[Federal Register Volume 65, Number 191 (Monday, October 2, 2000)]
[Rules and Regulations]
[Pages 58850-58868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24047]



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Part II





Environmental Protection Agency





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40 CFR Part 35



Technical Assistance Grant Program; Final Rule

  Federal Register / Vol. 65, No. 191 / Monday, October 2, 2000 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[FRL-6872-1]
RIN 2050-AE33


Technical Assistance Grant Program

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
publishing today the final rule for the Technical Assistance Grant 
(TAG) Program under the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (CERCLA). The Agency has 
developed a final rule designed to further streamline the TAG program 
by simplifying application and management procedures, and allowing 
advance payments up to $5,000 to new recipients. The intent of this 
final rule 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: This final rule is effective October 2, 2000.

ADDRESSES: The official record for this rulemaking is maintained at the 
Superfund Docket and Document Center, located in Crystal Gateway #1, 
1st Floor at the U.S. Environmental Protection Agency, 1235 Jefferson 
Davis Highway, Arlington, VA, 22202, telephone number 1-703-603-9232. 
The record is available for inspection, by appointment only, between 
the hours of 9:00 a.m. to 4:00 p.m. EST, Monday through Friday, 
excluding legal holidays. As provided in 40 CFR part 2, a reasonable 
fee may be charged for copying services.

FOR FURTHER INFORMATION CONTACT: Lois Gartner, Office of Emergency and 
Remedial Response, 5204-G, U.S. Environmental Protection Agency, Ariel 
Rios Building, 1200 Pennsylvania Avenue, NW, Washington, D.C. 20460 
(703) 603-8889 or the RCRA/Superfund Hotline from 9:00 a.m. to 6:00 
p.m., Monday through Friday, toll free at 1-800-553-7672 or in the 
Washington area, 703-412-3323 or TTD 703-412-3323.

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 Proposed Rule
    A. General Changes
    B. What is a Technical Assistance Grant? (Sec. 35.4005)
    C. Is my community group eligible for a TAG? (Sec. 35.4020)
    D. Is there any way my group can get a TAG if it is currently 
ineligible? (Sec. 35.4025)
    E. Can I be a part of a TAG group if I belong to an ineligible 
entity? (Sec. 35.4030)
    F. How many groups can receive a TAG at one Superfund site? 
(Sec. 35.4040)
    G. What requirements must my group meet as a TAG recipient? 
(Sec. 35.4045)
    H. Must my group contribute toward the cost of a TAG? 
(Sec. 35.4050)
    I. How can my group get more than $50,000? (Sec. 35.4065)
    J. How can my group spend TAG money? (Sec. 35.4070)
    K. Are there things my group can't spend TAG money for? 
(Sec. 35.4075)
    L. Can my group get an ``advance payment'' to help us get 
started? (Sec. 35.4085)
    M. How much time do my group or other interested groups have to 
submit a TAG application to EPA? (Sec. 35.4120)
    N. How does my group identify a qualified technical advisor? 
(Sec. 35.4190)
    O. Are there certain people my group cannot select to be our 
technical advisor, grant administrator, or other contractor under 
the grant? (Sec. 35.4195)
    P. What restrictions apply to contractors my group procures for 
our TAG? (Sec. 35.4200)
    Q. How does my group procure a technical advisor or any other 
contractor? (Sec. 35.4205)
    R. How does my group ensure a prospective contractor does not 
have a conflict of interest? (Sec. 35.4220)
    S. Definitions (Sec. 35.4270)
    T. Existing grants
    U. State administration
III. Regulatory Analysis
    A. Regulatory Flexibility Act (RFA as amended by the Small 
Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et seq)
    B. Unfunded Mandates Reform Act
    C. National Technology Transfer and Advancement Act
    D. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    E. Paperwork Reduction Act
    F. Executive Order 12866
    G. Executive Order 13132
    H. Executive Order 13084
    I. Executive Order 12898
    J. Congressional Review Act

I. Introduction

A. Authority

    EPA issues this final rule 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 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 the 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 that 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 1992 final rule has led the Agency to recognize the need 
to further streamline TAG application and management procedures. In 
addition, the Agency also recognized the need to rewrite the TAG 
regulations in a more readable format to increase accessibility to the 
program. In August 1999, the Agency published a notice of proposed 
rulemaking (NPRM) (64 FR 46234 (Aug. 24, 1999)) which set forth the 
Agency's proposal on how to reduce barriers to TAG participation. The 
Agency carefully reviewed and gave serious consideration to the 
comments it received in response to the NPRM. As a result of that 
review and consideration, the final rule published here today reflects, 
to the greatest extent possible, the accommodation of many of the 
comments offered.

II. Explanation of Changes to the Proposed Rule

A. General Changes

    One commenter suggested that EPA include in the final TAG rule a 
more detailed explanation of the requirements at 40 CFR part 30, in 
particular how those requirements relate to the TAG rule at 40 CFR part 
35, subpart M. The

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regulations in both 40 CFR part 30 and part 35, subpart M apply to 
TAGs. Part 30 establishes uniform administrative requirements for 
Federal grants and cooperative agreements awarded to institutions of 
higher education, hospitals, and other nonprofit organizations. Because 
TAGs are awarded to nonprofit organizations, 40 CFR part 30 applies to 
all TAGs. Subpart M of 40 CFR part 35 (i.e., the TAG rule) establishes 
administrative and substantive requirements that apply only to TAGs. 
EPA included references to and summaries of several of the 40 CFR part 
30 requirements in the proposed TAG rule to give recipients a general 
idea about those regulations.
    For example, in Sec. 35.4020, ``Is my community group eligible for 
a TAG?'', we have provided a general description of the management 
structure 40 CFR part 30 requires for groups to be eligible for a TAG. 
However, the summaries in the TAG rule of 40 CFR part 30 provisions are 
not intended to be substitutes for 40 CFR part 30. While EPA has 
established some of the administrative requirements in 40 CFR part 30, 
the specific sections of 40 CFR part 30 that do not apply to TAGs are 
listed in Sec. 35.4012. Except for those provisions listed in 
Sec. 35.4012, the 40 CFR part 30 provisions govern all TAG grants. If 
there is a conflict between a 40 CFR part 30 provision and a summary of 
that same provision in the TAG rule, the 40 CFR part 30 provision 
applies. In order to clarify the relationship between 40 CFR part 30 
and part 35, EPA has revised Secs. 35.4010 and 35.4011 as follows:

Section 35.4010  What Does This Subpart Do?

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

Section 35.4011  Do the General Grant Regulations for Nonprofit 
Organizations Apply to TAGs?

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

B. What Is a Technical Assistance Grant? (Sec. 35.4005)

    One commenter suggested we replace the word ``procure'' with 
``hire'' when describing the process for communities securing the 
services of a contractor. The final rule continues to use ``procure'' 
because EPA wants to ensure readers understand there is a competitive 
procurement process that must be followed when TAG recipients seek a 
contractor. Moreover, the word ``hire'' implies that recipients hire a 
technical advisor as an employee rather than procuring the services of 
a technical advisor as a contractor.
    Another commenter expressed concern that this section does not 
include any language about using TAG funds for redevelopment purposes. 
The exclusion of redevelopment as an example of how a technical advisor 
can assist a group was not intended to imply that technical advisors 
cannot interpret information regarding redevelopment of the site. 
Section 35.4005 (``What is a Technical Assistance Grant'') provides in 
part:
    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.
    EPA does not believe any change is needed to Sec. 35.4005 to 
clarify that a technical advisor may assist a group by interpreting 
information related to redevelopment. Section 35.4005 expressly states 
that the list of examples of how a Technical Advisor can assist a group 
is not exhaustive. Furthermore, Sec. 35.4070 provides that technical 
advisors may help a TAG group understand ``the various stages of health 
and environmental investigations and activities'' at a site--a phrase 
which clearly encompasses redevelopment issues.

C. Is My Community Group Eligible for a TAG? (Sec. 35.4020)

    Several commenters expressed concern about deeming ineligible those 
groups that receive money or services from a PRP. These commenters 
suggested communities can benefit from such assistance and that it also 
is a way to hold PRPs ``accountable.'' While we do not doubt that some 
forms of PRP assistance can be beneficial to TAG recipients, the final 
rule continues to consider organizations that receive assistance 
(services, supplies or money) from PRPs to be ineligible for TAG 
funding. Our continued prohibition on PRP assistance exists because we 
do not believe it is possible to determine when such assistance is 
given conditionally and, therefore, a group which accepts such 
assistance may appear to have a conflict of interest undermining its 
purpose of providing independent technical advice to the affected 
community.

D. Is There Any Aay My Group Can Get a TAG if It Is Currently 
Ineligible? (Sec. 35.4025)

    Some commenters expressed support for banning a relationship 
between a TAG group and national organizations while others argued 
national organizations offer important benefits to local groups. EPA 
found the arguments in favor of allowing some kind of relationship 
between prospective TAG recipients and organizations focused on 
national issues to be compelling. A central theme to those arguments 
was that national organizations provide a valuable mentoring benefit to 
local grassroots organizations like TAG groups.
    While we support the concept of some relationship between TAG 
recipients and national organizations, we also believe the regulatory 
language in the proposed rule allows for such a relationship. Rather 
than alter the relevant language in the proposed rule, we believe we 
need to better clarify what the term ``affiliated'' means. In the 
context of this regulation, prospective TAG groups that are 
``affiliated'' with a national organization are not eligible for a TAG. 
The regulation specifically defines ``affiliated'' to mean ``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.'' Thus, for example, a 
prospective TAG organization that shares any kind of decisionmaking 
authority about its organizational affairs with any other organization 
would not be eligible for a TAG. This independence extends to all 
aspects of the TAG organization including fiduciary decisions--all 
financial decisions must rest entirely with the prospective TAG 
organization. Therefore, relationships can exist between TAG 
organizations and national organizations as long as those relationships 
do not in anyway impinge on the TAG group's independent decisionmaking 
authority.
    To ensure further clarification of the meaning of ``affiliated'' as 
it appears in Sec. 35.4270, ``Definitions,'' we added a parenthetical 
statement, ``(e.g., centralized decisionmaking and

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control),'' after ``interlocking management or ownership.''

E. Can I Be Part of a TAG Group If I Belong to an Ineligible Entity? 
(Sec. 35.4030)

    A comment related to the eligibility criteria asked for 
clarification on what this section means when it says EPA may not allow 
an individual to participate in a TAG organization if EPA determines an 
individual has a ``significant financial involvement in a PRP.'' The 
commenter specifically cited a scenario in which individuals wishing to 
participate in a TAG organization are employees of the potentially 
responsible party (PRP) at a site and are homeowners in the town in 
which the site is located.
    The intent of this provision, which is not new to the TAG 
regulations, is not to exclude employees of a PRP from participating in 
a TAG group. Rather, the intent is to give EPA the potential right to 
exclude any individual who EPA finds to own a significant or 
controlling interest in a PRP. Thus, an employee of a PRP could 
participate in a TAG organization as long as that individual 
participated as an affected individual and did not have an interest in 
a PRP deemed significant or controlling by EPA. The key to this 
provision is understanding that EPA's intention is to preclude those 
individuals who have a significant financial stake or other significant 
interest in a PRP. While it could easily be argued that employment is, 
for the individual, financially significant, it is not, in most cases, 
financially significant to the employer.

F. How Many Groups Can Receive a TAG at One Superfund Site? 
(Sec. 35.4040)

    Two themes emerged from the comments offered relative to this 
section. Both comments spoke to EPA's interpretation of CERCLA section 
117. One comment addressed concerns about how EPA has interpreted the 
word ``facility.'' A second commenter registered disagreement with 
EPA's interpretation of CERCLA to allow for a new recipient to receive 
TAG funding at a facility after EPA terminates a previous TAG 
recipient's agreement at the same facility.
    Since the inception of the TAG program, EPA has interpreted the 
term ``facility'' in CERCLA section 117 to mean site. The commenter who 
dissented from this interpretation asserted that ``facility'' in CERCLA 
refers to what has evolved into operable units (OUs) and does not mean 
the entire site. Furthermore, this commenter believes EPA's 
interpretation of ``facility'' undermines program goals because it does 
not allow communities affected by specific operable units to have 
access to TAGs for individual OUs at those sites where the (OUs) are 
great distances apart and found in separate communities. This commenter 
wants EPA to allow separate grants for each OU or allow separate grants 
for communities or municipalities where the OUs of a site are located.
    EPA does not agree with the commenter's interpretation of the term 
``facility'' as used in section 117 of CERCLA. Section 117(e)(1) 
authorizes EPA to award TAGs ``at any facility which is listed on the 
National Priorities List (NPL) under the National Contingency Plan.'' 
As this language implies, EPA does not list individual operable units 
on the NPL but facilities which are often referred to as sites. 
Typically, a site includes more than one operable unit. If EPA were to 
adopt the interpretation of ``facility'' as operable unit for purposes 
of the TAG program and allow every operable unit (e.g., every lagoon, 
pit, or impoundment at a site) to be eligible for a $50,000 TAG, then 
EPA would quickly run out of funding. This interpretation could result 
in one site with multiple OUs receiving TAG funding for each OU while 
another site could end up with no TAG funding at all. Furthermore, EPA 
often does not determine a site's operable units until long after EPA 
lists a site on the NPL. If we waited until all operable units were 
known, communities could be deprived of technical assistance in the 
early stages of the cleanup action.
    EPA is sympathetic to the difficulties that can exist for TAG 
groups at large Superfund sites where there are several different 
communities separated by large distances. As explained above, we cannot 
make multiple grants available for one site. We can, however, provide 
as much assistance as possible to help disparate communities find ways 
to work together including the provision of neutral facilitation 
services when funding for such services exist. (Readers interested in 
facilitation support should contact their EPA regional TAG contact 
about the availability of such facilitation services.) Examples exist 
in the TAG program where several communities affected by large 
Superfund sites have found ways to work together and address their 
individual concerns under one grant. We are eager to support other 
communities in finding the same success.
    The second area of comment offered relative to this section took 
issue with EPA's interpretation of CERCLA to allow a new group to 
receive TAG funding at a site after a previous TAG recipient at the 
same site ends its participation in the TAG program. This commenter 
stated that such an interpretation exceeds the statutory limits because 
section 117(e)(2) of CERCLA provides that ``the amount of any grant 
under this subsection may not exceed $50,000 for a single grant 
recipient'' and ``[n]ot more than one grant may be made under this 
subsection with respect to a single facility, but the grant may be 
renewed to facilitate public participation at all stages of remedial 
action.'' Furthermore, according to the commenter, if EPA awards a 
grant to more than one recipient per site, then EPA would also exceed 
the statutory limitation in section117(e)(2) on the total amount of 
funding available to a TAG recipient. Thus, according to the commenter, 
EPA may renew a TAG, but only to the same recipient and the total sum 
the recipient can receive (regardless of the number of recipients) is 
$50,000, unless EPA waives the funding limit upon a determination that 
additional funding is necessary to carry out the purposes of section 
117.
    EPA disagrees. EPA explained its interpretation in the preamble to 
the proposed TAG rule: ``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.'' Furthermore, while section 117(e) limits the 
number of ``grants'' to one per facility, it does not limit the number 
of consecutive grant recipients to one per facility. It would be 
unreasonable for EPA to read such a limitation into the statute, 
particularly if the result could be that affected communities would 
have no access to a TAG throughout all stages of the response action. 
Indeed, such a narrow interpretation would threaten the very purpose of 
section 117 of CERCLA: to facilitate public participation at Superfund 
sites. Therefore, the final rule continues to allow for multiple 
nonconcurrent recipients of TAGs at eligible Superfund sites.

G. What Requirements Must My Group Meet as a TAG Recipient? 
(Sec. 35.4045)

    EPA received one comment that expressed disagreement with the 
requirement that groups incorporate as nonprofit organizations, a 
requirement not new to the proposed rule. The

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commenter registered the disagreement on the grounds that ``requiring 
an existing organization to set up a separate `shell' corporation to 
receive the grant is unfair to the contractor. If the contractor is not 
paid, he has no legal recourse against the government, and if the grant 
recipient is a `shell' corporation there is no use suing it because it 
has no assets.''
    This comment fails to consider that the intent of the TAG program 
generally and the incorporation requirement in particular, is not to 
secure or advance the legal position of a contractor. Rather, the 
requirement exists because it benefits both EPA and TAG recipients. As 
EPA explained in the preamble to the 1988 interim final rule:

``. . . incorporation offers advantages to both recipients and EPA, 
and does so at relatively little cost to both. Incorporation 
protects individual group members from potentially serious personal 
liability problems that may result if the technical assistance grant 
is awarded to a group or organization that is not incorporated. It 
also reduces or eliminates problems that might otherwise arise from 
the departure of any individual from the recipient group, if it 
lacked the structure created by incorporation. EPA also benefits 
from awarding every grant to a group with the same legal status: a 
corporation with bylaws, officers and official purposes.''

    EPA believes the benefits outlined in the 1988 rule continue to 
exist, and therefore, the final rule continues to require groups to 
incorporate as nonprofit organizations.
    The provisions in this section prohibiting TAG groups from 
restricting access by requiring membership dues or other means garnered 
both supporting and dissenting comments. Specifically, some commenters 
supported the idea of prohibiting TAG groups from restricting access by 
requiring membership dues or other means. Others expressed concern that 
such a prohibition could undermine the financial abilities of an 
organization.
    EPA considered ways to accommodate both viewpoints expressed by 
commenters. We concluded, however, that we should not involve EPA in 
this level of TAG group operation. We determined that our regulation in 
this area should focus on making certain that groups are and remain 
eligible under Sec. 35.4020 and that they administer their grant 
according to the provisions of their grant agreement. Therefore, we 
have removed Sec. 35.4045(c) which stated groups could not restrict 
access by charging membership fees or by using other means to limit 
participation. TAG groups, however, are still obligated pursuant to 
Sec. 35.4140 to disseminate information to the affected community.

H. Must My Group Contribute Toward the Cost of a TAG? (Sec. 35.4050)

    Many commenters expressed satisfaction with EPA's decision to 
eliminate the ``good faith'' requirement for those communities seeking 
a waiver of the 20 percent cost share requirement. One commenter 
expressed support for EPA giving TAG groups the option to not provide a 
cost share altogether. Other commenters suggested that calculating the 
cost share as a part of the reimbursement process is onerous and 
confusing.
    The cost share requirement is a statutory one and, therefore, is 
not a requirement EPA can eliminate through the TAG regulation. We can, 
and believe that this regulation does, make it easier for those groups 
who are financially disadvantaged to receive a waiver to the matching 
share requirement. We are also concerned about the burden associated 
with the cost share calculation tied to the reimbursement process. 
However, we do not believe the TAG rule is the appropriate place to 
address those concerns. Rather, we intend to provide guidance to 
recipients on how to calculate and account for the cost share 
throughout the life of the grant in the forthcoming revised TAG 
guidance. EPA is currently developing new guidance for both the regions 
and recipients, and anticipates having the guidance ready for 
distribution in early 2001.

I. How Can My Group Get More Than $50,000? (Sec. 35.4065)

    This section elicited several comments about expanding the grounds 
for giving TAG recipients additional funding after they have expended 
the original award amount. Specifically, one commenter suggested that 
EPA should automatically grant a recipient a renewal of $50,000 after 
the first year without restriction if the recipient properly expended 
the first award amount. Another commenter suggested EPA add, as a 
reason why a site merits additional funding, the issuance of an 
``Explanation of Significant Differences'' (ESD) by the agency leading 
the cleanup. Two other comments were also offered relative to this 
section. One commenter asked for clarification on what the ultimate cap 
is on the amount a recipient may receive, while the other registered 
disagreement about the fact that existing recipients can receive 
additional funding without having to compete with other community 
groups that are interested in obtaining a TAG.
    Because of the underlying sentiment present in several of the 
comments tied to this section--that EPA should make additional funding 
easier--EPA has made changes to ``How can my group get more than 
$50,000?'' One change is that an ESD will now be another site condition 
factor that may merit additional funding for a site. This change means 
an ESD will be one of ten possible factors to be considered when groups 
want funding above the $50,000 level. Recipients will still have to 
demonstrate the presence of at least three of these ten factors and 
will also have to demonstrate effective management of previous awards.
    A second change to ease funding is that the final rule contains no 
specific limit on how much money can be awarded to a TAG recipient. 
This change makes the regulation consistent with CERCLA, which contains 
no cap on the amount a TAG recipient can receive. The change also means 
EPA regional offices will have complete authority over the decision to 
fund TAGs above $50,000 and therefore, the waiver process will be 
accomplished more quickly. While the final rule contains no pre-
determined limit on funding amounts, requests for waivers to the 
$50,000 limit will still have to meet the conditions found in 
Sec. 35.4065. Also, such requests will be subject to the availability 
of funds.
    EPA cannot automatically award grantees an additional $50,000 after 
the first year if the group managed its first funding amount 
effectively. Under section 117(e)(2) of CERCLA, the $50,000 limit may 
be waived ``where such waiver is necessary to carry out the purposes of 
this subsection.'' Thus, CERCLA requires EPA to make a determination 
that the waiver is necessary to carry out the purposes of section 
117(e). Since a waiver may not in all instances be necessary after the 
first year, it would not be reasonable to provide an automatic waiver 
after one year. A waiver after one year is possible under the final 
rule if three of the ten site condition factors exist and the recipient 
has effectively managed previously awarded funds, but most TAG groups 
will not need a waiver at that time since they will still have 
unexpended funds under the initial grant. (Even though funding periods 
may be negotiated, EPA believes most recipients will want funding 
periods that are longer than one year).
    The last subject touched upon by comments on this section was 
offered by a commenter who believes allowing a TAG recipient to seek 
additional funding without starting the competitive award process over 
again is unfair. This commenter also took issue with the Agency's 
assertion in the preamble to the proposed rule that there is usually

[[Page 58854]]

only one applicant per site. In the case of the Superfund site 
affecting the commenter, there are three groups active at the site. One 
group is a TAG recipient that has received funding above $50,000. The 
commenter feels the other two groups have been ``shut out'' because EPA 
does not allow competition when a site is eligible for additional 
funding.
    This comment speaks to a scenario that has occurred in the TAG 
program over the past several years in which groups that did not apply 
for a grant when one was available take issue with the Agency's 
selection of a recipient. The Agency has decided not to change the rule 
to require another competition. Empirical evidence shows that the 
majority of TAGs awarded have involved sites where only one group 
submitted an application. Nonetheless, EPA recognized, when structuring 
the program, that there may be situations where there is more than one 
eligible candidate for a TAG. This recognition led the Agency to adopt 
an award procedure which includes advertising TAG availability to the 
broad community, encouraging the formation of coalitions where there 
are multiple interested parties and, when coalitions are unable to 
form, allowing for a competitive process to select one recipient. While 
the Agency can advertise TAGs, encourage potential applicants to apply, 
and facilitate the formation of coalitions, ultimately, the decision to 
apply for a grant must be made by organizations themselves.
    Because we are anxious to see, to the greatest extent possible, 
multiple groups coalesce, EPA regional offices may, in some instances, 
provide neutral facilitation and dispute resolution services. These 
services could be used to build a consensus among groups unable to form 
coalitions on their own. Readers interested in this possible resource 
should contact their EPA regional office.

J. How Can My Group Spend TAG Money? (Sec. 35.4070)

    As with the similar comment offered with respect to Sec. 35.4005, 
``What is a TAG?'', a commenter expressed concern that this section 
does not contain a specific reference to redevelopment as an acceptable 
focus of a TAG recipient. EPA believes the use of TAG funds for 
technical assistance in interpreting information regarding 
redevelopment at the site falls under the description of general 
activities found in this section. We have not modified this section of 
the final rule to explicitly include this activity, but Sec. 35.4190, 
``How does my group identify a qualified technical advisor?'' 
contemplates the use of TAG funds for technical assistance in 
interpreting information regarding redevelopment at the site by 
including the types of qualifications a redevelopment technical advisor 
must and should possess. Also, Sec. 35.4005 contains an example of how 
a technical advisor might assist a community in interpreting 
information regarding redevelopment at a site.

K. Are There Things My Group Can't Spend TAG Money for? (Sec. 35.4075)

    The Agency received several comments suggesting that TAG funds be 
available for various kinds of TAG recipient training. For example, one 
commenter suggested that TAGs should be able to fund health and safety 
training using TAG monies. When drafting the proposed rule, EPA 
considered this issue and concluded that since section 117(e) of CERCLA 
only authorizes grants ``to obtain technical assistance in interpreting 
information'' regarding the site, and since health and safety training 
for the members of the group is not necessary in order for the group to 
procure technical assistance, such training is not an eligible TAG 
expenditure. Furthermore, even if the statute could be interpreted 
broadly enough to permit training of TAG members, EPA does not believe 
it would be a wise use of limited TAG funds. Allowing community members 
to receive training so that they could, in essence, act as their own 
advisors would be costly. Furthermore, it is improbable that such 
training by itself would provide members with the level of expertise 
that a technical advisor must have under Sec. 35.4190. EPA also 
believes allowing community training would be fraught with 
administrative problems such as: Which community members could take 
training? What kind of training would be allowable? Given the statutory 
limitation and the administrative difficulties, EPA is maintaining the 
prohibition that communities cannot use TAG funds for training.
    However, EPA supports providing community members with educational 
opportunities through other avenues. One avenue that EPA has been 
pursuing is the development of a series of short educational workshops 
on topics such as an overview of CERCLA and risk assessments. EPA hopes 
efforts such as these workshops will enable community members to 
maximize their participation in decisionmaking at their site without 
using TAG funds.
    Another commenter suggested that EPA allow group members to be 
reimbursed for fuel and other travel expenses (e.g., meals and 
incidentals) per diem when traveling great distances to attend meetings 
(for example, when a trip is more than 60 miles round trip). EPA has 
explicitly prohibited the use of TAG funds for recipient group members' 
travel since publication of the first rule governing TAGs 
(Sec. 35.4055(a)(5) of the Interim Final Rule, 53 FR 9736, 9750 (March 
24, 1988) and the Final Rule, 57 FR 45311, 45318-19 (October 1, 1992). 
EPA continues in this final rule to prohibit fuel and per diem expenses 
as allowable expenses. Our rationale for this prohibition is that such 
expenses are inconsistent with the cost principles stated in the Office 
of Management and Budget (OMB) Circular A-122, and, as EPA stated in 
the 1988 interim final rule,

    ``EPA believes that the primary purpose of the technical 
assistance grant is to assist citizens' groups in obtaining 
technical assistance and not to fund ancillary activities of the 
grant recipient such as travel and training, which, by reducing 
available funds, would detract from or limit the recipient's ability 
to obtain technical advice regarding remedial actions.''

    Finally, one commenter on this section stated that the flat 
prohibition on primary data gathering is wasteful and serves no useful 
purpose. EPA disagrees and points readers to the explanation as to why 
generation of new primary data is not allowable found in the preamble 
to the Interim Final Rule, 53 FR 9736, 9750 (March 24, 1988):

    ``Costs associated with the generation of new primary data are 
not allowable because this would be inconsistent with Congressional 
intent of ``interpreting information.'' In addition, developing new 
primary data, such as sampling data, would be so costly as to 
diminish the recipient's ability to obtain technical assistance 
throughout the entire cleanup process.''

L. Can My Group Get an ``Advance Payment'' To Help Us Get Started? 
(Sec. 35.4085)

    Comments offered on the provision for limited advance payments were 
all positive about the inclusion of the payment provision. However, one 
commenter opined that $2000, rather than $5000, was sufficient for 
covering start-up costs. Despite the concerns of this one commenter, 
the final rule maintains the $5000 amount. EPA has changed, however, 
the requirement that only new groups lacking sufficient resources will 
be eligible for advance funding: the final rule allows any new 
recipient to request advance payment up to $5000. This change does not 
alter the requirement that recipients need to request such funding in 
writing and identify what activities, goods or

[[Page 58855]]

services they need. It also does not alter the limitations on what 
items can be purchased: in particular the final rule continues to 
prohibit the use of advance funding to pay for any kind of contractual 
services and for the costs of incorporation.

M. How Much Time Do My Group or Other Interested Groups Have To Submit 
a TAG Application to EPA? (Sec. 35.4120)

    One commenter asked that the deadline for submitting an application 
(within 60 days from the time the first LOI is submitted) be extended 
for groups lacking human resources. Another commenter expressed 
confusion about the deadlines for different parts of the application 
process. Both of these comments suggest to EPA that the proposed rule's 
explanation of the time frame for the application process was 
confusing.
    Based on the comments we received, we made substantive and 
editorial changes to this section. We changed the final rule by 
explaining that the first important time period for community groups is 
30 days from the date EPA publishes a public notice informing the 
broader community that it has received an LOI. During this first 30 
days, other groups interested in obtaining a TAG will either have to 
form a coalition with other interested groups or submit their own 
individual LOIs. The next important time period is the 30-day period in 
which all groups must submit their applications to EPA; it begins on 
the first day after the first 30-day period ends. Therefore, EPA must 
receive all applications within the 60 days after the public notice 
appears in paper. Only those groups that submitted LOIs in the first 
30-day period will be eligible to submit applications. The time period 
for preparing applications can be extended if any group that submitted 
an LOI writes EPA requesting an extension. If an extension is granted, 
all groups that submitted an LOI will be able to take advantage of the 
extension.
    We have also further clarified the application process in the final 
rule by providing a time frame in which the entire application process 
must end. We have added this additional information because we have 
found over the years that many groups will submit an application within 
the necessary time frame but the applications will be deficient in some 
way. EPA typically works with such applicants by providing extensive 
written comments about what changes need to be made to the application 
to make it complete. However, many groups will take months to finalize 
their applications by incorporating EPA's comments. While EPA does not 
want to penalize those groups who have made a good faith effort at 
completing the application on their first try, we also believe allowing 
the time in which groups finalize their applications to drag on 
indefinitely is unfair to the broader community. Therefore, we have 
added to the final rule a provision allowing groups 90 days to correct 
any deficiencies in their application that EPA has identified to them 
in writing. This 90-day period begins from the date of the letter in 
which EPA explains what changes an application requires. Thus, EPA will 
be able to begin its award decision process no later than the end of 
the 90-day period, or, if EPA does not receive a complete application 
in that 90-day period, then EPA will readvertise TAG availability and 
the award process will begin again.

N. How Does My Group Identify a Qualified Technical Advisor? 
(Sec. 35.4190)

    EPA received mixed opinions about the level of specificity in the 
provision regarding the technical advisor qualifications. One commenter 
suggested the criteria for technical advisors should be very specific 
while others suggested the criteria needed to be very broad and 
flexible. EPA believes the qualifications laid out in the proposed rule 
are satisfactory in that they establish a minimum of necessary 
qualifications without being so restrictive that recipients have no 
flexibility in identifying what they perceive to be their community's 
unique technical advisor needs. Therefore, the final rule maintains the 
technical advisor qualifications found in the proposed rule except for 
a change to the public health technical advisor requirements, a 
description of which follows.
    The change to the public health technical advisor qualifications 
concerns the requirement that such advisors must be associated with 
accredited schools of medicine, public health or accredited academic 
institutions of other allied disciplines. A commenter expressed concern 
that this requirement might exclude well-qualified public health 
experts. EPA agrees, and we removed the requirement. We do continue to 
require, however, that public health technical advisors must have 
received their training at such institutions. Despite the removal of 
the current association with accredited institutions requirement, we 
would like to suggest to TAG recipients seeking assistance in public 
health issues to consider accredited schools of medicine, public health 
or accredited academic institutions of other allied disciplines to be 
potentially good resources for public health technical advisors.

O. Are There Certain People My Group Cannot Select To Be Our Technical 
Advisor, Grant Administrator or Other Contractor Under the Grant? 
(Sec. 35.4195)

    A commenter recommended that if the word ``person'' in Sec. 35.4195 
refers only to individuals (i.e., not entities that might be considered 
juridical persons, such as corporations), then it should be explicitly 
stated in the rule. Section 35.4195(a) specifies the ``people'' who 
cannot be hired as a TAG group's technical advisor, grant 
administrator, or other contractor under the grant. It excludes 
``persons'' who wrote the specifications for the contract; in the case 
of a technical advisor, it excludes ``anyone'' doing work for the 
Federal or state government or any other entity at the site; and 
``anyone'' who is on the List of Parties Excluded from federal 
Procurement or NonProcurement Programs. EPA believes that the purposes 
of this provision would not be served if the organization employing the 
individuals excluded as contractors by this provision were not also 
excluded. Therefore, we have revised Sec. 35.4195 to make it clearly 
applicable to persons, businesses, nonprofit organizations, and any 
other entity.

P. What Restrictions Apply to Contractors My Group Procures for Our 
TAG? (Sec. 35.4200)

    The provision in this section that limits the use of relocation 
technical advisors to those situations where EPA is seriously 
considering relocation drew criticism from commenters to the proposed 
rule. Several organizations who commented on EPA's ``National Superfund 
Permanent Relocation Interim Policy'' (64 FR 37012 (July 8, 1999)), 
which references the TAG rule's ``seriously considering'' provision, 
also expressed concern about it. Both sets of commenters took issue 
with what they perceived to be the rule's lack of consideration about 
whether a community wants to be relocated.
    We agree with commenters that the proposed rule's ``seriously 
considering'' provision limits the ability of a community to consider 
permanent relocation with TAG funds. In reconsidering the provision and 
the comments we received on it, we have determined that relocation 
should not be treated differently than any of the other matters for 
which TAG groups may obtain technical assistance. Accordingly, in the 
final rule we have

[[Page 58856]]

eliminated the requirement that EPA must be seriously considering 
relocation in order for TAG groups to look at permanent relocation. 
EPA's preference, however, continues to be to address the risks posed 
by contamination by using well-designed methods of cleanup which allow 
people to remain safely in their homes and businesses. This preference 
is consistent with the mandates of CERCLA and the implementing 
requirements of the NCP, which emphasize selecting remedies that 
protect human health and the environment, maintain protection over 
time, and minimize untreated waste. Therefore, although the final rule 
does not restrict the circumstances in which TAGs may be used to obtain 
technical assistance regarding relocation, EPA expects that TAG groups 
will choose not to spend their limited TAG funds obtaining technical 
assistance on relocation unless there is a reasonable possibility that 
relocation will be selected as a remedy.

Q. How Does My Group Procure a Technical Advisor or Any Other 
Contractor? (Sec. 35.4205)

    EPA received a comment suggesting a time limit on the amount of 
time EPA could spend reviewing contracts. The commenter said that limit 
should be 15 days. Section 35.4205 requires TAG groups to provide EPA 
the opportunity to review a contract before the group awards or amends 
it. The purpose of this provision is to help recipients--many of whom 
do not have experience awarding a contract under a grant. While EPA is 
not a party to the contract, EPA wants to help recipients award 
contracts that are consistent with the TAG statute and regulations. 
This assistance is particularly important for TAG grantees, which are 
often small organizations. If the TAG group awards a contract for 
activities that are not eligible under the regulations, for example, 
the TAG group may not use TAG funds to pay the contractor for that 
activity and the TAG group may not have another available source of 
funding for the contract. On the other hand, EPA recognizes that 
contract review by EPA may sometimes delay the award of a contract.
    EPA does not believe, however, that the regulation should specify a 
time limit on EPA's review. EPA does not want to suggest that the 
contract is ``approved'' by EPA as a result either of EPA review or a 
lapse of time during which EPA had the opportunity to review it. The 
regulation does not require EPA review or approval of the TAG group's 
contract; it only requires the recipient to give EPA an opportunity to 
review the contract. If the recipient provides EPA the opportunity to 
review the contract, then the recipient will have complied with the 
regulation (as long as the amount of time given to EPA is reasonable 
under the circumstances) even if EPA has not actually reviewed it or 
provided the recipient with any comments on it. EPA, however, strongly 
encourages TAG groups to work with their project officer to come up 
with an appropriate time frame for reviewing contracts in order for 
groups to avoid becoming liable for all or portions of a contract that 
EPA cannot reimburse under the grant. EPA expects to provide 
suggestions for how TAG groups and regional offices can coordinate and 
streamline this review process in forthcoming TAG program guidance.

R. How Does My Group Ensure a Prospective Contractor Does Not Have a 
Conflict of Interest? (Sec. 35.4220)

    A commenter suggested that the phrase ``pending litigation, with 
such parties'' should be clarified to exclude participation in 
unrelated litigation on the opposite side of a PRP because there is no 
conflict of interest in such a situation. Section 35.4220(a) provides 
that in order to ensure that a contractor does not have a conflict of 
interest, your group must require any prospective contractor to 
provide, with its bid or proposal information on its financial and 
business relationships with all PRPs at the site, including ``services 
related to any proposed or pending litigation, with such parties.'' EPA 
agrees that it is unlikely that a contractor involved in unrelated 
litigation on the opposite side of a PRP would have a conflict of 
interest. Therefore, EPA is revising this section to apply (in part) to 
``financial and business relationships with such parties, and services 
provided to or on behalf of such parties in connection with any 
proposed or pending litigation.''

S. Definitions (Sec. 35.4270)

    In our efforts to clarify the meaning of ``affiliated,'' especially 
as it pertains to the relationship between TAG groups and large 
national organizations, we modified the definition of ``affiliated'' by 
inserting a parenthetical statement, ``(i.e., centralized 
decisionmaking and control),'' after ``interlocking management or 
ownership.''
    We have also added definitions for the terms ``Explanation of 
Significant Differences'' (ESD) and ``National Contingency Plan'' 
(NCP). We added ESD because it is now one of ten site factors that can 
be the basis for funding a TAG above $50,000. We included the term NCP 
in the ``Definitions'' because it is part of the definition for ESD.

T. Existing Grants

    One commenter expressed an opinion that EPA should require all 
current TAGs to be administered under the new regulations in order to 
allow communities to benefit from the changes in the revised rule. 
Generally, for substantive requirements applicable to grants, EPA and 
the grantee must follow the regulations that were in effect at the time 
of the grant award. For ease of administration for current TAG 
recipients, EPA will continue to apply all provisions of the TAG 
regulations that were in effect at the time of award. Recipients of 
TAGs under previous regulations may request that their grants be 
administered under this regulation once it is final. Groups wishing to 
be administered under the new regulations must write EPA and request 
that their grant agreements be amended by 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.

U. State Administration

    EPA proposed to move State administration of the TAG program to 
another regulation, 40 CFR part 35, subpart O, which is the regulation 
governing the award of cooperative agreements to States and Indian 
tribes under section 104(d) of CERCLA. However, EPA has decided to 
eliminate altogether the ability of States to administer the TAG 
Program. We base this decision on several factors. One factor is that 
several commenters strongly opposed giving States the ability to 
administer the program. Another factor is that, since 1988, States have 
had the option of administering the program yet none have. This lack of 
implementation suggests to EPA that States are not interested in 
administering the TAG program. Also, while we specifically solicited 
the input of several State organizations on our proposal, none of them 
responded. Furthermore, at sites where the State is a potentially 
responsible party, there is the potential for the community to perceive 
that the State is not administering the TAG grant in a disinterested 
manner. Therefore, this final rule does not contain provisions for the 
States to administer the TAG Program and EPA does not intend to include 
such provisions in other regulatory actions.

[[Page 58857]]

III. Regulatory Analysis

 A. Regulatory Flexibility Act (RFA as Amended by the Small Business 
Regulatory Enforcement and Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 
et seq.)

    Today's final rule is not subject to the RFA, which generally 
requires an agency to prepare a regulatory flexibility analysis of any 
rule that will have a significant economic impact on a substantial 
number of small entities. The RFA only applies to rules subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act (APA) or any other statute. This rule pertains to grants 
which the APA expressly exempts from notice-and-comment rulemaking 
requirements. 5 U.S.C. 553(a)(2). Moreover, section 117 of CERCLA does 
not require EPA to issue a notice of proposed rulemaking.
    Although not subject to the RFA, EPA, nonetheless, considered the 
potential of this final rule to adversely impact small entities subject 
to the rule. EPA concluded that this rule does not adversely impact 
small entities because it includes requirements that are imposed only 
on those entities that voluntarily apply for a grant and are the 
minimum necessary to ensure that grants are awarded and used only for 
authorized purposes. In addition, EPA solicited input and comment on 
the proposed rule from small entities by sending it to current grant 
recipients and their technical advisors, and by publishing a notice of 
proposed rulemaking even though grant related rules are not required to 
undergo notice-and-comment rulemaking.

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 to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. 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. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    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.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments because this rule does not impose any requirements on any 
governments.

C. National Technology Transfer and Advancement Act

    As noted in the proposed rule, section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA 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. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable voluntary consensus standards.
    EPA believes that this final rule does not involve any technical 
standards subject to NTTAA. In the proposed rule, EPA requested anyone 
who disagreed with this conclusion to indicate why the rule is subject 
to the Act and to identify any potentially applicable and voluntary 
consensus standards. EPA received no comments on this matter.

D. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    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 final 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

    In keeping with the requirements of the Paperwork Reduction Act 
(PRA) as amended, 44 U.S.C. 3501 et seq., the information collection 
requirements contained in this rule have been approved by the Office of 
Management and Budget under information request 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)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore 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,

[[Page 58858]]

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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

G. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255 (August 
10, 1999)), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Thus, Executive Order 13132 does 
not apply to this rule. Further, because this rule regulates the use of 
federal financial assistance, it will not impose substantial direct 
compliance costs on the States.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and States, EPA sent the 
proposed regulation with a request for comments to several 
organizations that represent states, including the National Governors 
Association and the National Conference of State Legislatures.

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 final rule does not significantly or uniquely affect the 
communities of Indian Tribal governments. This rule does not apply to 
tribes; rather, it governs the award of technical assistance grants to 
non-profit corporations. 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 final rule will have a disproportionately high 
and adverse human health and environmental effects on any segment of 
the population. In addition, the final rule does not impose substantial 
direct compliance costs on those communities. Accordingly, the 
requirements of the Executive Order do not apply.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by U.S.C. 
804(2). This action will be effective October 2, 2000.

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: September 13, 2000.
Carol M. Browner,
Administrator.

    Accordingly, as set forth in the preamble, the Environmental 
Protection Agency amends 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

General

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

[[Page 58859]]

35.4015   Do certain words in this subpart have specific meaning?

Who Is Eligible?

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

Your Responsibilities as a TAG Recipient

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

How Much Money TAGs Provide

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

What TAGs Can Pay for

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

How You Get the Money

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

How to Apply for a TAG

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

Managing Your TAG

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

Procuring a Technical Advisor or Other Contractor With TAG Funds

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

Requirements for TAG Contractors

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

Grant Disputes, Termination, and Enforcement

35.4245   How does my group resolve a disagreement with EPA 
regarding our TAG?
35.4250   Under what circumstances would EPA terminate my group's 
TAG?
35.4255   Can my group terminate our TAG?
35.4260   What other steps might EPA take if my group fails to 
comply with the terms and conditions of our award?

Closing Out a TAG

35.4265   How does my group close out our TAG?

Other Things You Need to Know

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

Subpart 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;
    (c) Visiting the site vicinity periodically during cleanup, if 
possible, to observe progress and provide technical updates to your 
group; and
    (d) Evaluate future land use options based on land use assumptions 
found in the ``remedial investigation/feasibility study.''


Sec. 35.4010  What does this subpart do?

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


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

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


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

    You should follow the regulations in 40 CFR part 30, except for the 
following

[[Page 58860]]

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


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

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

Who Is Eligible?


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

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


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

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


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

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


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

    Yes, EPA uses the same criteria found in Sec. 35.4020 in evaluating 
the eligibility of your group or any group of individuals who may be 
affected by a release or a threatened release at a Federal facility for 
a TAG under this subpart.


Sec. 30.4040  How many groups can receive a TAG at one Superfund site?

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

Your Responsibilities as a TAG Recipient


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

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


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

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


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

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

[[Page 58861]]

    (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:

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

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

    (a) The EPA regional office award official for your grant may waive 
your group's $50,000 limit if your group demonstrates that:
    (1) If it received previous TAG funds, you managed those funds 
effectively; and
    (2) Site(s) characteristics indicate additional funds are necessary 
due to the nature or volume of site-related information. In this case, 
three of the ten factors below must occur:
    (i) A Remedial Investigation/Feasibility Study (``RI/FS'') costing 
more than $2 million is performed;
    (ii) Treatability studies or evaluation of new and innovative 
technologies are required as specified in the Record of Decision;
    (iii) EPA reopens the Record of Decision;
    (iv) The site public health assessment (or related activities) 
indicates the need for further health investigations and/or health 
promotion activities;
    (v) EPA designates one or more additional operable units after 
awarding the TAG;
    (vi) The agency leading the cleanup issues an ``Explanation of 
Significant Differences'' (ESD);
    (vii) A legislative or regulatory change results in new site 
information after EPA awards the TAG;
    (viii) EPA expects a cleanup lasting more than eight years from the 
beginning of the RI/FS through construction completion;
    (ix) Significant public concern exists, where large groups of 
people in the community require many meetings, copies, etc.; and
    (x) Any other factor that, in EPA's judgment, indicates that the 
site is unusually complex.
    (b) Your group can also receive more than $50,000 if you are 
geographically close to more than one eligible site (for example, two 
or more sites  x  $50,000 = grant of $100,000) and your group wishes to 
receive funding for technical assistance to address multiple eligible 
sites.

What TAGs Can Pay For


Sec. 35.4070  How can my group spend TAG money?

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


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

    Your TAG funds cannot be used for the following activities:
    (a) Lawsuits or other legal actions;
    (b) Attorney fees for services:
    (1) Connected to any kind of legal action; or
    (2) That could, if such a relationship were allowable, be 
interpreted as resulting in an attorney/client relationship to which 
the attorney/client privilege would apply;
    (c) The time of your technical advisor to assist an attorney in 
preparing a legal action or preparing and serving as an expert witness 
at any legal proceeding;
    (d) Political activity and lobbying that is unallowable under 
Office of Management and Budget (OMB) Circular A-122, Cost Principles 
for Non-Profit Organizations (this restriction includes activities such 
as attempting to influence the outcomes of any Federal, State or local 
election, referendum, initiative, or similar procedure through in-kind 
or cash contributions, endorsements, or publicity, or attempting to 
influence the introduction or passage of Federal or state legislation; 
your EPA regional office can supply you with a copy of this circular);
    (e) Other activities that are unallowable under the cost principles 
stated in OMB Circular A-122 (such as costs of amusement, diversion, 
social activities, fund raising and ceremonials);
    (f) Tuition or other training expenses for your group's members or 
your technical advisor except as Sec. 35.4070(b)(3) allows;
    (g) Any activities or expenditures for your group's members' 
travel;

[[Page 58862]]

    (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 to new recipients.


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

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


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

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


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

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

How to Apply for a TAG


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

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


Sec. 35.4106  What information should an LOI include?

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


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

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

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

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

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


Sec. 35.4120  What does my group do next?

    (a) After you submit an LOI, one of the first steps in applying for 
your TAG is determining whether your state requires review of your 
grant application. This review allows your governor to stay informed 
about the variety of grants awarded within your state. This process is 
called intergovernmental review. Your EPA regional office can provide 
you with the contact for your state's intergovernmental review process.
    (b) You should call that state contact as early as possible in the 
application process so that you can allow time for

[[Page 58863]]

this review process which may take up to 60 days.
    (c) EPA cannot process your application package without evidence 
that you have submitted it to the state for review, if your state 
requires it.
    (d) EPA cannot award a TAG until the state has completed its 
intergovernmental review.


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

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


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

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


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

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


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

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


Sec. 35.4145  How much time do my group or other interested groups have 
to submit a TAG application to EPA?

    (a) Your group must file your application with your EPA regional 
office within the second 30 days after the date the public notice 
appears in your local newspaper announcing that EPA has received an 
LOI. This second 30-day period begins on the day after the first 30-day 
period Sec. 35.4115 describes ends. EPA will only accept applications 
from groups that submitted an LOI within 30 days from the date of that 
public notice.
    (b) If your group requires more time to file a TAG application, you 
may submit a written request asking for an extension. If EPA decides to 
extend the time period for applications in response to your request, it 
will notify, in writing, all groups that submitted an LOI of the new 
deadline for submitting TAG applications.
    (c) EPA will not accept other applications or requests for 
extensions after the final application deadline has passed.


Sec. 35.4150  What happens after my group submits its application to 
EPA?

    (a) EPA will review your application and send you a letter 
containing written comments telling you what changes need to be made to 
the application to make it complete.
    (b) Your group has 90 days from the date on the EPA letter to make 
the changes to your application and resubmit it to EPA.
    (c) Once the 90-day period ends, EPA will begin the process to 
select a TAG recipient, or, in the case of a single applicant, if, EPA 
does not receive a complete application (meaning, an application that 
does not have the changes provided in the letter described in paragraph 
(b) of this section), then EPA will readvertise the fact that a TAG is 
available and the award process will begin again.


Sec. 35.4155  How does EPA decide whether to award a TAG to our group?

    Once EPA determines your group meets the eligibility requirements 
in Sec. 35.4020 the Agency considers whether and how successfully your 
group meets these criteria, each of which are of equal weight:
    (a) Representation of groups and individuals affected by the site;
    (b) Your group's plans to use the services of a technical advisor 
throughout the Superfund response action; and
    (c) Your group's ability and plan to inform others in the community 
of the information provided by the technical advisor.


Sec. 35.4160  What does EPA do if more than one group applies for a TAG 
at the same site?

    When multiple groups apply, EPA will rank each applicant relative 
to other applicants using the criteria in Sec. 35.4155.


Sec. 35.4161  Does the TAG application process affect the schedule for 
work at my site?

    No, the schedule for response activities at your site is not 
affected by the TAG process.


Sec. 35.4165  When does EPA award a TAG?

    (a) EPA may award TAGs throughout the Superfund process, including 
during operation and maintenance, but we will not award a TAG before 
the start of your site's response action if the site is proposed for 
listing on the NPL.
    (b) Based on the availability of funds, EPA may delay awards of 
grants to qualified applicants.

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:

------------------------------------------------------------------------
       Type of report         Required information  Timing and frequency
------------------------------------------------------------------------
(a) Federal Cash              The amount of funds   Semiannually within
 Transactions Report.          advanced to you or    15 working days
                               electronically        following the end
                               transferred to your   of the semiannual
                               bank account and      period which ends
                               how you spent those   June 30 and
                               funds.                December 31 of each
                                                     year.
------------------------------------------------------------------------

[[Page 58864]]

 
(b) Minority-Owned Business   Whether your group    Annually, even if no
 Enterprise/Women-Owned        contracted with a     contracts have been
 Business Enterprise (MBE/     MBE/WBE in the past   signed.
 WBE) Utilization.             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 in   Quarterly, within 45
                               chart or narrative    days after the end
                               format of the         of each calendar
                               progress your group   quarter.
                               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 project's   Annually, within 90
                               funds through         days after the
                               identification of     anniversary date of
                               project               the start of your
                               transactions and      TAG project.
                               within 90 days
                               after the end of
                               your TAG's funding
                               period.
------------------------------------------------------------------------
(e) Final Report............  Description of        Within 90 days after
                               project goals and     the end of your
                               objectives,           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;
    (2) Academic training in a relevant discipline (for example, 
biochemistry, toxicology, public health, environmental sciences, 
engineering, environmental law and planning); and
    (3) Ability to translate technical information into terms your 
community can understand.
    (b) Your technical advisor for public health issues must have 
received his or her public health or related training at accredited 
schools of medicine, public health or accredited academic institutions 
of other allied disciplines (for example, toxicology).
    (c) Your group should select a technical advisor who has experience 
working on hazardous or toxic waste problems, relocation, redevelopment 
or public health issues, and communicating those problems and issues to 
the public.


Sec. 35.4195  Are there certain people my group cannot select to be our 
technical advisor, grant administrator, or other contractor under the 
grant?

    Your group may not hire the following:
    (a) The person(s) who wrote the specifications for the ``contract'' 
and/or who helped screen or select the contractor;
    (b) In the case of a technical advisor, a person or entity doing 
work for the Federal or State government or any other entity at the 
same NPL site for which your group is seeking a technical advisor; and
    (c) Any person who is on the List of Parties Excluded from Federal 
Procurement or NonProcurement Programs.


Sec. 35.4200  What restrictions apply to contractors my group procures 
for our TAG?

    When procuring contractors your group:
    (a) Cannot award cost-plus-percentage-of-cost contracts; and
    (b) Must award only to responsible contractors that possess the 
ability to perform successfully under the terms and conditions of a 
proposed contract.


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);

[[Page 58865]]

    (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        must obtain and document oral or
 $1,000 but less than $25,000.        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     must follow the procurement
 than $100,000.                       regulations in 40 CFR part 30
                                      (these regulations outline the
                                      standards for your group to use
                                      when contracting for services with
                                      Federal funds; they also contain
                                      provisions on: codes of conduct
                                      for the award and administration
                                      of contracts; competition;
                                      procurement procedures; cost and
                                      price analysis; procurement
                                      records; contract administration;
                                      and contracts generally).
------------------------------------------------------------------------

    (b) Your group must not divide any procurements into smaller parts 
to get under any of the dollar limits in paragraph (a) of this section.


Sec. 35.4215  What if my group can't find an adequate number of 
potential sources for a technical advisor or other contractor?

    In situations where only one adequate bidder can be found, your 
group may request written authority from the EPA award official to 
contract with the sole bidder.


Sec. 35.4220  How does my group ensure a prospective contractor does 
not have a conflict of interest?

    Your group must require any prospective contractor on any contract 
to provide, with its bid or proposal:
    (a) Information on its financial and business relationship with all 
PRPs at the site, with PRP parent companies, subsidiaries, affiliates, 
subcontractors, contractors, and current clients or attorneys and 
agents. This disclosure requirement includes past and anticipated 
financial and business relationships, and services provided to or on 
behalf of such parties in connection with any proposed or pending 
litigation;
    (b) Certification that, to the best of its knowledge and belief, it 
has disclosed such information or no such information exists; and
    (c) A statement that it will disclose to you immediately any such 
information discovered after submission of its bid or after award.


Sec. 35.4225  What if my group decides a prospective contractor has a 
conflict of interest?

    If, after evaluating the information in Sec. 35.4220, your group 
decides a prospective contractor has a significant

[[Page 58866]]

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)); and
    (3) Access to records (40 CFR 30.48(d)); and
    (h) Provisions that require your contractor(s) to keep the 
following detailed records as Sec. 35.4180 requires for ten years after 
the end of the contract:
    (1) Acquisitions;
    (2) Work progress reports;
    (3) Expenditures; and
    (4) Commitments indicating their relationship to established costs 
and schedules.

Requirements for TAG Contractors


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

    A TAG contractor must comply with the following provisions when 
awarding subcontracts:
    (a) Section 35.4205 (b) pertaining to documentation;
    (b) Section 35.4205 (c) and (f) pertaining to cost;
    (c) Section 35.4195 (c) pertaining to suspension and debarment;
    (d) Section 35.4200 (b) pertaining to responsible contractors;
    (e) Section 35.4205 (g) pertaining to disadvantaged business 
enterprises;
    (f) Section 35.4200 (a) pertaining to unallowable contracts;
    (g) Section 35.4235 pertaining to contract provisions; and
    (h) Cost principles in 48 CFR part 31, the Federal Acquisition 
Regulation, if the contractor and subcontractors are profit-making 
organizations.

Grant Disputes, Termination, and Enforcement


Sec. 35.4245  How does my group resolve a disagreement with EPA 
regarding our TAG?

    The regulations at 40 CFR 30.63 and 31.70 will govern disputes 
except that, before you may obtain judicial review of the dispute, you 
must have requested the Regional Administrator to review the dispute 
decision official's determination under 40 CFR 31.70(c), and, if you 
still have a dispute, you must have requested the Assistant 
Administrator for the Office of Solid Waste and Emergency Response to 
review the Regional Administrator's decision under 40 CFR 31.70(h).


Sec. 35.4250  Under what circumstances would EPA terminate my group's 
TAG?

    (a) EPA may terminate your grant if your group materially fails to 
comply with the terms and conditions of the TAG and the requirements of 
this subpart.
    (b) EPA may also terminate your grant with your group's consent in 
which case you and EPA must agree upon the termination conditions, 
including the effective date as 40 CFR 30.61 describes.


Sec. 35.4255  Can my group terminate our TAG?

    Yes, your group may terminate your TAG by sending EPA written 
notification explaining the reasons for the termination and the 
effective date.


Sec. 35.4260  What other steps might EPA take if my group fails to 
comply with the terms and conditions of our award?

    EPA may take one or more of the following actions, under 40 CFR 
30.62, depending on the circumstances:
    (a) Temporarily withhold advance payments until you correct the 
deficiency;
    (b) Not allow your group to receive reimbursement for all or part 
of the activity or action not in compliance;
    (c) Wholly or partly ``suspend'' your group's award;
    (d) Withhold further awards (meaning, funding) for the project or 
program;
    (e) Take enforcement action;
    (f) Place special conditions in your grant agreement; and
    (g) Take other remedies that may be legally available.

Closing Out a TAG


Sec. 35.4265  How does my group close out our TAG?

    (a) Within 90 calendar days after the end of the approved project 
period of the TAG, your group must submit all financial, performance 
and other reports as required by Sec. 35.4180. Upon request from your 
group, EPA may approve an extension of this time period.
    (b) Unless EPA authorizes an extension, your group must pay all 
your bills related to the TAG by no later than 90 calendar days after 
the end of the funding period.
    (c) Your group must promptly return any unused cash that EPA 
advanced or paid; OMB Circular A-129, Policies for Federal Credit 
Programs and Non-Tax Receivables, governs unreturned amounts that 
become delinquent debts.

Other Things You Need To Know


Sec. 35.4270  Definitions.

    The following definitions apply to this subpart:
    Advance payment means a payment made to a recipient before 
``outlays'' are made by the recipient.
    Affected means subject to an actual or potential health, economic 
or environmental threat. Examples of affected parties include people:
    (1) Who live in areas near NPL facilities, whose health may be 
endangered by releases of hazardous substances at the facility; or
    (2) Whose economic interests are threatened or harmed.
    Affiliated means a relationship between persons or groups where one 
group, directly or indirectly, controls or has the power to control the 
other, or, a third group controls or has the power to control both. 
Factors indicating control include, but are not limited to:
    (1) Interlocking management or ownership (e.g., centralized 
decisionmaking and control);
    (2) Shared facilities and equipment; and
    (3) Common use of employees.
    Allocable cost means a cost which is attributable to a particular 
cost objective, such as a grant, project, service, or other activity, 
in accordance with the relative benefits received. A cost is allocable 
to a Government award if it is treated consistently with other

[[Page 58867]]

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.
    Explanation of Significant Differences (ESD) means the document 
issued by the agency leading a cleanup that describes to the public 
significant changes made to a Record of Decision after the ROD has been 
signed. The ESD must also summarize the information that led to the 
changes and affirm that the revised remedy complies with the ``National 
Contingency Plan'' (NCP) and the statutory requirements of CERCLA.
    Federal facility means a facility that is owned or operated by a 
department, agency, or instrumentality of the United States.
    Funding period (previously called a ``budget period'') means the 
length of time specified in a grant agreement during which your group 
may spend Federal funds. A TAG project period may be comprised of 
several funding periods.
    Grant agreement or award document is the legal document that 
transfers money or anything of value to your group to accomplish the 
purpose of the TAG project. It specifies funding and project periods, 
EPA's and your group's budget share of eligible costs, a description of 
the work to be accomplished, and any additional terms and conditions 
that may apply to the grant.
    In-kind contribution means the value of a non-cash contribution 
used to meet your group's matching funds requirement in accordance with 
40 CFR 30.23. An in-kind contribution may consist of charges for 
equipment or the value of goods and services necessary to the EPA-
funded project.
    Letter of intent (LOI) means a letter addressed to your EPA 
regional office which clearly states your group's intention to apply 
for a TAG. The letter tells EPA the name of your group, the Superfund 
site(s) for which your group intends to submit an application, and the 
name of a contact person in the group including a mailing address and 
telephone number.
    Matching funds means the portion of allowable project cost 
contributed toward completing the TAG project using non-Federal funds 
or Federal funds if expressly authorized by Federal statutes. The match 
may include in-kind as well as cash contributions.
    National Contingency Plan (NCP) means the federal government's 
blueprint for responding to both oil spills and hazardous substance 
releases. It lays out the country's national response capability and 
promotes overall coordination among the hierarchy of responders and 
contingency plans.
    National Priorities List (NPL) means the Federal list of priority 
hazardous substance sites, nationwide. Sites on the NPL are eligible 
for long-term cleanup actions financed through the Superfund program.
    Operable unit means a discrete action defined by EPA that comprises 
an incremental step toward completing site cleanup.
    Operation and maintenance means the steps taken after site actions 
are complete to make certain that all actions are effective and working 
properly.
    Outlay means a charge made to the project or program that is an 
allowable cost in terms of costs incurred or in-kind contributions 
used.
    Potentially responsible party (PRP) means any individual(s) or 
company(ies) (such as owners, operators, transporters or generators) 
potentially responsible under sections 106 or 107 of CERCLA (42 U.S.C. 
9606 or 42 U.S.C. 9607) for the contamination problems at a Superfund 
site.
    Project manager means the person legally authorized to obligate 
your group to the terms and conditions of EPA's regulations and the 
grant agreement, and designated by your group to serve as its principal 
contact with EPA.
    Project period means the period established in the TAG award 
document during which TAG money may be used. The project period may be 
comprised of more than one funding period.
    Reasonable cost means a cost that, in its nature or amount, does 
not exceed that which would be incurred by a prudent person under the 
circumstances prevailing at the time the decision was made to incur the 
costs.
    Recipient means any group that has been awarded a TAG.
    Record of decision (ROD) means a public document that explains the 
cleanup method that will be used at a Superfund site; it is based on 
technical data gathered and analyses performed during the remedial 
investigation and feasibility study, as well as public comments and 
community concerns.
    Remedial investigation/feasibility study (RI/FS) means the phase 
during which EPA conducts risk assessments and numerous studies into 
the nature and extent of the contamination on site, and analyzes 
alternative methods for cleaning up a site.
    Response action means all activities undertaken by EPA, other 
Federal agencies, States, or PRPs to address the

[[Page 58868]]

problems created by hazardous substances at an NPL site.
    Start of response action means the point in time when funding is 
set-aside by either EPA, other Federal agencies, States, or PRPs to 
begin response activities at a site.
    Suspend means an action by EPA that temporarily withdraws Federal 
sponsorship under an award, pending corrective action by the recipient 
or pending a decision to terminate the award by the Federal awarding 
agency. Suspension of an award is a separate action from suspension 
under Federal agency regulations implementing Executive Orders 12549 (3 
CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 Comp., p. 235), 
Debarment and Suspension.


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

    EPA Headquarters and the regional offices that follow have the 
documents this subpart references available if you need them:
    (a) TAG Coordinator or Grants Office, U.S. EPA Region I, John F. 
Kennedy Federal Building, Boston, MA 02203.
    (b) TAG Coordinator or Grants Office, U.S. EPA Region II, 290 
Broadway, New York, NY 10007-1866.
    (c) TAG Coordinator or Grants Office, U.S. EPA Region III, 1650 
Arch Street, Philadelphia, PA 19106.
    (d) TAG Coordinator or Grants Office, U.S. EPA Region IV, Atlanta 
Federal Center, 61 Forsyth Street, Atlanta, GA 30303.
    (e) TAG Coordinator or Grants Office, U.S. EPA Region V, Metcalfe 
Federal Building, 77 W. Jackson Blvd., Chicago, IL 60604.
    (f) TAG Coordinator or Grants Office, U.S. EPA Region VI, Wells 
Fargo Bank, Tower at Fountain Place, 1445 Ross Avenue, Suite 1200, 
Dallas, TX 752020-2733.
    (g) TAG Coordinator or Grants Office, U.S. EPA Region VII, 901 N. 
5th Street, Kansas City, KS 66101.
    (h) TAG Coordinator or Grants Office, U.S. EPA Region VIII, 999 
18th Street, Suite #500, Denver, CO 80202-2466.
    (i) TAG Coordinator or Grants Office, U.S. EPA Region IX, 75 
Hawthorne Street, San Francisco, CA 94105.
    (j) TAG Coordinator or Grants Office, U.S. EPA Region X, 1200 6th 
Avenue, Seattle, WA 98101.
    (k) National TAG Coordinator, U.S. EPA Mail Code: 5204-G, Ariel 
Rios Building, 1200 Pennsylvania Avenue, NW, Washington, DC 20460.

[FR Doc. 00-24047 Filed 9-29-00; 8:45 am]
BILLING CODE 6560-50-U