameters during a performance test or within 
two hours prior to the tests. Any operating adjustments made during a 
performance test, which are a result of consultation during the tests 
with source testing personnel, equipment vendors, or other consultants 
may render the source test invalid.
    (v) For all reference tests, the sampling site and minimum number of 
sampling points shall be selected according to EPA Method 1 (40 CFR part 
60, appendix A).
    (vi) EPA Methods 2, 2C, 2D, 3, 3A, and 4 (40 CFR part 60, appendix 
A) shall be used, as appropriate, for determining mass emission rates.
    (vii) The mass emission rate of PM-10 shall be determined as 
follows:

[[Page 728]]

    (A)(1) Where Method 201/201A is identified as the reference test 
method, the mass emission rate of PM-10 shall be determined by taking 
the results of the Method 201/201A test and then multiplying by the 
average hourly volumetric flow rate for the run.
    (2) Where Methods 201/201A and 202 are identified as the reference 
test methods, the mass emission rate of PM-10 shall be determined by 
first adding the PM-10 concentrations from Methods 201/201A and 202, and 
then multiplying by the average hourly volumetric flow rate for the run.
    (B) The average of the three required runs shall be compared to the 
emission standard for purposes of determining compliance.
    (viii) Two of the three runs from a source test of each Medusa-
Andersen stack on the furnace building (Table 1 of this section, sources 
18d, 18e, 18f, and 18g) shall include at least 20 minutes of slag 
tapping and a third run shall include at least 20 minutes of metal 
tapping.
    (ix) At least one of the three runs from a source test of the excess 
CO burner (Table 1 of this section, source 26b) shall be conducted 
during either a mini-flush or hot-flush that lasts for at least 30 
minutes.
    (3) Method 5 shall be used in place of Method 201 or 201A for the 
calciner scrubbers (Table 1 of this section, source 9a) and any other 
sources with entrained water drops. In such case, all the particulate 
matter measured by Method 5 must be counted as PM-10, and the testing 
shall be conducted in accordance with paragraph (d)(2) of this section.
    (4) Method 5 may be used as an alternative to Method 201 or 201A for 
a particular point source, provided that all of the particulate measured 
by Method 5 is counted as PM-10 and the testing is conducted in 
accordance with paragraph (d)(2) of this section.
    (5)(i) An alternative reference test method or a deviation from a 
reference test method identified in this section may be approved as 
follows:
    (A) The owner or operator of the Astaris-Idaho facility must submit 
a written request to the Regional Administrator at least 60 days before 
the performance test is scheduled to begin which includes the reasons 
why the alternative or deviation is needed and the rationale and data to 
demonstrate that the alternative test method or deviation from the 
reference test method:
    (1) Provides equal or improved accuracy and precision as compared to 
the specified reference test method; and
    (2) Does not decrease the stringency of the standard as compared to 
the specified reference test method.
    (B) If requested by EPA, the demonstration referred to in paragraph 
(d)(5)(i)(A) of this section must use Method 301 in 40 CFR part 63, 
appendix A to validate the alternative test method or deviation.
    (C) The Regional Administrator must approve the request in writing.
    (ii) Until the Regional Administrator has given written approval to 
use an alternative test method or to deviate from the reference test 
method, the owner or operator of the Astaris-Idaho facility is required 
to use the reference test method when conducting a performance test 
pursuant to paragraph (e)(1) of this section.
    (6) For the purpose of submitting compliance certifications or 
establishing whether or not a person has violated or is in violation of 
any requirement of this section, nothing in this section shall preclude 
the use, including the exclusive use, of any credible evidence or 
information relevant to whether a source would have been in compliance 
with applicable requirements if the appropriate performance or reference 
test or procedure had been performed.
    (e) Monitoring and additional work practice requirements. (1) The 
owner or operator of the Astaris-Idaho facility shall conduct a 
performance test to measure PM-10 emissions as follows:
    (i) The owner or operator of the Astaris-Idaho facility shall 
conduct a performance test to measure PM-10 emissions from each of the 
following sources on an annual basis using the specified reference test 
methods: east shale baghouse (Table 1 of this section, source 5a), 
middle shale baghouse (Table 1 of this section, source 6a), west shale 
baghouse (Table 1 of this section, source 7a), calciner cooler vents 
(Table 1 of this section, source 10), north nodule discharge baghouse

[[Page 729]]

(Table 1 of this section, source 12a), south nodule discharge baghouse 
(Table 1 of this section, source 12b), proportioning building-east 
nodule baghouse (Table 1 of this section, source 15a), proportioning 
building-west nodule baghouse (Table 1 of this section, source 15b), 
nodule stockpile baghouse (Table 1 of this section, source 16a), dust 
silo baghouse (Table 1 of this section, source 17a), furnace building-
east baghouse (Table 1 of this section, source 18a), furnace building-
west baghouse (Table 1 of this section, source 18b), furnace 1, 
2, 3, and 4--Medusa-Andersen scrubbers (Table 
1 of this section, sources 18d, 18e, 18f and 18g), coke handling 
baghouse (Table 1 of this section, source 20a), and phos dock-Andersen 
scrubber (Table 1 of this section, source 21a).
    (A) The first annual test for each source shall be completed within 
16 months of August 23, 2000. Subsequent annual tests shall be completed 
within 12 months of the most recent previous test.
    (B) If, after conducting annual source tests for a particular source 
for two consecutive years, the emissions from that source are less than 
80% of the applicable emission limit, then the frequency of source 
testing for that source may be reduced to every other year. The 
frequency of source testing shall revert to annually if the emissions 
from any source test on the source are greater than or equal to 80% of 
the applicable emission limit.
    (ii) The owner or operator of the Astaris-Idaho facility shall 
conduct a performance test to measure PM-10 emissions from the calciner 
scrubbers (Table 1 of this section, source 9a) and the excess CO burner 
(Table 1 of this section, source 26b) on a semi-annual basis using the 
specified reference test methods.
    (A) The first semi-annual performance test for each source shall be 
conducted within 90 days after the date on which the PM-10 emission 
limitations become applicable to the source. Subsequent semi-annual 
tests shall be completed within 6 months of the most recent previous 
test.
    (B) If, after conducting semi-annual source tests for the calciners 
or the excess CO burner for two consecutive years, the emissions from 
that source during each of the four previous consecutive semi-annual 
tests are less than 80% of the applicable emission limit, then the 
frequency of source testing for the source may be reduced to annual 
testing. The frequency of source testing shall revert to semi-annually 
if the emissions from any source test on the source are greater than or 
equal to 80% of the applicable emission limit.
    (iii) The owner or operator of the Astaris-Idaho facility shall 
conduct a performance test to determine the control efficiency of the 
calciner scrubbers (Table 1 of this section, source 9a) and the excess 
CO burner (Table 1 of this section, source 26b) using the specified 
reference test methods as follows:
    (A) A performance test for the calciner scrubbers shall be conducted 
within 90 days after the date on which the PM-10 emission limitations 
become applicable to the source.
    (B) The first performance test for the excess CO burner shall be 
conducted within 90 days after the date on which the PM-10 emission 
limitations become applicable to the source. Subsequent semi-annual 
tests shall be completed within 6 months of the most recent previous 
test.
    (C) If, after conducting semi-annual source tests for the excess CO 
burner for two consecutive years, the emissions from that source during 
each of the four previous consecutive semi-annual tests are less than 
80% of the mass emission limit, then the frequency of source testing for 
the control efficiency requirement for the excess CO burner may be 
reduced to annual testing. The frequency of source testing shall revert 
to semi-annually if the emissions from any source test on the source are 
greater than or equal to 80% of the mass emission limit.
    (iv) If a source test indicates an exceedence of the emission limit 
applicable to the source, the owner or operator of the Astaris-Idaho 
facility shall conduct a performance test of that source within 90 days 
of the source test showing the exceedence. The schedule for conducting 
future source tests shall not be affected by this requirement.

[[Page 730]]

    (v) The time period for conducting any source test may be extended 
by a period of up to 90 days provided that:
    (A) The owner or operator of the Astaris-Idaho facility submits a 
written request to the Regional Administrator at least 30 days prior to 
the expiration of the time period for conducting the test which 
demonstrates the need for the extension; and
    (B) The Regional Administrator approves the request in writing.
    (vi) The owner or operator of the Astaris-Idaho facility shall 
provide the Regional Administrator a proposed test plan at least 30 days 
in advance of each scheduled source test. If the proposed test plan is 
unchanged for the next scheduled source test on the source, the owner or 
operator of the Astaris-Idaho facility shall not be required to resubmit 
a source test plan. Astaris-Idaho shall submit a new source test plan to 
EPA in accordance with this paragraph (e)(1) if the proposed test plan 
will be different from the immediately preceding source test plan that 
had been submitted to EPA.
    (vii) The owner or operator of the Astaris-Idaho facility shall 
provide the Regional Administrator at least 30 days prior written notice 
of any performance test required under this section to afford the 
Regional Administrator the opportunity to have an observer present. If 
after 30 days notice for an initially scheduled performance test, there 
is a delay (due to operational problems, etc.) in conducting the 
scheduled performance test, the owner or operator of the Astaris-Idaho 
facility shall notify the Regional Administrator as soon as possible of 
any delay in the original test date, either by providing at least 7 days 
prior notice of the rescheduled date of the performance test or by 
arranging a rescheduled date with the Regional Administrator by mutual 
agreement.
    (viii)(A) The owner or operator of the Astaris-Idaho facility shall 
provide, or cause to be provided, performance testing facilities as 
follows:
    (1) Sampling ports adequate for test methods applicable to the 
source. This includes:
    (i) Constructing any new or modified air pollution control system 
such that volumetric flow rates and pollutant emission rates can be 
accurately determined by the applicable test methods and procedures; and
    (ii) Except with respect to the calciner scrubber stacks (Table 1 of 
this section, source 9a), providing a stack or duct free of cyclonic 
flow during performance tests, as demonstrated by applicable test 
methods and procedures.
    (2) Safe sampling platforms.
    (3) Safe access to sampling platforms.
    (4) Utilities for sampling and testing equipment.
    (B) A modification to these requirements can be approved with 
respect a particular source provided that:
    (1) The owner or operator of the Astaris-Idaho facility submits a 
written request to the Regional Administrator which demonstrates the 
need for the modification; and
    (2) The Regional Administrator approves the request in writing.
    (ix) During each test run and for at least two hours prior to the 
test and two hours after the test is completed, the owner or operator of 
the Astaris-Idaho facility shall monitor and record the parameters 
specified in paragraphs (e)(2), (e)(3), (e)(4), (e)(5), and (e)(6) of 
this section, as appropriate, for the source being tested, and shall 
report the results to EPA as part of the performance test report 
referred to in paragraph (g)(3)(i)(G) of this section.
    (x) The owner or operator of the Astaris-Idaho facility shall 
conduct a 12 minute visible emission observation using Method 9 of 40 
CFR Part 60, appendix A, at least twice during the performance test at 
an interval of no less than one hour apart, and shall report the results 
of this observation to EPA as part of the performance test report 
referred to in paragraph (g)(3)(i)(G) of this section.
    (xi) Concurrently with the performance testing, the owner or 
operator of the Astaris-Idaho facility shall measure the flow rate 
(throughput to the control device) using Method 2 of 40 CFR Part 60, 
appendix A, for the calciner scrubbers (Table 1 of this section, source 
9a) and the phos dock Andersen scrubber (Table 1 of this section, source 
21a) and shall report the results to EPA as part of the performance test

[[Page 731]]

report referred to in paragraph (g)(3)(i)(G) of this section.
    (2) The owner or operator of the Astaris-Idaho facility shall 
install, calibrate, maintain, and operate in accordance with the 
manufacturer's specifications a device to continuously measure and 
continuously record the pressure drop across the baghouse for each of 
the following sources identified in Column II of Table I: east shale 
baghouse (Table 1 of this section, source 5a), middle shale baghouse 
(Table 1 of this section, source 6a), west shale baghouse (Table 1 of 
this section, source 7a), north nodule discharge baghouse (Table 1 of 
this section, source 12a), north reclaim baghouse (Table 1 of this 
section, source 13), south nodule discharge baghouse (Table 1 of this 
section, source 12b), proportioning building-east nodule baghouse (Table 
1 of this section, source 15a), proportioning building-west nodule 
baghouse (Table 1 of this section, source 15b), nodule stockpile 
baghouse (Table 1 of this section, source 16a), dust silo baghouse 
(Table 1 of this section, source 17a), furnace building-east baghouse 
(Table 1 of this section, source 18a), furnace building-west baghouse 
(Table 1 of this section, source 18b), and coke handling baghouse (Table 
1 of this section, source 20a).
    (i) The devices shall be installed and fully operational no later 
than 210 days after August 23, 2000.
    (ii) Upon EPA approval of the acceptable range of baghouse pressure 
drop for each source, as provided in paragraph (g)(1) of this section, 
the owner or operator of the Astaris-Idaho facility shall maintain and 
operate the source to stay within the approved range. Until EPA approval 
of the acceptable range of baghouse pressure drop for each source, the 
owner or operator of the Astaris-Idaho facility shall maintain and 
operate the source to stay within the proposed range for that source, as 
provided in paragraph (g)(1) of this section.
    (iii) If an excursion from an approved range occurs, the owner or 
operator of the Astaris-Idaho facility shall immediately upon discovery, 
but no later than within three hours of discovery, initiate corrective 
action to bring source operation back within the approved range.
    (iv) The owner or operator of the Astaris-Idaho facility shall 
complete the corrective action as expeditiously as possible.
    (3) The owner or operator of the Astaris-Idaho facility shall 
install, calibrate, maintain, and operate in accordance with the 
manufacture's specifications and the bag leak detection guidance a 
triboelectric monitor to continuously monitor and record the readout of 
the instrument response for each of the following sources identified in 
Column II of Table 1 to this section: east shale baghouse (Table 1 of 
this section, source 5a), middle shale baghouse (Table 1 of this 
section, source 6a), west shale baghouse (Table 1 of this section, 
source 7a), north nodule discharge baghouse (Table 1 of this section, 
source 12a), south nodule discharge baghouse (Table 1 of this section, 
source 12b), north reclaim baghouse (Table 1 of this section, source 
13), proportioning building-east nodule baghouse (Table 1 of this 
section, source 15a), proportioning building-west nodule baghouse (Table 
1 of this section, source 15b), nodule stockpile baghouse (Table 1 of 
this section, source 16a), dust silo baghouse (Table 1 of this section, 
source 17a), furnace building-east baghouse (Table 1 of this section, 
source 18a), furnace building-west baghouse (Table 1 of this section, 
source 18b), and coke handling baghouse (Table 1 of this section, source 
20a).
    (i) The triboelectric monitors shall be installed and fully 
operational no later than 210 days after August 23, 2000.
    (ii) The owner or operator of the Astaris-Idaho facility shall 
maintain and operate the source to stay within the approved range. For 
the triboelectric monitors, the ``approved range'' shall be defined as 
operating the source so that an ``alarm,'' as defined in and as 
determined in accordance with the bag leak detection guidance, does not 
occur.
    (iii) If an excursion from an approved range occurs, the owner or 
operator of the Astaris-Idaho facility shall immediately upon discovery, 
but no later than within three hours of discovery,

[[Page 732]]

initiate corrective action to bring source operation back within the 
approved range.
    (iv) The owner or operator of the Astaris-Idaho facility shall 
complete the corrective action as expeditiously as possible.
    (4) The owner or operator of the Astaris-Idaho facility shall 
install, calibrate, maintain, and operate in accordance with the 
manufacturer's specifications, a device to continuously measure and 
continuously record the pressure drop across the scrubber and the 
scrubber liquor flowrate for each of the calciner scrubbers (Table 1 of 
this section, source 9a).
    (i) The devices for the calciner scrubbers (Table 1 of this section, 
source 9a) shall be installed and fully operational on or before 
December 1, 2000.
    (ii) Upon EPA approval of the acceptable range of pressure drop, 
scrubber liquor flow rate, and scrubber liquor pH for the calciner 
scrubbers, as provided in paragraph (g)(1) of this section, the owner or 
operator of the Astaris-Idaho facility shall maintain and operate the 
source to stay within the approved range. Until EPA approval of the 
acceptable ranges for each source, the owner or operator of the Astaris-
Idaho facility shall maintain and operate the calciner scrubbers to stay 
within the proposed range for that source, as provided in paragraph 
(g)(1) of this section.
    (iii) If an excursion from an approved range occurs, Astaris-Idaho 
shall immediately upon discovery, but no later than within three hours 
of discovery, initiate corrective action to bring calciner scrubber 
operation back within the approved range.
    (iv) The owner or operator of the Astaris-Idaho facility shall 
complete the corrective action as expeditiously as possible.
    (5) The owner or operator of the Astaris-Idaho facility shall 
install, calibrate, maintain, and operate in accordance with the 
manufacturer's specifications, a device to continuously measure and 
continuously record the pressure drop across the scrubber for each of 
the following sources identified in Column II of Table 1 to this 
section: furnaces 1, 2, 3 and 4--
Medusa-Andersen scrubbers (Table 1 of this section, sources 18d, 18e, 
18f and 18g), phos dock Andersen scrubber (Table 1 of this section, 
source 21a), and excess CO burner--Andersen scrubber (Table 1 of this 
section, source 26b).
    (i) The device for furnaces 1, 2, 3 and 
4--Medusa-Andersen scrubbers (Table 1 of this section, sources 
18d, 18e, 18f and 18g) and the phos dock Andersen scrubber (Table 1 of 
this section, source 21a) shall be installed and fully operational no 
later than 210 days after August 23, 2000. The device for the excess CO 
burner (Table 1 of this section, source 26b) shall be installed and 
fully operational no later than January 1, 2001.
    (ii) Upon EPA approval of the acceptable range of scrubber pressure 
drop for each source, as provided in paragraph (g)(1) of this section, 
the owner or operator of the Astaris-Idaho facility shall maintain and 
operate the source to stay within the approved range. Until EPA approval 
of the acceptable ranges of scrubber pressure drop for each source, the 
owner or operator of the Astaris-Idaho facility shall maintain and 
operate the source to stay within the proposed range for that source, as 
provided in paragraph (g)(1) of this section.
    (iii) If an excursion from an approved range occurs, the owner or 
operator of the Astaris-Idaho facility shall immediately upon discovery, 
but no later than within three hours of discovery, initiate corrective 
action to bring source operation back within the approved range.
    (iv) The owner or operator of the Astaris-Idaho facility shall 
complete the corrective action as expeditiously as possible.
    (6) The owner or operator of the Astaris-Idaho facility shall 
develop and implement a written plan for monitoring the scrubber water 
quality (through a parameter(s) such as total dissolved solids, total 
suspended solids, conductivity, specific gravity, etc) on a daily basis 
for the following sources: calciner scrubbers (Table 1 of this section, 
source 9a) and furnace 1, 2, 3 and 
4--Medusa-Andersen scrubbers (Table 1 of this section, sources 
18d, 18e, 18f and 18g).
    (i) The plan for furnaces 1, 2, 3 and 
4--Medusa-Andersen scrubbers

[[Page 733]]

(Table 1 of this section, sources 18d, 18e, 18f and 18g) shall be 
submitted to the Regional Administrator within 180 days after September 
22, 2000. The plan for the calciner scrubbers (Table 1 of this section, 
source 9a) shall submitted to the Regional Administrator no later than 
December 1, 2000.
    (ii) Upon EPA approval of the acceptable parameter range for water 
quality for each source, as provided in paragraph (g)(1) of this 
section, the owner or operator of the Astaris-Idaho facility shall 
maintain and operate the source to stay within the approved range. Until 
EPA approval of the acceptable range of water quality for each source, 
the owner or operator of the Astaris-Idaho facility shall maintain and 
operate the source to stay within the proposed range for that source, as 
provided in paragraph (g)(1) of this section.
    (iii) If an excursion from an approved range occurs, the owner or 
operator of the Astaris-Idaho facility shall immediately upon discovery, 
but no later than within three hours of discovery, initiate corrective 
action to bring source operation back within the approved range.
    (iv) The owner or operator of the Astaris-Idaho facility shall 
complete the corrective action as expeditiously as possible.
    (7) For each of the pressure relief vents on the furnaces (Table 1 
of this section, source 24), Astaris-Idaho shall install, calibrate, 
maintain, and operate in accordance with the manufacturer's 
specifications, devices to continuously measure and continuously record 
the temperature and pressure of gases in the relief vent downstream of 
the pressure relief valve and the water level of the pressure relief 
valve.
    (i) The devices shall be installed and fully operational no later 
than 90 days after August 23, 2000.
    (ii) A ``pressure release'' is defined as an excursion of the 
temperature, pressure, or water level outside of the parameters approved 
in accordance with paragraph (g)(1) of this section. Until EPA approval 
of the acceptable range of parameters for the pressure release vents, a 
``pressure release'' is defined as an excursion of the temperature, 
pressure, or water level outside of the parameters proposed by the owner 
or operator of the Astaris-Idaho facility for the pressure relief vents, 
as provided in paragraph (g)(1) of this section.
    (iii) The release point on each pressure relief vent shall be 
maintained at no less than 18 inches of water.
    (iv) When a pressure release through a pressure relief vent is 
detected, the owner or operator of the Astaris-Idaho facility shall, 
within 30 minutes of the beginning of the pressure release, inspect the 
pressure relief valve to ensure that it has properly sealed and verify 
that at least 18 inches of water seal pressure is maintained.
    (8) The owner or operator of the Astaris-Idaho facility shall 
develop and implement a written O&M plan covering all sources of PM-10 
at the Astaris-Idaho facility, including without limitation, each source 
identified in Column II of Table 1 of this section and uncaptured 
fugitive and general fugitive emissions of PM-10 from each source.
    (i) The purpose of the O&M plan is to ensure each source at the 
Astaris-Idaho facility will be operated and maintained consistent with 
good air pollution control practices and procedures for maximizing 
control efficiency and minimizing emissions at all times, including 
periods of startup, shutdown, emergency, and malfunction, and to 
establish procedures for assuring continuous compliance with the 
emission limitations, work practice requirements, and other requirements 
of this section.
    (ii) The O&M plan shall be submitted to the Regional Administrator 
within 60 days of September 22, 2000 and shall cover all sources and 
requirements for which compliance is required 90 days after August 23, 
2000.
    (A) A revision to the O&M plan covering each source or requirement 
with a compliance date of more than 60 days after September 22, 2000 
shall be submitted at least 60 days before the source is required to 
comply with the requirement.
    (B) The owner or operator of the Astaris-Idaho facility shall review 
and, as appropriate, update the O&M plan at least annually.

[[Page 734]]

    (C) The Regional Administrator may require the owner or operator of 
the Astaris-Idaho facility to modify the plan if, at any time, the 
Regional Administrator determines that the O&M plan does not:
    (1) Adequately ensure that each source at the Astaris-Idaho facility 
will be operated and maintained consistent with good air pollution 
control practices and procedures for maximizing control efficiency and 
minimizing emissions at all times;
    (2) Contain adequate procedures for assuring continuous compliance 
with the emission limitations, work practice requirements, and other 
requirements of this section;
    (3) Adequately address the topics identified in this paragraph 
(e)(8); or
    (4) Include sufficient mechanisms for ensuring that the O&M plan is 
being implemented.
    (iii) The O&M plan shall address at least the following topics:
    (A) Procedures for minimizing fugitive PM-10 emissions from material 
handling, storage piles, roads, staging areas, parking lots, mechanical 
processes, and other processes, including but not limited to:
    (1) A visual inspection of all material handling, storage piles, 
roads, staging areas, parking lots, mechanical processes, and other 
processes at least once each week at a regularly scheduled time. The O&M 
plan shall include a list of equipment, operations, and storage piles, 
and what to look for at each source during this regularly scheduled 
inspection.
    (2) A requirement to document the time, date, and results of each 
visual inspection, including any problems identified and any corrective 
actions taken.
    (3) A requirement to take corrective action as soon as possible but 
no later than within 48 hours of identification of operations or 
maintenance problems identified during the visual inspection (unless a 
shorter time frame is specified by this rule or is warranted by the 
nature of the problem).
    (4) Procedures for the application of dust suppressants to and the 
sweeping of material from storage piles, roads, staging areas, parking 
lots, or any open area as appropriate to maintain compliance with 
applicable emission limitations or work practice requirements. Such 
procedures shall include the specification of dust suppressants, the 
application rate, and application frequency, and the frequency of 
sweeping. Such procedures shall also include the procedures for 
application of latex to the main shale pile (source 2) and the 
emergency/contingency raw ore shale pile (source 3) after each reforming 
of the pile or portion of the pile.
    (B) Specifications for parts or elements of control or process 
equipment needing replacement after some set interval prior to breakdown 
or malfunction.
    (C) Process conditions that indicate need for repair, maintenance or 
cleaning of control or process equipment, such as the need to open 
furnace access ports or holes.
    (D) Procedures for the visual inspection of all baghouses, 
scrubbers, and other control equipment of at least once each week at a 
regularly scheduled time.
    (E) Procedures for the regular maintenance of control equipment, 
including without limitation, procedures for the rapid identification 
and replacement of broken or ripped bags for all sources controlled by a 
baghouse, bag dimensions, bag fabric, air-to-cloth ratio, bag cleaning 
methods, cleaning type, bag spacing, compartment design, bag replacement 
schedule, and typical exhaust gas volume.
    (F) Procedures that meet or exceed the manufacturer's 
recommendations for the inspection, maintenance, operation, and 
calibration of each monitoring device required by this part.
    (G) Procedures for the rapid identification and repair of equipment 
or processes causing a malfunction or emergency and for reducing or 
minimizing the duration of and emissions resulting from any malfunction 
or emergency.
    (H) Procedures for the training of staff in procedures listed in 
paragraph (e)(8)(i) of this section.
    (I) For each source identified in Column II of Table 2 to this 
section, additional control measures or other actions to be taken if the 
emissions from the source exceed the opacity action

[[Page 735]]

level identified in Column III of Table 2 to this section.
    (9) For each source identified in Column II of Table 1 to this 
section, the owner or operator of the Astaris-Idaho facility shall 
conduct a visual observation of each source at least once during each 
calendar week.
    (i) If visible emissions are observed for any period of time during 
the observation period, the owner or operator of the Astaris-Idaho 
facility shall immediately, but no later than within 24 hours of 
discovery, take corrective action to minimize visible emissions from the 
source. Such actions shall include, but not be limited to, those actions 
identified in the O&M plan for the source. Immediately upon completion 
of the corrective action, a certified observer shall conduct a visible 
emissions observation of the source using the reference test method for 
the opacity limit with an observation duration of at least six minutes. 
If opacity exceeds the opacity action level, the owner or operator of 
the Astaris-Idaho facility shall take prompt corrective action. This 
process shall be repeated until opacity returns to below the opacity 
action level.
    (ii) In lieu of the periodic visual observation under this paragraph 
(e)(9), the owner or operator of the Astaris-Idaho facility may conduct 
a visible emission observation of any source subject to the requirements 
of this paragraph (e)(9) using the reference test method for the opacity 
limit, in which case corrective action must be taken only if opacity 
exceeds the opacity action level.
    (iii) Should, for good cause, the visible emissions reading not be 
conducted on schedule, the owner or operator of the Astaris-Idaho 
facility shall record the reason observations were not conducted. 
Visible emissions observations shall be conducted immediately upon the 
return of conditions suitable for visible emissions observations.
    (iv) If, after conducting weekly visible emissions observations for 
a given source for more than one year and detecting no visible emissions 
from that source for 52 consecutive weeks, the frequency of observations 
may be reduced to monthly. The frequency of observations for such source 
shall revert to weekly if visible emissions are detected from that 
source during any monthly observation or at any other time.
    (v) With respect to slag handling (Table 1 of this section, source 
8a):
    (A) Visible emission observations shall be made of the slag tapping 
area as viewed from the exterior of the furnace building and in the 
general area of the old slag pits;
    (B) For the first three months after the effective date of the 
opacity limit, the owner or operator of the Astaris-Idaho facility shall 
conduct a visual observation of this source three days each week and 
shall submit the results of such observations at the end of the three 
month time frame. Thereafter, such observations shall be conducted 
weekly or as otherwise provided in this paragraph (e)(9).
    (10) Except for, as applicable, monitoring malfunctions, associated 
repairs, and required quality assurance or control activities 
(including, as applicable, calibration checks and required zero span 
adjustments), the owner or operator of the Astaris-Idaho facility shall 
conduct all monitoring with the monitoring devices required by 
paragraphs (e)(2), (e)(3), (e)(4), (e)(5), (e)(6), and (e)(7) of this 
section in continuous operation at all times that the monitored process 
is in operation. Data recorded during monitoring malfunctions, 
associated repairs, and required quality assurance or control activities 
shall not be used for purposes of this section, including data averages 
and calculations, or fulfilling a minimum data availability requirement. 
The owner or operator of the Astaris-Idaho facility shall use data 
collected during all other periods in assessing the operation of the 
control device and associated control system.
    (11) The minimum data availability requirement for monitoring data 
pursuant to paragraphs (e)(2), (e)(3), (e)(4), (e)(5), (e)(6), and 
(e)(7) of this section is 90% on a monthly average basis. Data 
availability is determined by dividing the time (or number of data 
points) representing valid data by the time (or number of data points) 
that the monitored process is in operation.
    (12) Nothing in this paragraph (e) shall preclude EPA from requiring 
any

[[Page 736]]

other testing or monitoring pursuant to section 114 of the Clean Air 
Act.
    (f) Record keeping requirements. (1) The owner or operator of the 
Astaris-Idaho facility shall keep records of all monitoring required by 
this section that include, at a minimum, the following information:
    (i) The date, place as defined in this section, and time of the 
sampling or measurement.
    (ii) The dates the analyses were performed.
    (iii) The company or entity that performed the analyses.
    (iv) The analytical techniques or methods used.
    (v) The results of the analyses.
    (vi) The operating conditions existing at the time of the sampling 
or measurement.
    (2)(i) The owner or operator of the Astaris-Idaho facility shall 
keep records of all inspections and all visible emissions observations 
required by this section or conducted pursuant to the O&M plan, which 
records shall include the following:
    (A) The date, place, and time of the inspection or observation.
    (B) The name and title of the person conducting the inspection or 
observation.
    (C) In the case of a visible emission observation, the test method 
(Method 9 or visual observation), the relevant or specified 
meteorological conditions, and the results of the observation, including 
raw data and calculations. In the case of visible emission observations 
of slag handling (Table 1 of this section, source 8a), the owner or 
operator of the Astaris-Idaho facility shall also document whether 
visible emissions emanate from fuming of hot slag from pots or other 
points in the old slag pit area.
    (D) For any corrective action required by this section or the O&M 
plan or taken in response to a problem identified during an inspection 
or visible emissions observation required by this section or the O&M 
plan, the time and date corrective action was initiated and completed 
and the nature of corrective action taken.
    (E) The reason for any monitoring not conducted on schedule.
    (ii) With respect to control devices, the requirement of paragraph 
(f)(2)(i) of this section is satisfied by meeting the requirements of 
paragraph (f)(11) of this section.
    (3) The owner or operator of the Astaris-Idaho facility shall 
continuously record the parameters specified in paragraphs (e)(2), 
(e)(3), (e)(4), (e)(5), and (e)(7) of this section, and shall record the 
parameters specified in paragraphs (e)(6) of this section on the 
frequency specified in the monitoring plan required under paragraph 
(e)(6) of this section.
    (4) The owner or operator of the Astaris-Idaho facility shall keep 
records of all excursions from ranges approved under paragraph (e)(3) or 
(g)(1) of this section, including without limitation, the measured 
excursion, time and date of the excursion, duration of the excursion, 
time and date corrective action was initiated and completed, and nature 
of corrective action taken.
    (5) The owner or operator of the Astaris-Idaho facility shall keep 
records of:
    (i) The time, date, and duration of each pressure release from a 
furnace pressure relief vent (Table 1 of this section, source 24), the 
method of detecting the release, the results of the inspection required 
by paragraph (e)(7) of this section, and any actions taken to ensure 
resealing, including the time and date of such actions; and
    (ii) The time, date, and duration of the steaming and draining of 
the pressure relief vent drop tank.
    (6) The owner or operator of the Astaris-Idaho facility shall keep 
records of the time, date, and duration of each flaring of the emergency 
CO flares (Table 1 of this section, source 25) due to an emergency, the 
method of detecting the emergency, and all corrective action taken in 
response to the emergency.
    (7) Until January 1, 2001, the owner or operator of the Astaris-
Idaho facility shall keep records of the date and start/stop time of 
each mini-flush; the phossy water flow rate and outlet temperature 
immediately preceding the start time; whether the operating parameters 
for conducting the mini-flush set forth in paragraph (c)(5)(ii) of this

[[Page 737]]

section were met; and, if the parameters were not met, whether the 
failure to comply with the parameters was attributable to a malfunction 
or emergency.
    (8) The owner or operator of the Astaris-Idaho facility shall keep 
records of the application of dust suppressants to all storage piles, 
roads, staging areas, parking lots, and any other area, including the 
purchase of dust suppressants, the identification of the surface 
covered, type of dust suppressant used, the application rate (gallons 
per square foot), and date of application.
    (9) The owner or operator of the Astaris-Idaho facility shall keep 
records of the frequency of sweeping of all roads, staging areas, 
parking lots, and any other area, including the identification of the 
surface swept and date and duration of sweeping.
    (10) The owner or operator of the Astaris-Idaho facility shall keep 
the following records with respect to the main shale pile (Table 1 of 
this section, source 2) and emergency/contingency raw ore shale pile 
(Table 1 of this section, source 3):
    (i) The date and time of each reforming of the pile or portion of 
the pile.
    (ii) The date, time, and quantity of latex applied.
    (11) The owner or operator of the Astaris-Idaho facility shall keep 
a log for each control device of all inspections of and maintenance on 
the control device, including without limitation the following 
information:
    (i) The date, place, and time of the inspection or maintenance 
activity.
    (ii) The name and title of the person conducting the inspection or 
maintenance activity.
    (iii) The condition of the control device at the time.
    (iv) For any corrective action required by this section or the O&M 
plan or taken in response to a problem identified during an inspection 
required by this section or the O&M plan, the time and date corrective 
action was initiated and completed, and the nature of corrective action 
taken.
    (v) A description of, reason for, and the date of all maintenance 
activities, including without limitation any bag replacements.
    (vi) The reason any monitoring was not conducted on schedule, 
including a description of any monitoring malfunction, and the reason 
any required data was not collected.
    (12) The owner or operator of the Astaris-Idaho facility shall keep 
the following records:
    (i) The Method 9 initial certification and recertification for all 
individuals conducting visual emissions observations using Method 9 as 
required by this section.
    (ii) Evidence that all individuals conducting visual observations as 
required by this section meet the training guidelines described in 
section 1 of Method 22, 40 CFR part 60, appendix A.
    (13) The owner or operator of the Astaris-Idaho facility shall keep 
records on the type and quantity of fuel used in the boilers (Table 1 of 
this section, source 23), including without limitation the date of any 
change in the type of fuel used.
    (14) The owner or operator of the Astaris-Idaho facility shall keep 
records of the results of the daily monitoring of the water quality of 
the scrubber water in the calciner scrubbers (Table 1 of this section, 
source 9a) and the Medusa-Andersen furnace scrubbers (Table 1 of this 
section, sources 18d, 18e, 18f, and 18g) as specified in the O&M plan.
    (15) The owner or operator of the Astaris-Idaho facility shall keep 
records of the time, date, and duration of each damper vent opening for 
the furnace building east and west baghouses (Table 1 of this section, 
sources 18a and 18b), the reason for the damper vent opening, and all 
corrective action taken in response to the damper vent opening.
    (16) The owner or operator of the Astaris-Idaho facility shall keep 
a copy of all reports required to be submitted to EPA under paragraph 
(g) of this section.
    (17) All records required to be maintained by this section and 
records of all required monitoring data and support information shall be 
maintained on site at the Astaris-Idaho facility in a readily accessible 
location for a period of at least five years from the date of the 
monitoring sample, measurement, report, or record.

[[Page 738]]

    (i) Such records shall be made available to EPA on request.
    (ii) Support information includes all calibration and maintenance 
records and all original strip chart recordings for continuous 
monitoring instrumentation.
    (g) Reporting requirements. (1) The owner or operator of the 
Astaris-Idaho facility shall submit to EPA, for each of the operating 
parameters required to be continuously monitored pursuant to paragraphs 
(e)(2), (e)(4), (e)(5), (e)(6), and (e)(7) of this section, a proposed 
range of operation, including a proposed averaging period, and 
documentation demonstrating that operating the source within the 
proposed range will assure compliance with applicable emission 
limitations and work practice requirements of this section.
    (i) The proposed parameter ranges shall be submitted within 210 days 
of August 23, 2000, for all sources except as follows:
    (A) A proposed parameter range for the pressure relief vents (Table 
1 of this section, source 24) shall be submitted within 90 days of 
August 23, 2000.
    (B) Proposed parameter ranges for the calciner scrubbers (Table 1 of 
this section, source 9a) and the excess CO burner (Table 1 of this 
section, source 26b) shall be submitted no later than the date by which 
the emission limitations become applicable to those sources under this 
section.
    (ii) A parameter range for each source shall be approved by EPA 
through the issuance of a title V operating permit to the Astaris-Idaho 
facility, or as a modification thereto. Until EPA approval of the 
acceptable range for a parameter for a source, the owner or operator of 
the Astaris-Idaho facility shall maintain and operate the source to stay 
within the proposed range for that source.
    (iii) If EPA determines at any time that the proposed or approved 
range does not adequately assure compliance with applicable emission 
limitations and work practice requirements, EPA may request additional 
information, request that revised parameter ranges and supporting 
documentation be submitted to EPA for approval, or establish alternative 
approved parameter ranges through the issuance of a title V operating 
permit to the Astaris-Idaho facility, or as a modification thereto.
    (iv) This requirement to submit proposed parameter ranges is in 
addition to and separate from any requirement to develop parameter 
ranges under 40 CFR part 64 (Compliance Assurance Monitoring rule). 
However, monitoring for any pollutant specific source that meets the 
design criteria of 40 CFR 64.3 and the submittal requirements of 40 CFR 
64.4 may be submitted to meet the requirements of this paragraph (g)(1).
    (2) The owner or operator of Astaris-Idaho shall submit to EPA a bi-
monthly report covering the preceding two calendar months (e.g., 
January-February, March-April). Such report shall be submitted 15 days 
after the end of each two month period, with the last such report 
covering the period of November and December 2000. The report shall 
include the following:
    (i) The date and start/stop time of each mini-flush; the phossy 
water flow rate and outlet temperature immediately preceding the start 
time; and a ``Yes/No'' column indicating whether the operating 
parameters for conducting the mini-flush set forth in paragraph 
(c)(5)(ii) of this section were met.
    (ii) For any ``No'' entry, an indication of whether the failure to 
comply with the parameters was attributable to a malfunction and, if so, 
the date and time of notification to EPA of the malfunction and a copy 
of the contemporaneous record described in paragraph (c)(5)(ii) of this 
section.
    (iii) For each month, the total mini-flush time in minutes, the 
number of operating days for the secondary condenser, and the average 
minutes per operating day.
    (3) The owner or operator of the Astaris-Idaho facility shall submit 
to EPA a semi-annual report of all monitoring required by this section 
covering the six month period from January 1 through June 30 and July 1 
through December 31 of each year. Such report shall be submitted 30 days 
after the end of such six month period.
    (i) The semiannual report shall:

[[Page 739]]

    (A) Identify each time period (including the date, time, and 
duration) during which a visible emissions observation or PM-10 
emissions measurement exceeded the applicable emission limitation and 
state what actions were taken to address the exceedence. If no action 
was taken, the report shall state the reason that no action was taken.
    (B) Identify each time period (including the date, time, and 
duration) during which there was an excursion of a monitored parameter 
from the approved range and state what actions were taken to address the 
excursion. If no action was taken, the report shall state the reason 
that no action was taken.
    (C) Identify each time period (including the date, time, and 
duration) during which there was an excursion above the opacity action 
level and state what actions were taken to address the excursion. If no 
action was taken, the report shall state the reason that no action was 
taken.
    (D) Identify each time period (including date, time and duration) of 
each flaring of the emergency CO flares (Table 1 of this section, source 
25) due to an emergency and state what actions were taken to address the 
emergency. If no action was taken, the report shall state the reason 
that no action was taken.
    (E) Identify each time period (including date, time and duration) of 
each pressure release from a pressure relief vent (Table 1 of this 
section, source 24) and state what actions were taken to address the 
pressure release. If no action was taken, the report shall state the 
reason that no action was taken.
    (F) Include a summary of all monitoring required under this section.
    (G) Include a copy of the source test report for each performance 
test conducted in accordance with paragraph (e)(1) of this section.
    (H) Describe the status of compliance with this section for the 
period covered by the semi-annual report, the methods or other means 
used for determining the compliance status, and whether such methods or 
means provide continuous or intermittent data.
    (1) Such methods or other means shall include, at a minimum, the 
monitoring, record keeping, and reporting required by this section.
    (2) If necessary, the owner or operator of Astaris-Idaho shall also 
identify any other material information that must be included in the 
report to comply with section 113(c)(2) of the Clean Air Act, which 
prohibits making a knowing false certification or omitting material 
information.
    (3) The determination of compliance shall also take into account any 
excursions from the required parameter ranges reported pursuant to 
paragraph (g)(3)(i)(B) of this section.
    (ii) Each semi-annual report submitted pursuant to this paragraph 
shall contain certification by a responsible official, as defined in 40 
CFR 71.2, of truth, accuracy and completeness. Such certification shall 
state that, based on information and belief formed after reasonable 
inquiry, the statements and information in the documents are true, 
accurate, and complete.
    (4) The owner or operator of the Astaris-Idaho facility shall notify 
EPA by telephone or facsimile within 48 hours of the beginning of each 
flaring of the emergency CO flares (Table 1 of this section, source 25) 
due to an emergency.
    (5)(i) For emissions that continue for more than two hours in excess 
of the applicable emissions limitation, the owner or operator of the 
Astaris-Idaho facility shall notify EPA by telephone or facsimile within 
48 hours. A written report containing the following information shall be 
submitted to EPA within ten working days of the occurrence of the excess 
emissions:
    (A) The identity of the stack and/or other source where excess 
emissions occurred.
    (B) The magnitude of the excess emissions expressed in the units of 
the applicable emissions limitation and the operating data and 
calculations used in determining the magnitude of the excess emissions.
    (C) The time and duration or expected duration of the excess 
emissions.
    (D) The identity of the equipment causing the excess emissions.
    (E) The nature and probable cause of such excess emissions.

[[Page 740]]

    (F) Any corrective action or preventative measures taken.
    (G) The steps taken or being taken to limit excess emissions.
    (ii) Compliance with this paragraph is required even in cases where 
the owner or operator of the Astaris-Idaho facility does not seek to 
establish an affirmative defense of startup, shutdown, malfunction, or 
emergency under paragraphs (c)(8) or (c)(9) of this section.
    (6) The owner or operator of Astaris-Idaho shall notify EPA if it 
uses any fuel other than natural gas in the boilers (Table 1 of this 
section, source 23) within 24 hours of commencing use of such other 
fuel.
    (7) All reports and notices submitted under this section shall be 
submitted to EPA at the addresses set forth below: U.S. Environmental 
Protection Agency, Region 10, State and Tribal Programs Unit, Re: 
Astaris-Idaho FIP, Office of Air Quality, OAQ 107, 1200 Sixth Avenue, 
Seattle, Washington 98101, (206) 553-1189, Fax: 206-553-0404.
    (8) The owner or operator of the Astaris-Idaho facility shall submit 
a copy of each report, notice, or other document submitted to EPA under 
this section contemporaneously to the Shoshone-Bannock Tribes at the 
following address: Shoshone-Bannock Tribes, Air Quality Program, Land 
Use Department, P.O. Box 306, Fort Hall, Idaho, 83203, telephone (208) 
478-3853; fax (208) 237-9736. The owner or operator of the Astaris-Idaho 
facility shall also provide contemporaneously to the Tribes notice by 
telephone in the event notice by telephone is provided to EPA under this 
section.
    (h) Title V Permit. (1) Additional monitoring, work practice, record 
keeping, and reporting requirements may be included in the title V 
permit for the Astaris-Idaho facility to assure compliance with the 
requirements of this section.
    (2)(i) A requirement of paragraph (e), (f), or (g) of this section 
may be revised through issuance or renewal of a title V operating permit 
by EPA to the Astaris-Idaho facility under 40 CFR part 71 or through a 
significant permit modification thereto, provided that:
    (A) Any alternative monitoring, record keeping, or reporting 
requirements that revise requirements of paragraphs (e), (f), or (g) of 
this section:
    (1) Are sufficient to yield reliable data from the relevant time 
period that are representative of the source's compliance with the 
requirements of paragraph (c) of this section; and
    (2) Provide no less compliance assurance than the requirements of 
paragraphs (e), (f), or (g) of this section that the alternative 
requirements would replace.
    (B) In the event the alternative monitoring, record keeping, or 
reporting requirements are requested by the owner or operator of the 
Astaris-Idaho facility, Astaris-Idaho's application for its title V 
operating permit or significant permit modification must include:
    (1) The proposed alternative monitoring, record keeping, or 
reporting permit terms or conditions;
    (2) The specific provisions of paragraphs (e), (f), or (g) of this 
section the owner or operator of the Astaris-Idaho facility is seeking 
to revise; and
    (3) The supporting documentation to establish that the alternative 
permit terms or conditions meet the requirements of paragraph 
(h)(2)(i)(A) of this section.
    (C) The draft and final title V operating permit or significant 
permit modification identifies the specific provisions of paragraphs 
(e), (f), or (g) of this section being revised;
    (D) In the event a revision to paragraphs (e), (f), or (g) of this 
section is accomplished through a significant modification to Astaris-
Idaho's title V operating permit, it is accomplished using the 
significant permit modification procedures of 40 CFR part 71; and
    (ii) Upon issuance or renewal of Astaris-Idaho's title V permit or a 
significant permit modification thereto that revises a requirement of 
paragraphs (e), (f), or (g) of this section, the revision shall remain 
in effect as a requirement of this section not withstanding expiration, 
termination, or revocation of Astaris-Idaho's title V operating permit.
    (i) Compliance schedule. Except as otherwise provided in this 
section, the owner or operator of the Astaris-Idaho

[[Page 741]]

facility shall comply with the requirements of this section within 90 
days of August 23, 2000.

[[Page 742]]



                                            Table 1 to Sec.  49.10711
----------------------------------------------------------------------------------------------------------------
                                                                    III  Emission
          I  Source No.              II  Source description     limitations and work       IV  Reference test
                                                                practice requirements            method
----------------------------------------------------------------------------------------------------------------
1................................  Railcar unloading of       Opacity shall not exceed  Method 9.
                                    shale (ore) into           10% over a 6 minute
                                    underground hopper.        average.
2................................  Main shale pile (portion   Opacity shall not exceed
                                    located on Fort Hall       10% over a 6 minute
                                    Indian Reservation).       average.
                                                              Latex shall be applied    Method 9.
                                                               after each reforming of
                                                               pile or portion of pile.
3................................  Emergency/contingency raw  Opacity shall not exceed  Method 9.
                                    ore shale pile.            10% over a 6 minute
                                                               average.
                                                              Latex shall be applied
                                                               after each reforming of
                                                               pile or portion of pile.
4................................  Stacker and reclaimer....  Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
5a...............................  East shale baghouse......  a. Emissions shall not    a. Methods 201/201A.
                                                               exceed 0.10 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
5b...............................  East shale baghouse        b. Opacity shall not      b. Method 9.
                                    building.                  exceed 10% over a 6
                                                               minute average from any
                                                               portion of the building.
6a...............................  Middle shale baghouse....  a. Emissions shall not    a. Methods 201/201A.
                                                               exceed 0.50 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
6b...............................  Middle shale baghouse      b. Opacity shall not      b. Method 9.
                                    building.                  exceed 10% over a 6
                                                               minute average from any
                                                               portion of the building.
6c...............................  Middle shale baghouse      c. Opacity shall not      c. Method 9.
                                    outside capture hood--     exceed 10% over a 6
                                    fugitive emissions.        minute average.
7a...............................  West shale baghouse......  a. Emissions shall not    a. Methods 201/201A.
                                                               exceed 0.50 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
7b...............................  West shale baghouse        b. Opacity shall not      b. Method 9.
                                    building.                  exceed 10% over a 6
                                                               minute average from any
                                                               portion of the building.
7c...............................  West shale baghouse        c. Opacity shall not      c. Method 9.
                                    outside capture hood--     exceed 10% over a 6
                                    fugitive emissions.        minute average.
8a...............................  a. Slag handling: slag     a. Until November 1,      ........................
                                    pit area and pot rooms.    2000, emissions from
                                                               the slag pit area and
                                                               the pot rooms shall be
                                                               exempt from opacity
                                                               limitations.

[[Page 743]]

 
                                                              Effective November 1,     Method 9.
                                                               2000, opacity of
                                                               emissions in the slag
                                                               pit area and from pot
                                                               rooms shall not exceed
                                                               10% over a 6 minute
                                                               average. Exemption:
                                                               Fuming of molten slag
                                                               in transport pots
                                                               during transport are
                                                               exempt provided the
                                                               pots remain in the pot
                                                               room for at least 3
                                                               minutes after the flow
                                                               of molten slag to the
                                                               pots has ceased.
                                                              See also 40 CFR           ........................
                                                               49.10711(c)(4).
8b...............................  b. Recycle material pile.  b. Opacity shall not      b. Method 9.
                                                               exceed 10% over a 6
                                                               minute average.
8c...............................  c. Dump to slag pile.....  c. Fuming of molten slag  ........................
                                                               during dump to slag
                                                               pile shall be exempt
                                                               from opacity
                                                               limitations.
9a...............................  Calciner scrubbers.......  Effective December 1,     Method 5 (all
                                                               2000: The calciner        particulate collected
                                                               scrubbing chain (air      shall be counted as PM-
                                                               pollution control         10) and Method 202 at
                                                               equipment) shall          the scrubber outlet.
                                                               achieve an overall        Method 201A and Method
                                                               control efficiency \1\    202 at the inlet to the
                                                               of at least 90% for PM-   scrubber systems.
                                                               10 (including
                                                               condensible PM-10) when
                                                               inlet loadings equal or
                                                               exceed 0.150 grains per
                                                               dry standard cubic foot.
                                                              The arithmetic average    Method 5 (all
                                                               of the emission           particulate collected
                                                               concentration from the    shall be counted as PM-
                                                               four stacks associated    10).
                                                               with each calciner
                                                               shall not exceed 0.0080
                                                               grains per dry standard
                                                               cubic foot PM-10
                                                               (excluding condensible
                                                               PM-10) \2\.
                                                              The arithmetic average    Method 5 (all
                                                               of the emission           particulate collected
                                                               concentration from the    shall be counted as PM-
                                                               four stacks associated    10) and Method 202 at
                                                               with each calciner        the scrubber outlet.
                                                               shall not exceed 0.0180
                                                               grains per dry standard
                                                               cubic foot PM-10
                                                               (including condensible
                                                               PM-10) \2\.
                                   Calciner scrubbers.......  Total gas flow rate       Method 2.
                                                               through any one outlet
                                                               stack shall not exceed
                                                               40,800 dry standard
                                                               cubic feet per minute.
                                                              The calciner scrubbers    ........................
                                                               shall be exempt from
                                                               opacity limitations.
9b...............................  Calciner traveling grate-- b. Opacity shall not      Method 9.
                                    fugitive emissions.        exceed 10% over a 6
                                                               minute average.
10...............................  Calciner cooler vents....  Emissions from any one    Methods 201/201A.
                                                               calciner cooler vent
                                                               shall not exceed 4.40
                                                               lb. PM-10/hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
11...............................  Nodule pile..............  Opacity shall not exceed  Method 9.
                                                               20% over a 6 minute
                                                               average.
12a..............................  North nodule discharge     a. Emissions shall not    a. Methods 201/201A.
                                    baghouse.                  exceed 0.20 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
12b..............................  South nodule discharge     b. Emissions shall not    b. Methods 201/201A.
                                    baghouse.                  exceed 0.20 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).

[[Page 744]]

 
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
12c..............................  North and south nodule     c. Opacity shall not      c. Method 9.
                                    discharge baghouse         exceed 10% over a 6
                                    outside capture hood--     minute average.
                                    fugitive emissions.
13...............................  Nodule reclaim baghouse..  a. Emissions shall not    Methods 201/201A.
                                                               exceed 0.90 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
14...............................  Screened shale fines pile  Opacity shall not exceed  Method 9.
                                    adjacent to the West       20% over a 6 minute
                                    shale building.            average.
                                   Proportioning building
15a..............................  a. East nodule baghouse..  a. Emissions shall not    a. Methods 201/201A.
                                                               exceed 0.60 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
15b..............................  b. West nodule baghouse..  b. Emissions shall not    b Methods 201/201A .
                                                               exceed 0.30 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9
                                                               10% over a 6 minute
                                                               average.
15c..............................  c. Proportioning building- c. Opacity shall not      c. Method 9.
                                    -fugitive emissions.       exceed 10% over a 6
                                                               minute average from any
                                                               portion of the building.
16a..............................  Nodule stockpile baghouse  a. Emissions shall not    a. Methods 201/201A.
                                                               exceed 0.30 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
16b..............................  Nodule stockpile baghouse  b. Opacity shall not      b. Method 9.
                                    outside capture hood--     exceed 10% over a 6
                                    fugitive emissions.        minute average.
17a..............................  Dust silo baghouse.......  a. Emissions shall not    a. Methods 201/201A.
                                                               exceed 0.150 lb. PM-10/
                                                               hr(excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
17b..............................  Dust silo fugitive         b. Opacity shall not      b. Method 9.
                                    emissions and pneumatic    exceed 10% over a 6
                                    dust handling system.      minute average from any
                                                               portion of the dust
                                                               silo or pneumatic dust
                                                               handling system.
                                   Furnace building
18a..............................  a. East baghouse.........  a. Emissions shall not    a. Methods 201/201A.
                                                               exceed 0.80 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
18b..............................  b. West baghouse.........  b. Emissions shall not    b. Methods 201/201A.
                                                               exceed 0.80 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.

[[Page 745]]

 
18c..............................  c. Furnace building; any   c. Until April 1, 2002,   c. Method 9.
                                    emission point except      opacity shall not
                                    18a, 18b, 18d, 18e, 18f,   exceed 20% over a 6
                                    or 18g.                    minute average.
                                                              Effective April 1, 2002,  Method 9.
                                                               opacity shall not
                                                               exceed 10% over a 6
                                                               minute average.
18d..............................  d. Furnace 1      d, e, f, g: Emissions     d, e, f, g: Methods 201/
                                    Medusa-Andersen.           from any one Medusa-      201A.
                                                               Andersen stack shall
                                                               not exceed 2.0 lb/hr
                                                               (excluding condensible
                                                               PM-10).
18e..............................  e. Furnace 2
                                    Medusa-Andersen.
18f..............................  f. Furnace 3      Opacity from any one      Method 9.
                                    Medusa-Andersen.           Medusa-Andersen shall
                                                               not exceed 10% over a 6
                                                               minute average.
18g..............................  g. Furnace 4
                                    Medusa-Anderson.
19...............................  Briquetting building.....  Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average from any
                                                               portion of the building.
20a..............................  a. Coke handling baghouse  a. Emissions shall not    a. Methods 201/201A.
                                                               exceed 1.70 lb. PM-10/
                                                               hr (excluding
                                                               condensible PM-10).
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
20b..............................  b. Coke unloading          b. Opacity shall not      b. Method 9.
                                    building.                  exceed 10% over a 6
                                                               minute average from any
                                                               portion of the coke
                                                               unloading building.
21a..............................  a. Phosphorous loading     Emissions shall not       a. Methods 201/201A.
                                    dock (phos dock),          exceed 0.0040 grains
                                    Andersen Scrubber.         per dry standard cubic
                                                               foot PM-10 (excluding
                                                               condensible PM-10).
                                                              Flow rate (throughput to  Method 2.
                                                               the control device)
                                                               shall not exceed
                                                               manufacturer's design
                                                               specification.
                                                              Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average.
21b..............................  b. Phosphorous loading     b. Opacity shall not      b. Method 9.
                                    dock--fugitive emissions.  exceed 10% over a 6
                                                               minute average.
22...............................  All roads................  Opacity shall not exceed  Method 9.
                                                               20% over a 6 minute
                                                               average.
23...............................  Boilers..................  Emissions from any one    Methods 201/201A.
                                                               boiler shall not exceed
                                                               0.090 lb. PM-10/hr
                                                               (excluding condensible
                                                               PM-10).
                                                              Opacity from any one      Method 9.
                                                               boiler shall not exceed
                                                               10% over a 6 minute
                                                               average.
24...............................  Pressure relief vents....  Opacity shall not exceed  Method 9.
                                                               10% over a 6 minute
                                                               average except:
                                                              (i) during a pressure     ........................
                                                               release, as defined in
                                                               40 CFR
                                                               49.10711(e)(7)(ii),
                                                               which shall be exempt
                                                               from opacity limits;
                                                               and.
                                                              (ii) during steaming and  ........................
                                                               draining of the
                                                               pressure relief vent
                                                               drop tank, which shall
                                                               occur no more than
                                                               twice each day, opacity
                                                               shall not exceed 20%
                                                               over a 6 minute average.
                                                              Pressure release point    Inspection of pressure
                                                               shall be maintained at    relief vent and
                                                               18 inches of water        monitoring device
                                                               pressure at all times.

[[Page 746]]

 
25...............................  Furnace CO emergency       Except during an          Method 9.
                                    flares.                    emergency flaring
                                                               caused by an emergency
                                                               as defined in 40 CFR
                                                               49.10711(b), opacity
                                                               shall not exceed 10%
                                                               over a 6 minute average.
                                                              Emissions during an       ........................
                                                               emergency flaring
                                                               caused by an emergency
                                                               are exempt from opacity
                                                               limitations.
26a..............................  a. Existing elevated       a. See 40 CFR             ........................
                                    secondary condenser        49.10711(c)(5).
                                    flare and ground flare.
26b..............................  b. Excess CO burner (to    b. Effective January 1,   i. Methods 201/201A and
                                    be built to replace the    2001: i. The control      Method 202 for the
                                    existing elevated          efficiency \1\ of the     inlet (sampling
                                    secondary condenser        air pollution control     locations to be
                                    flare and ground flare).   equipment shall achieve   determined). Method 201/
                                                               an overall control        201A (Method 5 if gas
                                                               efficiency of at least    stream contains
                                                               95% for PM-10             condensed water vapor)
                                                               (including condensible    and Method 202 for the
                                                               PM-10) when inlet         outlet.
                                                               loadings equal or
                                                               exceed 0.50 grains per
                                                               dry standard cubic foot.
                                                              ii. Emissions from the    ii. Method 201/201A
                                                               excess CO burner shall    (Method 5 if gas stream
                                                               not exceed 24.0 lbs PM-   contains condensed
                                                               10/hr (including          water vapor) and Method
                                                               condensible PM-10).       202 for the outlet.
                                                              Effective January 1,      Method 9.
                                                               2001, opacity shall not
                                                               exceed 10% over a 6
                                                               minute average.
----------------------------------------------------------------------------------------------------------------
\1\ The control efficiency (as a percentage) of the air pollution control equipment shall be determined by the
  following equation:
CE (%)=100 {1-([Fho+Bho]/[Fhi+Bhi]){time}
Where CE is the control efficiency
Fhi is the front half emissions for the inlet
Bhi is the back half emissions for the inlet
Fho is the sum of the front half emissions from each stack for the outlet
Bho is the sum of the back half emissions from each stack for the outlet
Inlet and all outlet stacks to be sampled simultaneously for required testing.
The individual source tests for the inlet and outlet to the emission control system shall be conducted
  simultaneously or within 3 hours of each other with the same operating conditions.
\2\ The individual source tests for the four stacks associated with each calciner shall be conducted
  simultaneously or within 3 hours of each other with the same operating conditions.


                                            Table 2 to Sec.  49.10711
----------------------------------------------------------------------------------------------------------------
                                                                 III  Opacity action
           I Source No.              II Source description              level           IV Reference test method
----------------------------------------------------------------------------------------------------------------
1................................  Railcar unloading of       Any visible emissions...  Visual observation.
                                    shale (ore) into
                                    underground hopper.
2................................  Main shale pile (portion   Any visible emissions...  Visual observation.
                                    located on Fort Hall
                                    Indian Reservation).
3................................  Emergency/ contingency     Any visible emissions...  Visual observation.
                                    raw ore shale pile.
4................................  Stacker and reclaimer....  Any visible emissions...  Visual observation.
5a...............................  East shale baghouse......  a. 5% over a 6 minute     a. Method 9.
                                                               average.
5b...............................  East shale baghouse        b. Any visible emissions  b. Visual observation.
                                    building.

[[Page 747]]

 
6a...............................  Middle shale baghouse....  a. 5% over a 6 minute     a. Method 9.
                                                               average.
6b...............................  Middle shale baghouse      b. Any visible emissions  b. Visual observation.
                                    building.
6c...............................  Middle shale baghouse      c. 5% over a 6 minute     c. Method 9.
                                    outside capture hood--     average.
                                    fugitive emissions.
7a...............................  West shale baghouse......  a. 5% over a 6 minute     a. Method 9.
                                                               average.
7b...............................  West shale baghouse        b. Any visible emissions  b. Visual observation.
                                    building.
7c...............................  West shale baghouse        c. 5% over a 6 minute     c. Method 9.
                                    outside capture hood--     average.
                                    fugitive emissions.
8a...............................  a. Slag handling: slag     a. Until November 1,      Method 9.
                                    pit area and pot rooms.    2000, emissions from
                                                               the slag pit area and
                                                               the pot rooms shall be
                                                               exempt from opacity
                                                               limits and opacity
                                                               action levels.
                                                              Effective November 1,
                                                               2000, the opacity
                                                               action level for this
                                                               source shall be 5% over
                                                               a 6 minute average.
                                                              Exemption: Fuming of
                                                               molten slag in
                                                               transport pots during
                                                               transport are exempt
                                                               from opacity limits and
                                                               opacity action levels
                                                               provided the pots
                                                               remain in the pot room
                                                               for at least 3 minutes
                                                               after the flow of
                                                               molten slag to the pots
                                                               has ceased.
8b...............................  b. Recycle material pile.  b. Any visible emissions  b. Visual observation.
8c...............................  c. Dump to slag pile.....  c. Fuming of molten slag
                                                               during dump to slag
                                                               pile shall be exempt
                                                               from opacity limits and
                                                               opacity action levels.
9a...............................  Calciner scrubbers.......  a. The calciner
                                                               scrubbers shall be
                                                               exempt from opacity
                                                               limits and opacity
                                                               action levels.
9b...............................  Calciner traveling grate-- b. 5% over a 6 minute
                                    fugitive emissions.        average.
10...............................  Calciner cooler vents....  5% over a 6 minute        Method 9.
                                                               average.
11...............................  Nodule pile..............  10% over a 6 minute       Method 9.
                                                               average.
12a..............................  North nodule discharge     a. 5% over a 6 minute     a. Method 9.
                                    baghouse.                  average.
12b..............................  South nodule discharge     b. 5% over a 6 minute     b. Method 9.
                                    baghouse.                  average.
12c..............................  North and south nodule     c. 5% over a 6 minute     c. Method 9.
                                    discharge baghouse         average.
                                    outside capture hood--
                                    fugitive emissions.
13...............................  Nodule reclaim baghouse..  5% over a 6 minute        Method 9.
                                                               average.
14...............................  Screened shale fines pile  10% over a 6 minute       Method 9.
                                    adjacent to the West       average.
                                    shale building.
                                   Proportioning building...
15a..............................  a. East nodule baghouse..  a. 5% over a 6 minute     a. Method 9.
                                                               average..
15b..............................  b. West nodule baghouse..  b. 5% over a 6 minute     b. Method 9.
                                                               average.
15c..............................  c. Proportioning building- c. Any visible emissions  c. Visual observation.
                                    -fugitive emissions.
16a..............................  Nodule stockpile baghouse  a. 5% over a 6 minute     a. Method 9.
                                                               average.
16b..............................  Nodule stockpile baghouse  b. 5% over a 6 minute     b. Method 9.
                                    outside capture hood--     average.
                                    fugitive emissions.
17a..............................  Dust silo baghouse.......  a. 5% over a 6 minute     a. Method 9.
                                                               average.
17b..............................  Dust silo fugitive         b. Any visible emissions  b. Visual observation.
                                    emissions and pneumatic
                                    dust handling system.
                                   Furnace building.........
18a..............................  a. East baghouse.........  a. 5% over a 6 minute     a. Method 9.
                                                               average.

[[Page 748]]

 
18b..............................  b. West baghouse.........  b. 5% over a 6 minute     b. Method 9.
                                                               average.
18c..............................  c. Furnace building; any   c. Until April 1, 2002,   c. Method 9.
                                    emission point except      10% over a 6 minute
                                    18a, 18b, 18d, 18e, 18f,   average.
                                    or 18g.
                                                              Effective April 1, 2002,  Method 9.
                                                               5% over a 6 minute
                                                               average.
18d..............................  d. Furnace 1      d, e, f, g: 5% over a 6   d, e, f, g: Method 9.
                                    Medusa-Andersen.           minute average.
18e..............................  e. Furnace 2
                                    Medusa-Andersen.
18f..............................  f. Furnace 3
                                    Medusa-Andersen.
18g..............................  g. Furnace 4
                                    Medusa-Anderson.
19...............................  Briquetting building.....  Any visible emissions...  Visual observation.
20a..............................  a. Coke handling baghouse  a. 5% over a 6 minute     a. Method 9.
                                                               average.
20b..............................  b. Coke unloading          b. Any visible emissions  b.Visual observation.
                                    building.
21a..............................  Phosphorous loading dock   a. 5% over a 6 minute     Method 9.
                                    (phos dock), Andersen      average.
                                    Scrubber.
21b..............................  b. Phosphorous loading     b. 5% over a 6 minute     b. Method 9.
                                    dock--fugitive emissions.  average.
22...............................  All roads................  10% over a 6 minute       Method 9.
                                                               average.
23...............................  Boilers..................  5% over a 6 minute        Method 9.
                                                               average.
24...............................  Pressure relief vents....  5% over a 6 minute        Method 9.
                                                               average.
25...............................  Furnace CO emergency       Any visible emissions     Visual observation.
                                    flares.                    except during an
                                                               emergency flaring
                                                               caused by an emergency
                                                               as defined in 40 CFR
                                                               49.10711(b).
                                                              Emissions during an
                                                               emergency flaring
                                                               caused by an emergency
                                                               are exempt from opacity
                                                               limits and opacity
                                                               action levels.
26a..............................  a. Existing elevated       a. Exempt from opacity
                                    secondary condenser        limits and opacity
                                    flare and ground flare.    action levels.
26b..............................  b. Excess CO burner (to    5% over a 6 minute        Method 9.
                                    be built to replace the    average.
                                    elevated secondary
                                    condenser flare and
                                    ground flare).
----------------------------------------------------------------------------------------------------------------


[[Page 749]]



Secs. 49.10712-49.17810  [Reserved]

  Appendix to Subpart M of Part 49--Alphabetical Listing of Tribes and 
                         Corresponding Sections

------------------------------------------------------------------------
                                    Refer to the following sections in
          Indian tribe                          subpart M
------------------------------------------------------------------------
Burns Paiute Tribe.............  Secs.  49.9861-49.9890
Chehalis Reservation--           Secs.  49.9891-49.9920
 Confederated Tribes of the.
Coeur d'Alene Tribe............  Secs.  49.9921-49.9950
Colville Reservation--           Secs.  49.9951-49.9980
 Confederated Tribes of the.
Coos, Lower Umpqua and Suislaw   Secs.  49.9981-49.10010
 Indians--Confederated Tribes
 of the.
Coquille Tribe.................  Secs.  49.10011-49.10040
Cow Creek Band of Umpqua         Secs.  49.10041-49.10100
 Indians.
Grand Ronde Community--          Secs.  49.10101-49.10130
 Confederated Tribes of the.
Hoh Indian Tribe...............  Secs.  49.10131-49.10160
Jamestown S'Klallam Tribe......  Secs.  49.10161-49.10190
Kalispel Indian Community......  Secs.  49.10191-49.10220
Klamath Indian Tribe...........  Secs.  49.10221-49.10250
Kootenai Tribe.................  Secs.  49.10251-49.10280
Lower Elwah Tribal Community...  Secs.  49.10281-49.10310
Lummi Tribe....................  Secs.  49.10311-49.10340
Makah Indian Tribe.............  Secs.  49.10341-49.10370
Muckleshoot Indian Tribe.......  Secs.  49.10371-49.10400
Nez Perce Tribe................  Secs.  49.10401-49.10430
Nisqually Indian Tribe.........  Secs.  49.10431-49.10460
Nooksack Indian Tribe..........  Secs.  49.10461-49.10490
Port Gamble Indian Community...  Secs.  49.10491-49.10520
Puyallup Tribe.................  Secs.  49.10521-49.10550
Quileute Tribe.................  Secs.  49.10551-49.10580
Quinault Tribe.................  Secs.  49.10581-49.10610
Samish Indian Tribe............  Secs.  49.10611-49.10640
Sauk-Suiattle Indian Tribe.....  Secs.  49.10641-49.10670
Shoalwater Bay Tribe...........  Secs.  49.10671-49.10700
Shoshone-Bannock Tribes of the   Secs.  49.10701-49.10730
 Fort Hall Indian Reservation.
Siletz Reservation--             Secs.  49.10731-49.10760
 Confederated Tribes of.
Skokomish Indian Tribe.........  Secs.  49.10761-49.10790
Snoqualmie Indian Tribe........  Secs.  49.10791-49.10820
Spokane Tribe..................  Secs.  49.10821-49.10850
Squaxin Island Tribe...........  Secs.  49.10851-49.10880
Stillaquamish Tribe............  Secs.  49.10881-49.10920
Suquamish Indian Tribe.........  Secs.  49.10921-49.10950
Swinomish Indians..............  Secs.  49.10951-49.10980
Tulalip Tribes.................  Secs.  49.10981-49.11010
Umatilla Reservation--           Secs.  49.11011-49.11040
 Confederated Tribes of the.
Upper Skagit Indian Tribe......  Secs.  49.11041-49.11070
Warm Springs Reservation--       Secs.  49.11071-49.11100
 Confederated Tribes of the.
Yakama Indian Nation--           Secs.  49.11101-49.11130
 Confederated Tribes and Bands
 of the.
------------------------------------------------------------------------


[[Page 751]]



                              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.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected



[[Page 753]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2003)

                      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)

                   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)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      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 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)

[[Page 754]]

    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture

[[Page 755]]

         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition 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)
       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)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      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 the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)

[[Page 756]]

    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     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)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--599)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1400)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           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)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

[[Page 757]]

                      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  Department of the Treasury (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)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    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  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 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)

[[Page 758]]

        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 Industry and Security, 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)

          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)

[[Page 759]]

        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 (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (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)
       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)

[[Page 760]]

        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)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         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)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)

[[Page 761]]

       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--3899)
       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 (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--299)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       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)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)

[[Page 762]]

        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            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 Standards, 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  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      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)
       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)

[[Page 763]]

        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)
       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)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      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)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       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)

               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)

[[Page 764]]

        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)
        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)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States 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)

[[Page 765]]

           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)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          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 Service, 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)
       102  Federal Management Regulation (Parts 102-1--102-299)
       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) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)

[[Page 766]]

       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, 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)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (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 
                (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)

[[Page 767]]

        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  Corporation for National and Community Service (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)
     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)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Transportation (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      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)

[[Page 768]]

         7  United States 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  Broadcasting Board of Governors (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)
        23  Social Security Administration (Parts 2300--2399)
        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 (Parts 
                5400--5499)
        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)

[[Page 769]]

                       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 Motor Carrier Safety 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)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Transportation (Parts 1500--1599)

                   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 Fishing and Related Activities (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)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 771]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2003)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  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
  Food and Nutrition 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
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  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
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 772]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
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
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
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
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  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, United States      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                   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                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 773]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  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 Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
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 Development Administration               13, III
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
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
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                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 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
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  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                5, III, LXXVII; 14, VI; 
                                                  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

[[Page 774]]

  Trade Representative, Office of the United      15, XX
       States
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
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 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              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
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 Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
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
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
Food and Drug Administration                      21, I
Food and Nutrition 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
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 775]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  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
  Temporary Duty (TDY) 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
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  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
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Federal Emergency Management Agency             44, I
  Immigration and Naturalization                  8, I
Housing and Urban Development, Department of      5, LXV; 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
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  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
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
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; 42, I
Industry and Security, Bureau of                  15, VII
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
Interior Department

[[Page 776]]

  American Indians, Office of the Special         25, VII
       Trustee
  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
  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
  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, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
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                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  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 Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II

[[Page 777]]

Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  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
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
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 and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 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 Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
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 Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
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                       5, XLIII; 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
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
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

[[Page 778]]

Oklahoma City National Memorial Trust             36, XV
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, United States        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
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 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 Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
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, XXXV
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
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
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; 28, XI
  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 Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L

[[Page 779]]

  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Commercial Space Transportation                 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
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  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 Security Administration          49, XII
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        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
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the 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 781]]



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, 
2001, 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.
Title 40 was established at 36 FR 12213, June 29, 1971. For the period 
before January 1, 2001, see the ``List of CFR Sections Affected, 1964-
1972, 1973-1985, and 1986-2000'' which is published in ten separate 
volumes.

                                  2001

40 CFR
                                                                   66 FR
                                                                    Page
Chapter I
Chapter I  Nomenclature change..............................34375, 34376
    Technical corrections..........................................34376
2.213  (a) amended.................................................34376
8  Revised.........................................................63468
9.1  Table amended (OMB numbers)...3776, 6481, 6895, 7061, 30807, 34547, 
                                                     40130, 42122, 65337
    Table amended (OMB numbers); eff. 8-7-01.......................31103
    Regulation at 66 FR 7061 eff. date delayed.....................16134
    Regulation at 66 FR 7061 eff. date delayed to 2-22-02..........28342
    Regulation at 65 FR 43661 eff. 4-30-03.........................53048
10.2  (c) amended..................................................34376
14.7  Amended......................................................34376
23.12  (a) amended.................................................34376
31.36  (b)(1) revised...............................................3794
    Regulation at 66 FR 3794 eff. date delayed......................9661
31.38  Added........................................................3794
    Regulation at 66 FR 3794 eff. date delayed......................9661
35  Authority citation revised......................................1734
35.001  Revised.....................................................1734
    Regulation at 66 FR 1734 eff. date delayed......................9202
35.100--35.418 (Subpart A)  Revised.................................1734
    Regulation at 66 FR 1734 eff. date delayed......................9202
35.500--35.735 (Subpart B)  Added...................................3795
    Regulation at 66 FR 3795 eff. date delayed......................9661
35.3500--35.3585 (Subpart L)  Regulation at 65 FR 48299 confirmed 
                                                                    2823
35.10000--35.10035 (Subpart Q)  Removed.............................3795
    Regulation at 66 FR 3795 eff. date delayed......................9661

                                  2002

40 CFR
                                                                   67 FR
                                                                    Page
Chapter I
2.100--2.108 (Subpart A)  Revised..................................67307
9.1  Table amended (OMB numbers).........1835, 3406, 6142, 22354, 43546, 
                                                     58996, 59784, 65709
19  Revised........................................................41345
    Regulation at 67 FR 41345 withdrawn............................53743
27.3  (a)(1)(iv) and (b)(1)(ii) revised............................41347
    Regulation at 67 FR 41345 withdrawn............................53743

                                  2003

   (Regulations published from January 1, 2003, through July 1, 2003)

40 CFR
                                                                   68 FR
                                                                    Page
Chapter I
9.1  Table amended (OMB numbers)...........887, 7265, 9780, 37089, 37090

[[Page 782]]

    Regulation at 65 FR 43661 withdrawn............................13614
    Table amended (OMB numbers); interim...........................16710
22.30  (a)(1) amended...............................................2204
46  Revised; interim...............................................16710


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