[Federal Register Volume 64, Number 163 (Tuesday, August 24, 1999)]
[Proposed Rules]
[Pages 46234-46249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20871]



[[Page 46233]]

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Part III





Environmental Protection Agency





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40 CFR Part 35



Technical Assistance Grant Program; Proposed Rule

  Federal Register / Vol. 64, No. 163 / Tuesday, August 24, 1999 / 
Proposed Rules  

[[Page 46234]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[FRL-6419-7]
RIN 2050-AE33


Technical Assistance Grant Program

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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

SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
proposing to streamline the Technical Assistance Grant (TAG) program 
under the Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA). The proposed changes simplify 
application and management procedures, and allow advance payments up to 
$5,000. The intent of these changes is to make grants for technical 
assistance more readily available to local community groups and to 
promote effective public participation in the Superfund cleanup 
process.

DATES: Please submit comments by October 8, 1999.

ADDRESSES: Written comments should be sent to: Lois Gartner, Office of 
Emergency and Remedial Response, 5204-G, U.S. Environmental Protection 
Agency, 401 M Street SW, Washington, D.C. 20460. Inquiries may also be 
submitted via electronic mail (E-mail) to [email protected]. The 
Agency requests that commenters follow the following format: type or 
print comments in ink, and cite, where possible, the paragraphs in this 
proposal to which each comment refers. Electronic comments must be 
submitted as a WP5.1 or WP6.1 file or as an ASCII file avoiding the use 
of special characters. Comments will also be accepted on disks in the 
formats above.

FOR FURTHER INFORMATION CONTACT: Lois Gartner, Office of Emergency and 
Remedial Response, 5204-G, U.S. Environmental Protection Agency, 401 M 
Street SW, Washington, D.C. 20460 (703) 603-8889 or the RCRA/Superfund 
Hotline from 8:30am to 7:30pm, Monday through Friday, toll free at 
(800) 553-7672 or in the Washington area, (703) 412-3323 or TTY (800) 
553-7672.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed 
in the following outline:

I. Introduction
    A. Authority
    B. Background of Rulemaking
II. Explanation of Changes to the Current Regulations
    A. General Changes
    B. Definitions
    C. Eligibility and Responsibility Requirements
    D. Evaluation Criteria
    E. Timing of Award
    F. Ineligible Activities
    G. Eligible Activities
    H. Technical Advisor's Qualifications
    I. Executive Order 12898
    I. Procurement
    J. Sanctions
    K. Method of Payment
    L. Grant Limitations
    M. Waivers
    N. Disputes
    O. Record Retention and Audits
    P. Reports
    Q. Budget Period (Funding Period)
    R. Closing Out Grants
    S. State Administration
III. Existing Grants
IV. Regulatory Analysis
    A. Regulatory Flexibility
    B. Unfunded Mandates Reform Act
    C. National Technology Transfer and Advancement Act
    D. Executive Order 13045
    E. Paperwork Reduction Act
    F. Executive Order 12866
    G. Executive Order 12875
    H. Executive Order 13084
    I. Executive Order 12898

I. Introduction

A. Authority

    EPA issues this notice of proposed rulemaking under the authority 
of section 117(e) of the Comprehensive Environmental, Response, 
Compensation and Liability Act of 1980, as amended 42 U.S.C. 9617(e). 
Section 117(e) authorizes the President to make available Technical 
Assistance Grants of up to $50,000 to groups of individuals which may 
be affected by a release or threatened release at Superfund sites to 
obtain assistance in interpreting and disseminating information related 
to site activities. Section 117(e) requires the President to promulgate 
rules for issuing these grants before processing any grant 
applications. Executive Order 12580 subsequently delegated to EPA the 
authority to implement section 117(e).

B. Background of Rulemaking

    In 1992, EPA promulgated a final rule to govern the award and 
administration of TAGs (57 FR 45311 (Oct. 1, 1992)). The Agency based 
the requirements codified in the final regulation on its early 
experience with the TAG program and comments generated by the Agency's 
interim final rule (IFR) (53 FR 9736 (Mar. 24, 1988)), and amendments 
to interim final rule (54 FR 49848 (Dec. 1, 1989)). The IFR detailed 
the specific requirements for obtaining TAGs and enabled EPA to issue 
grants while it received comments for consideration in development of 
the final rule. Those comments and practical experience led the Agency 
to develop a final rule which streamlined the program's application and 
management procedures reflected in the IFR.
    The Agency's experience with the TAG program in the years since it 
published the final rule has led the Agency to recognize the need to 
further streamline TAG application and management procedures. In 
addition, the Agency has drafted the proposed rule in a more readable 
format to increase accessibility to the program. The Agency publishes 
this NPRM today to solicit comments for the Agency's consideration in 
promulgating a revised final rule for TAGs.

II. Explanation of Changes to the Current Regulations

A. General Changes

    With this proposed rule, EPA is changing the format of the TAG 
regulations by presenting them in a question and answer structure. The 
Agency believes this format will make the regulations easier for 
applicants and recipients to use. As a result of this new format, EPA 
proposes to move and renumber many of the current sections and, in some 
instances, to break up sections to organize the information under more 
precise headings. Additionally, EPA updated references to other 
applicable regulations to reflect the changes made to those regulations 
since the Agency promulgated the current final regulation in October 
1992. Specifically, this subpart changes 40 CFR part 30 citations and 
deletes references to 40 CFR part 33 citations. 40 CFR part 30 is the 
EPA's general regulation for assistance agreements (for example, 
grants). It establishes the regulations by which EPA awards, 
administers and closes out grants and cooperative agreements to non-
governmental entities.

B. Definitions

    Budget period. To be consistent with terms used in the new 40 CFR 
part 30, EPA proposes to change the term budget period to funding 
period. In addition, EPA proposes to modify the definition of funding 
period by eliminating the requirement that funding periods be a maximum 
of three years. This modification would allow for the length of funding 
periods to be tailored to site-specific needs.
    Affiliate, Allocable cost, Allowable cost, Cost analysis, Eligible 
cost, Letter of intent (LOI), National Priorities List (NPL), Outlays, 
Project period

[[Page 46235]]

Reasonable cost, Suspend, and Operation and maintenance. EPA proposes 
to add these definitions to increase reader understanding of terms used 
throughout this proposed rule.
    Advance payment. EPA proposes to add this definition because it 
reflects a new provision not found in the current final rule.

C. Eligibility and Responsibility Requirements

    Under eligibility requirements, EPA proposes to deem organizations 
that are affiliated with national organizations to be ineligible for a 
TAG. The basis for this change is that the TAG program is meant to 
assist communities directly affected by Superfund sites. Therefore, the 
intended recipients of TAGs are local grassroots organizations that 
form out of affected communities. By deeming groups associated with 
national organizations ineligible, EPA intends to exclude any groups 
with agendas that might include national issues and concerns.
    EPA proposes to eliminate the responsibility requirement that 
organizations that were not incorporated specifically for the purpose 
of representing affected individuals at the site demonstrate a 
``substantial'' history of involvement at the site. Such organizations 
would be required to demonstrate a history of involvement at the site, 
but it would not need to be substantial. Some ways that a group might 
demonstrate a history of involvement at the site include: members of 
the group have attended public meetings regarding the site and/or a 
group has held its own meeting(s) focusing on issues surrounding the 
site (and has agenda(s) reflecting such a focus). EPA, however, will 
retain full discretion in making its determination regarding an 
applicant's history of involvement at a site.
    EPA also proposes to modify the responsibility requirements by 
prohibiting TAG recipients from restricting access to their group by 
charging membership fees or by using other means to limit participation 
in a TAG organization. EPA believes TAG groups should be open to all 
interested individuals as long as the individuals are not participating 
in the group as representatives of ineligible entities. (Under both the 
current and proposed rule, if an individual has a significant financial 
involvement with a PRP, EPA may decide not to allow that individual to 
participate in the TAG group even if he or she is not participating in 
the group as a representative of a PRP.) The purpose of the TAG program 
is to promote meaningful public participation in decisions at a 
Superfund site by providing communities the means to obtain independent 
technical assistance in interpreting information about a site. TAG 
recipients that restrict access to their group undermine the very 
purpose of the program.

D. Evaluation Criteria

    EPA proposes several changes to the application evaluation 
criteria. First, EPA proposes to eliminate the distinction between sole 
and multiple applicants because under the current rule and the proposed 
rule, whether there are one applicant or multiple applicants, every 
applicant must meet the same evaluation criteria. Another proposed 
change would eliminate the points for each criterion in the current 
final rule and make all proposed criteria be of equal weight. Under 
both the current and proposed rule, applicants are ranked with respect 
to all evaluation criteria. EPA will select the highest ranking 
applicant of the applicants meeting all the criteria.
    Finally, EPA proposes to eliminate the current requirement that 
applicants demonstrate the presence of an actual or potential health, 
economic or recreational threat posed by the site. Removal of this 
requirement streamlines the application process. The current rule 
requires the demonstration of these actual or potential threats 
because, at the time the final rule was written, EPA thought there 
would be many groups competing for a TAG at one site. By including this 
requirement in the application, EPA sought to make certain the group 
receiving the TAG was the one ``most directly affected by a site.'' 
However, the Agency's experience since the final rule was written is 
that there is usually only one applicant per site. Because of this 
trend and because the very basis for sites being proposed or made final 
on the National Priorities List (NPL) is that the Agency has determined 
that a potential or actual human health and/or environmental threat 
exists, asking applicants to repeat what the Agency has already 
determined is burdensome and redundant. While actual or potential 
economic or recreational threats are not part of the basis for NPL 
proposal or listing, the Agency does not believe it is necessary to ask 
applicants to demonstrate the presence of these threats. The presence 
of potential or actual human health and/or environmental threats is 
sufficient. Finally, by making groups affiliated with national 
organizations ineligible, EPA believes it is making certain that only 
local organizations made up of affected individuals surrounding a 
Superfund site will be eligible for TAGs. As with the current rule, 
this proposed rule considers ``affected'' to mean ``subject to an 
actual or potential, health, economic or environmental threat.''

E. Timing of Award

    The proposed rule clarifies that TAGs may be awarded throughout the 
response action at the site, including the operation and maintenance 
phase. By including this language, EPA hopes to emphasize to 
communities that TAG funds are available throughout the Superfund 
process.

F. Ineligible Activities

    EPA proposes to clarify, without modifying, what is meant by 
``political activity and lobbying'' and what is meant by ``activities 
inconsistent with the cost principles stated in Office of Management 
and Budget (OMB) Circular A-122'' by adding examples for each category. 
TAG recipients frequently require some assistance from EPA in 
determining whether the federally funded activities they engage in 
constitute lobbying or are otherwise unallowable under OMB Circular A-
122. EPA has decided to include examples of unallowable activities in 
the TAG regulations to assist recipients in identifying the types of 
activities that cannot be federally funded rather than merely referring 
recipients to the OMB circular. EPA, however, does not intend to change 
in any way the lobbying restrictions or any other provision of OMB 
Circular A-122.

G. Eligible Activities

    EPA has made only editorial changes in the proposed rule regarding 
eligible activities. First, the proposed rule explicitly states that 
procuring the services of a grant administrator is an eligible 
expenditure. While the cost of a grant administrator has always been 
considered allowable by EPA as a reasonable and necessary expenditure 
of a TAG grant, the final TAG rule did not specifically identify it as 
an eligible expenditure. Second, in the proposed rule the provision 
allowing the use of TAG funds for technical advisor health and safety 
training is included in the overall discussion of eligible expenses 
rather than in the section on Ineligible Activities.

H. Technical Advisor's Qualifications

    EPA proposes several changes to the provision regarding the 
technical advisor qualifications. One proposed modification is to 
detail the type of experience a technical advisor should

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have. This experience should include communicating problems and issues 
associated with hazardous or toxic waste, redevelopment, relocation and 
health issues to the public. A second proposed modification is to 
eliminate the other requirements currently contained in Sec. 35.4065(b) 
that call for a technical advisor to: have experience in making 
technical presentations and working with affected individual or 
community groups or other groups of individuals, and demonstrated 
writing skills. EPA believes these requirements are unnecessary because 
they are captured in the proposed paragraph Sec. 35.4190(c). Finally, 
EPA proposes to clarify that the requirements regarding a technical 
advisor's qualifications do not preclude the hiring of technical 
advisors with expertise in the fields of relocation, redevelopment and 
health issues.
    Use of TAG funds to hire relocation, redevelopment and health 
experts are consistent with the statutory intent of the program which 
is to ``obtain technical assistance in interpreting information with 
regard to the nature of the hazard, remedial investigation and 
feasibility study, record of decision, remedial design, selection and 
construction of remedial action, operation and maintenance, or removal 
action'' at Superfund facilities. When relocation is seriously being 
considered as a remedy, residents need to understand a multitude of 
issues associated with the relocation process as prescribed in the 
Uniform Relocation Assistance and Real Property Acquisitions Policy Act 
of 1970 as amended, 42 U.S.C. 460 et seq. (otherwise referred to as the 
Uniform Relocation Act or URA). Similarly, the consideration of future 
land use and its relationship to Superfund site reuse/redevelopment is 
now an inherent component to the Superfund process. Community plans and 
preferences regarding future land use(s) are an important part of the 
successful return of Superfund sites to beneficial use. Issues 
associated with the health effects of toxic waste are also a common 
concern held by communities. While health advisors are not permitted to 
generate any new health data through biomedical testing (for example, 
blood or urine testing), clinical evaluations, health studies, 
surveillance, registries and/or public health interventions, they can 
interpret the health aspects associated with information found in site-
related documents.
    While EPA believes the use of TAG funds for technical advisors with 
expertise in relocation issues is an appropriate use of TAG funds, the 
Agency also believes access to such technical advisors must be limited. 
Because EPA's preference is to restore property so people can live in 
their homes, EPA believes relocation technical advisors can only be 
procured by communities when the Agency is seriously considering 
permanent relocation (for example, relocation is one of several 
remedial alternatives being considered in a feasibility study).
    For technical advisors with expertise in relocation issues, EPA 
believes it is important that such experts have demonstrated knowledge, 
training and experience in relocations, including knowledge of the URA. 
Furthermore, EPA believes relocation technical advisors should have 
experience working with developers, brokers and lenders and 
demonstrated knowledge of appraisals, title searches, and State and 
local tax laws. All of these areas of expertise are essential if a 
technical advisor is going to successfully interpret information 
regarding relocation as a remedy. TAG funds, however, should not be 
used to pay for appraisals, title searches, real estate agents' or 
brokers' services.
    For redevelopment technical advisors, EPA believes it is important 
for such advisors to have knowledge, training, and experience in land 
use planning with an emphasis on economic development, environmental 
planning or related fields as appropriate. These qualifications are 
necessary to ensure redevelopment assistance is meaningful to 
communities.
    Finally, health advisors must have received their public health or 
related training at accredited schools of medicine, public health, or 
accredited academic institutions of other related disciplines and be 
associated with such institutions. These requirements will ensure 
public health advisors serving communities are appropriately trained 
and qualified to assist communities on public health issues. Health 
advisors should possess demonstrated knowledge, training and experience 
in public health issues as they relate to toxic and hazardous waste.

I. Procurement

    The regulations governing procurement under grants at 40 CFR part 
33 were repealed since the publication of the last TAG rule. Therefore, 
references to 40 CFR part 33 have been deleted and replaced by the 
appropriate provisions in 40 CFR part 30. Additionally, paraphrased 
versions of the positive efforts required by 40 CFR part 30 with 
respect to hiring small business enterprises (SBEs), minority business 
enterprises (MBEs), and women-owned business enterprises (WBEs) have 
been included. The purpose in including the positive efforts is to 
heighten the awareness of recipients that they need to make such 
efforts to contract with SBEs, MBEs and WBEs.
    In 1997, in order to ensure consistency with the Supreme Court 
decision in Adarand v. Pena, 115 S. Ct. 2097 (1995), EPA issued revised 
Guidance for the Agency's MBE/WBE program (see 62 FR 45645 (Aug. 28, 
1997)). This Guidance may be accessed on the Internet at http://
www.epa.gov/osdbu. Under this Guidance, ``fair share'' objectives are 
negotiated with recipients of EPA financial assistance based on the 
availability of qualified MBEs and WBEs in the relevant procurement 
market. In the case of the TAG program, for example, the relevant 
markets would be supplies, services and equipment. Recipients are not 
required to negotiate their own MBE/WBE goals (unless they wish to do 
so). Instead, they may accept the goals of the State Agency which would 
have jurisdiction over Superfund activities in the relevant state. 
State Agency goals may be found on the Internet at http://
Yosemite.epa.gov/ogd/mbe-wbe.nsf and other information on the EPA 
Grants page at http://www.epa.gov/ogd/grants.
    EPA is in the process of initiating a rulemaking for its MBE/WBE 
program, in which the public will have an opportunity for notice and 
comment. To the extent that EPA's final MBE/WBE rulemaking differs from 
the information found here, the MBE/WBE rulemaking will control.

J. Sanctions

    This rule includes a detailed list of the sanctions EPA may impose 
when grant recipients fail to comply with a term of a grant agreement. 
These sanctions are the same as those set forth in 40 CFR 30.62 and 
30.14 and are included in the TAG rule only as a convenience to the 
reader. EPA does not intend to change the rights or responsibilities of 
either the recipient or EPA under the provisions for enforcement or 
special award conditions in 40 CFR part 30.

K. Method of Payment

    EPA proposes to provide TAG recipients, under certain 
circumstances, the opportunity to receive advance payments. EPA 
proposes this change because it recognizes that some grant recipients 
are newly formed entities lacking resources to undertake even basic 
organizational start up activities. Advance payments would provide such 
groups with the necessary resources to

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establish their organization and implement their grant work plan.
    While EPA supports advancing funds to TAG recipients for start up 
purposes, EPA also believes it is important to set appropriate limits 
on such advances. Therefore, EPA proposes several limits on cash 
advances. First, only those recipients who lack the resources to incur 
expenses in advance of reimbursement would be eligible for cash 
advances. Second, EPA proposes a $5,000 cap on the amount of money it 
would advance to a recipient. EPA believes this amount is sufficient to 
cover reasonable and expected start up expenses for a group. Third, the 
types of expenditures for which recipients could seek advance payments 
will be limited to expenditures for opening a bank account, supplies 
and postage, advance on rent or lease for office space, advertising 
related to procurement, and rental of other equipment. EPA believes 
expenditures associated with contracts for technical advisors and other 
contractors are not appropriate and will not be allowed for advance 
payments because such expenditures are not necessary to a group's start 
up functions.
    In addition, EPA proposes to require recipients to request in 
writing the specific activities and/or goods/services for which the 
group needs the funds. This requirement will ensure EPA has an 
opportunity to review and authorize the specific use(s) of any advance 
payments. Finally, advance payments will only be provided on a one-time 
basis; after an initial advance EPA will reimburse recipients for 
actual expenses they incur.

L. Grant Limitations

    With this rule, EPA proposes to set forth its current 
interpretation of section 117(e) of CERCLA which provides that ``Not 
more than one grant may be made under this subsection with respect to a 
single facility, at all stages of remedial action'' (CERCLA 117(e)). In 
the administration of this program, EPA has interpreted this provision 
to mean that there can be only one TAG recipient at a site at any one 
time during the Superfund process. This interpretation means that if a 
TAG to one recipient is terminated, EPA can make a new grant to a new 
recipient. Accordingly, while there can be only one TAG at a time there 
can be more than one recipient of a TAG at a single facility. 
Occasionally, a grant recipient decides not to complete the work for 
which it received a $50,000 TAG, or a TAG recipient, although eligible 
to receive an additional $50,000 as a renewal of its original grant, 
elects not to do so and decides to end its participation at the site.
    If, in instances where a TAG is terminated, EPA were to interpret 
section 117(e) to preclude another community group from receiving a TAG 
for the site involved, then the affected community of that site would 
lose the benefit of technical assistance to promote public 
participation in all stages of the response action as a result of the 
original grant recipient's actions. EPA does not believe Congress 
intended such a punitive result, particularly since it would undermine 
the purpose of section 117 of CERCLA--to promote public participation 
at Superfund sites. Rather, EPA believes that section 117(e) is only 
intended to limit to one the number of TAG recipients at any given time 
at a single site.
    Therefore, under Sec. 35.4040 of the proposed rule, EPA will 
explicitly allow changes in TAG recipients if the original TAG is 
terminated. Under Sec. 35.4060, a subsequent recipient can only be 
funded for the amount left by the first recipient of the grant. In the 
case of a site with characteristics indicating additional funds are 
necessary due to the nature or the volume of site-related information, 
the new recipient can receive the amount for which the original 
recipient was eligible. In either case, the second recipient is not 
responsible for actions taken by the first recipient, nor is the second 
recipient responsible for how the first recipient expended the funds it 
received from EPA.
    Finally, EPA proposes to eliminate the 20 percent limit on a TAG 
recipient's administrative expenses in order to relieve recipients of 
the obligation to differentiate between programmatic and administrative 
costs for purposes of the TAG regulations. This elimination will reduce 
the information collection burden on TAG recipients. As always, under 
OMB Circular A-122, administrative costs will only be allowable costs 
of the TAG to the extent they are reasonable and necessary.
    Although it proposes to ease this administrative expense cap, EPA 
believes that continued scrutiny of all grant costs continues to be 
necessary, including oversight of a recipient's administrative 
expenses. EPA believes that the enforcement provisions of Sec. 35.4250 
(``Under what circumstances would EPA terminate our TAG?'') in the 
proposed regulations provide EPA the opportunity to ensure the 
identification of abuses and to make certain that recipients expend 
Federal funds in accordance with the mission of the TAG program. This 
proposed rule would give EPA and grant recipients the flexibility to 
negotiate grants without having unnecessary limitations on 
administrative expenses not required by statute.

M. Waivers

    CERCLA section 117(e) provides that technical assistance grants may 
not exceed $50,000 but this limit can be waived when necessary to carry 
out the purposes of CERCLA section 117. The current TAG rule provides 
for a waiver from the $50,000 limit if applicants are affected by 
multiple sites or ``especially complex'' sites. The ``especially 
complex'' standard is vague and difficult to apply; eliminating it will 
enlarge the eligible universe of TAG recipients who would benefit from 
the waiver provision when appropriate. Therefore, under the proposed 
rule, a waiver will be provided if site characteristics indicate that 
additional funds are necessary as determined by the presence of any 
three of nine predetermined criteria. The Agency believes these 
criteria are the standards by which the Agency can best determine 
whether a waiver of the $50,000 limit on the amount of the award is 
necessary to carry out the purposes of the TAG program.
    EPA proposes two changes to the section on waivers from this 
matching share requirement. First, the proposed rule will eliminate the 
requirement that a group demonstrate an ``unusual'' financial hardship. 
Instead, a group will be eligible for a waiver if it demonstrates that 
providing the match would cause financial hardship. EPA proposes this 
change because it believes that ordinary financial hardship is 
sufficient to justify a waiver. Moreover, this change is consistent 
with the statue which requires only that grant recipients demonstrate 
financial need for EPA to be able to waive the matching share 
requirement.
    Second, this rule will eliminate the requirement that an applicant 
for a waiver to the matching share requirement show that it has made a 
good faith effort at raising the match, including in-kind services, and 
has failed. The good faith requirement to raise a match is not required 
by statute and EPA believes eliminating it will make TAGs more 
available to financially disadvantaged groups. Furthermore, EPA 
believes, based on its experience in implementation of the TAG program, 
that most applicants will continue to provide in-kind services, whether 
or not such services are required to obtain the waiver.

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N. Disputes

    EPA proposes to require TAG disputants to exhaust their 
administrative remedies before they may obtain judicial review of an 
Agency action. Currently, disputants are given the opportunity to seek 
further administrative review of the disputes decision official's 
decision and the Regional Administrator's decision, but disputants are 
not required by statute or regulation to seek such review before going 
to court. When the current TAG rule was finalized, generally courts 
would have imposed the requirement that disputants seek the highest 
level of administrative review permitted by the Agency providing 
judicial review of the dispute. Subsequently, the Supreme Court held in 
Darby v. Cisneros that the Administrative Procedure Act ``explicitly 
requires exhaustion of all intra-agency appeals mandated either by 
statute or by agency rule (and therefore,) it would be inconsistent 
with the plain language of (the APA) to require litigants to exhaust 
optional appeals as well.'' 509 U.S. 137, 147 (1993).
    EPA has decided to require disputants to exhaust their 
administrative remedies before seeking judicial review so as to promote 
the resolution of TAG grant disputes in a non-adversarial manner at the 
Agency level and to assure consistency in the application of the TAG 
regulations across regions. Specifically, EPA will require disputants 
to seek review of the dispute decision official's determination by the 
Regional Administrator and review by the Assistant Administrator of the 
Office of Solid Waste and Emergency Response before seeking judicial 
review of the dispute.

O. Record Retention and Audits

    Substantively, EPA proposes to eliminate the record retention 
requirement for those TAG recipients who elect to have EPA preserve 
their financial records. This change reflects a recommendation provided 
by the General Accounting Office (GAO). However, those recipients who 
do not send their financial records to EPA would still be required to 
keep them, as at present. In addition, EPA proposes to remove the 
reference to OMB Circular A-133, Audits of Institutions of Higher 
Education, which requires recipients who spend more than $300,000 in 
one fiscal year to undertake an audit of their finances. EPA proposes 
removing this reference because it is highly unlikely that TAG 
recipients would meet this threshold. Finally, EPA proposes to include 
language informing recipients they must comply with OMB Circular A-122, 
Cost Principles for Non-Profit Organizations. This requirement is not 
new to the TAG program, but previously it was not explicitly included 
in this subpart.

P. Reports

    EPA proposes to restructure the reporting requirements by putting 
the information in a chart format to make it easier for recipients to 
understand. In addition, EPA proposes to add reporting requirements 
necessitated by the inclusion of advance payments. EPA also proposes to 
add information about the reporting requirements regarding positive 
efforts the recipient has made to procure from small business 
enterprises, minority-owned business enterprises, and women-owned 
business enterprises. This requirement is not new; EPA merely proposes 
to identify it in the report requirements section of the rule so that 
applicants and recipients are aware of it.
    Substantively, EPA proposes to eliminate the requirement that 
recipients submit draft final reports. EPA believes only a final report 
is necessary because Federal review of draft reports contributes 
minimally to the administration of the program. This proposed reporting 
change, like the previous two, eases the information collection burden 
for TAG recipients.

Q. Budget Period (Funding Period)

    EPA proposes replacing the term ``budget period'' with the term 
``funding period.'' This change in terms makes the TAG rule consistent 
with those used in 40 CFR part 30. Substantively, EPA proposes 
eliminating the current three-year funding period and replacing it with 
a period to be negotiated by the applicant and EPA. The mutually agreed 
upon period would be documented in the award agreement. EPA makes this 
proposal because it believes TAG recipients should be allowed 
flexibility when formulating their budget to synchronize the period of 
time during which recipients anticipate having a technical advisor 
involved with the schedule of work at a site.

R. Closing Out Grants

    Although 40 CFR 30.70 through 30.73 will continue to govern the 
close out process and procedures, the proposed regulation includes a 
summary of those regulations in order to help recipients understand the 
grant close out process and procedures for TAGs. As with all other 
instances where EPA summarizes provisions found in other regulations, 
EPA includes the summary of the grant close out process and procedures 
only as a convenience to the reader. EPA does not intend to change the 
rights or responsibilities of either the recipient or EPA under the 
provisions for closing out grants in 40 CFR part 30.

S. State Administration

    EPA proposes to move the regulations governing the administration 
of the TAG program by States to 40 CFR part 35, subpart O which governs 
the award of cooperative agreements to States and Indian tribes under 
section 104(d) of CERCLA. EPA is in the process of revising subpart O 
at this time. Therefore, this proposed regulation does not include any 
provisions regarding the State administration of TAGs.

III. Existing Grants

    TAG recipients receiving a TAG under previous regulations may 
request having their grant administered under this regulation once it 
is final. Groups wishing to do so must seek amendments to their grant 
from the Award Official. However, any funds spent prior to the 
finalization of this rule are subject to the previous regulation. 
Amendments to current grants will apply only to future work.

IV. Regulatory Analysis

A. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This proposed rule would not have a significant impact 
on a substantial number of small entities because this regulation 
imposes no new requirements, but rather streamlines and simplifies 
current requirements. Therefore, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities.

B. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local, and tribal governments, in 
the aggregate,

[[Page 46239]]

or by the private sector, of $100 million or more in any one year. This 
regulation contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The UMRA excludes from the 
definition of ``Federal intergovernmental mandate'' duties that arise 
from conditions of federal assistance.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. EPA has determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments.

C. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and 
Advancement Act (NTTAA), EPA is required to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impracticable. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standards 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used, the Act requires EPA to provide Congress, 
through the Office of Management and Budget, an explanation of the 
reasons for not using such standards.
    EPA does not believe that this proposed rule addresses any 
technical standards subject to NTTAA. Commenters who disagree with this 
conclusion should indicate how the proposed rule is subject to the Act 
and identify any potentially applicable voluntary consensus standards.

D. Executive Order 13045

    Executive Order 13045 applies to any rule that is determined to be: 
(1) ``Economically significant'' as defined under Executive Order 
12866; and (2) Concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, EPA must evaluate the 
environmental health or safety effects of the planned rule on children 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Executive Order has 
the potential to influence the regulation. This proposed rule is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

E. Paperwork Reduction Act

    The Office of Management and Budget has approved the information 
collection requirements contained in this rule under the provisions of 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned 
OMB control number 2030-0020. This rule does not contain any collection 
of information requirements beyond those already approved. Since this 
action imposes no new or additional information collection, reporting 
or record keeping requirements subject to the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq., no information request will be submitted to the 
Office of Management and Budget for review.

F. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) a 
significant regulatory action is subject to OMB review and the 
requirements of the Executive Order. The Executive Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    OMB has determined this rule is not a ``significant regulatory 
action'' under the terms of Executive Order 12866. As such, this action 
was not submitted to the Office of Management and Budget (OMB) for 
review.

G. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, any written communications 
from the governments, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 12875 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

H. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    This proposed rule does not significantly or uniquely affect the 
communities of Indian Tribal

[[Page 46240]]

governments nor does it impose substantial direct compliance costs on 
those communities. Accordingly, the requirements of section 3(b) of 
Executive Order 13084 do not apply.

I. Executive Order 12898

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' as well as through EPA's April 1995, ``Environmental 
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda 
Report,'' and National Environmental Justice Advisory Council, EPA has 
undertaken to incorporate environmental justice into its policies and 
programs. EPA is committed to addressing environmental justice 
concerns, and is assuming a leadership role in environmental justice 
initiatives to enhance environmental quality for all residents of the 
United States. The Agency's goals are to ensure that no segment of the 
population, regardless of race, color, national origin, or income, 
bears disproportionately high and adverse human health and 
environmental effects as a result of EPA's policies, programs, and 
activities, and all people live in clean and sustainable communities.
    No action from the proposed rule will have a disproportionately 
high and adverse human health and environmental effects on any segment 
of the population. In addition, the proposed rule does not impose 
substantial direct compliance costs on those communities. Accordingly, 
the requirements of the Executive Order do not apply.

List of Subjects in 40 CFR Part 35

    Environmental protection, Air pollution control, Coastal zone, 
Grant programs--environmental protection, Grant programs--Indians, 
Hazardous waste, Indians, Intergovernmental relations, Pesticides and 
pests, Reporting and recordkeeping requirements, Superfund, Waste 
treatment and disposal, Water pollution control, Water supply.

    Dated: August 6, 1999.
Carol M. Browner,
Administrator.
    Accordingly, as set forth in the preamble, the Environmental 
Protection Agency proposes to amend 40 CFR part 35 as follows:

PART 35--STATE AND LOCAL ASSISTANCE

    1. The authority citation for part 35 is revised to read as 
follows:

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

    2. Subpart M is revised to read as follows:

Subpart M--Grants for Technical Assistance

Sec.
35.4000  Authority.

General

35.4005  What is a Technical Assistance Grant?
35.4010  What does this subpart do?
35.4011  What other regulations apply to the award of TAGs?
35.4012  If there appears to be a difference between the 
requirements in Part 30 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  How much time do my group or other interested groups have 
to submit a TAG application to EPA?
35.4125  Does the TAG application process affect the schedule for 
work at my site?
35.4130  What does my group do next?
35.4135  What else does my group need to do?
35.4140  What must be included in my group's budget?
35.4145  What period of time should my group's budget cover?
35.4150  What must be included in my group's work plan?
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?
35.4165  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?

[[Page 46241]]

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?
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)?

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.

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; and
    (c) Visiting the site vicinity periodically during cleanup, if 
possible, to observe progress and provide technical updates to your 
group.


Sec. 35.4010  What does this subpart do?

    This subpart establishes the regulations for TAGs awarded by EPA.


Sec. 35.4011  What other regulations apply to the award of TAGs?

    EPA's general grant regulations for nonprofit organizations at 40 
CFR part 30 also apply to TAGs.


Sec. 35.4012  If there appears to be a difference between the 
requirements in 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 in Sec. 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.


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 that 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

[[Page 46242]]

    (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;
    (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; and
    (c) Not restrict access to your group by charging membership fees 
or by using other means to limit participation in your 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. For 
example, if your group receives $50,000 in Federal funds, the matching 
share would be $12,500, which is 20 percent of the total project costs 
of $62,500 (meaning, $50,000 plus $12,500).
    (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:
    (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 the initial award (for
 $50,000 award.                           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?

    The EPA regional office award official for your grant may waive 
your group's $50,000 limit and provide up to $100,000 per site under 
the following circumstances:
    (a) Your group is geographically close to more than one eligible 
site (for example, two or more sites  x  $50,000 = grant of $100,000) 
and wishes to receive funding for technical assistance to address 
multiple eligible sites; or
    (b) 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 nine 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) A legislative or regulatory change results in new site 
information after EPA awards the TAG;
    (vii) EPA expects a cleanup lasting more than eight years from the 
beginning of the RI/FS through construction completion;
    (viii) Significant public concern exists, where large groups of 
people in the community require many meetings, copies, etc.; and
    (ix) Any other factor that, in EPA's judgment, indicates that the 
site is unusually complex.

[[Page 46243]]

What TAG 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 do 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;
    (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 if EPA determines that your group lacks the resources to 
incur expenditures for necessary start up activities in advance of (or 
prior to) reimbursement by us.


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 an LOI. (The 
addresses of EPA's regional offices' TAG Coordinators are listed in 
Sec. 35.4275.)

[[Page 46244]]

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:

------------------------------------------------------------------------
           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.


Sec. 35.4120  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 60 days from the date the public notice appears in your 
local newspaper announcing that EPA has received an LOI. 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. 35.4125  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. 35.4130  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. 35.4135  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. 35.4140  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. 35.4145  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.''


Sec. 35.4150  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. 35.4155  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.

[[Page 46245]]

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. 35.4165  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.

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           contracted with a   no contracts have
 Business 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.
------------------------------------------------------------------------

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 (relocation technical advisors may only be hired under 
certain circumstances, see Sec. 35.4200);
    (2) Academic training in a relevant discipline (for example, 
biochemistry, toxicology, public health, environmental sciences, 
engineering, environmental law and planning); and

[[Page 46246]]

    (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) and must be 
associated with such institutions.
    (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 people:
    (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, anyone 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) Anyone 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;
    (b) Must award only to responsible contractors that possess the 
ability to perform successfully under the terms and conditions of a 
proposed contract; and
    (c) Can only hire a relocation technical advisor when EPA is 
seriously considering permanent relocation as part of the site remedy 
(for example, permanent relocation is one of several remedial 
alternatives being considered in the feasibility study).


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
                                         (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).
------------------------------------------------------------------------


[[Page 46247]]

    (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 related to any 
proposed or pending litigation, with such parties;
    (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 above, 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.


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));
    (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;
    (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.

[[Page 46248]]

    (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.

    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;
    (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 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.
    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 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.
    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

[[Page 46249]]

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)?

    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, 726 
Minnesota Avenue, 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, 401 M Street 
SW, Washington, DC 20460.

[FR Doc. 99-20871 Filed 8-23-99; 8:45 am]
BILLING CODE 6560-50-P